Intellectual Property Law Commons^™

Icannsucks.Biz (And Why You Can’T Say That): How Fair Use Of Trademarks In Domain Names Is Being Restrained, Adam Goldstein

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Golden Rice: A Case Study In Intellectual Property Management And International Capacity Building, Stanley P. Kowalski, R. David Kryder

RISK: Health, Safety & Environment (1990-2002)

The authors examine the management of risks associated with intellectual property linked to agri-biotech products, with emphasis on the international movement of agri-biotech intellectual property from industrialized to developing nations.

Locating Inevitable Disclosure's Place In Trade Secret Analysis, Jennifer L. Saulino

Michigan Law Review

For ten years, William Redmond, Jr., worked for PepsiCo, the maker of the sports drink All-Sport. Redmond's status as General Manager gave him access to trade secrets. PepsiCo protected those trade secrets by contract, and, as is typical, PepsiCo required Redmond to sign a confidentiality agreement covering all "confidential information relating to the business of [PepsiCo]." This confidentiality agreement, like most of its kind, protected the company from the danger that an employee who knew secret information would change jobs and disclose that information. In late 1994, Redmond accepted a position with Quaker's Gatorade division, a major competitor of PepsiCo's …

Universal City Studios, Inc. V. Corley: The Constitutional Underpinnings Of Fair Use Remain An Open Question, Harry Mihet

Duke Law & Technology Review

At first blush, the Copyright Clause and the First Amendment of the United States Constitution appear to serve conflicting interests and to exist in irrevocable tension. On one hand, the Copyright Clause grants authors "the exclusive Right to their respective Writings and Discoveries," thereby prohibiting others from utilizing certain forms of expression. On the other hand, the First Amendment prohibits Congress from "abridging the freedom of speech" and expression. ;Thus, by simultaneously prohibiting the use of another's expression and safeguarding expression, the two provisions appear to be on a constitutional collision course.

Transcript For Welcome Address , Andrew Pike

American University Law Review

No abstract provided.

Symposium: The Human Genome Project, Dna Science And The Law: The American Legal System's Response To Breakthroughs In Genetic Science: Biographies Of Participants

American University Law Review

No abstract provided.

Transcript For Panel One: Intellectual Property And Genetic Science: The Legal Dilemmas Symposium, American University Law Review

American University Law Review

No abstract provided.

Hold-Up And Patent Licensing Of Cumulative Innovations With Private Information, James Bessen

Faculty Scholarship

When innovation is cumulative, early patentees hold claims against later innovators. Then potential hold-up may cause prospective second stage innovators to forego investing in R&D. It is sometimes argued that ex ante licensing (before R&D) avoids hold-up. This paper explores ex ante licensing when information about development cost is private. In this case, contracts may not be written ex ante. Moreover, the socially optimal division of profit occurs with weak patents and ex post licensing. Empirical evidence on licensing conforms to a model with private information. In some innovative industries, little ex ante licensing occurs, suggesting hold-up remains a problem.

Appreciating Legislative History: The Sweet And Sour Spots Of The Dmca's Commentary, David Nimmer

Cardozo Law Review

No abstract provided.

Fraud And Enforceability: Potential Implications For Federal Circuit Litigation, Michael Kim

Duke Law & Technology Review

Should fraudulent litigation tactics and testimony affect the validity of underlying patents? What results are possible if the enforceability of a patent turns on the conduct of the applying party not only before the Patent and Trademark Office, but also before circuit courts? The author of the following article considers these questions in light of the recent Aptix Corp. case.

Facing The Music: The Dubious Constitutionality Of Facial Recognitiontechnology, John J. Brogan

UC Law SF Communications and Entertainment Journal

Recent advances in biometric identification technology, along with ever more extensive databases of information about ordinary citizens, inspire concern among civil liberties advocates about whether there are any meaningful limits on government's ability to keep track of ordinary citizens. In this Article, Professor Brogan discusses facial recognition technology, and argues that courts should draw a distinction between wide area scans, which should be severely limited or banned, and focused facial scans, which may be allowable under limited circumstances involving particularized suspicion.

Speaking Out Of Thin Air: A Comment On Hurley V. Irish-American Gay, Lesbian And Bisexual Group Of Boston, Randall P. Bezanson, Michele Choe

UC Law SF Communications and Entertainment Journal

The appropriation and use of others' speech - through quotation, compilation, or republication - is ubiquitous; however, traditional First Amendment jurisprudence is often at a loss when it confronts "speech selection judgments." In this Comment, the Authors explore the phenomenon of speech selection, and the attributes of speaking and communication that may account for its status as speech under the First Amendment. The Authors then analyze the Supreme Court's reasoning in a single case, Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, according to four different theories of speech and communication; in order to comment on ambiguities inherent …

The Unblazed Trail: Bioinformatics And The Protection Of Genetic Knowledge, Lawrence M. Sung

Faculty Scholarship

No abstract provided.

Treaty Law And Legal Transition Costs, Michael P. Van Alstine

Faculty Scholarship

No abstract provided.

Beyond Napster: Using Antitrust Law To Advance And Enhance Online Music Distribution, Matthew Fagin, Frank Pasquale, Kim Weatherall

Faculty Scholarship

What should be the broad principles guiding the copyright and competition policy governing online music? In short, what are the key concerns or values that we want preserved in relation to the distribution of music online? We will outline the background to the present investigations and existing law in Part I and argue in Part II that these concerns can be encapsulated in two broad areas: (1) the preservation of some scope for private and personal use and (2) the encouragement and growth of a diverse sector for the distribution of copyrighted works online. We also argue that, at least …

Free As The Air: Rethinking The Law Of Story Ideas, Brian Devine

UC Law SF Communications and Entertainment Journal

This note discusses idea submissions in Hollywood, arguing for the necessity of idea protection in the entertainment industry. As in copyright, the law should provide protection for ideas to promote progress and incentives to create, thus achieving the aims of intellectual property. Devine states that the most significant form of protection for ideas is achieved through contract law, and he argues that preemption by federal copyright law is endangering idea protection.

The Tragicomedy Of The Public Domain In Intellectual Property Law, Samuel Oddi

UC Law SF Communications and Entertainment Journal

As the overall amount of protected and protectable subject matter expands, duration of protection grows longer, and overlap between types of protection increases, constituencies who rely upon intellectual subject matter as stimuli for the creative process grow concerned about incursions of the private domain into the public. This Article explores the relationship between the public domain as a source of sensory stimuli, the creative process as a generator of ideas, and the interaction among the public and private domains and the intellectual process - both in a "state of nature" and under the protections of an intellectual property system - …

An Economic Assessment Of Ucita, Robert W. Hahn, Anne Layne-Farrar

UC Law SF Communications and Entertainment Journal

The Uniform Computer Information Transactions Act ("UCITA") is a model contract law for computer products. This note examines the potential advantages and disadvantages of adopting the UCITA and discusses its effects on consumer transactions. Benefits include reducing costs and providing a consistent standard of law. Hahn and Layne-Farrar conclude that the prospective benefits of passage of the UCITA outweigh any potential burdens.

Proposal For A Centralized And Integrated Registry For Security Interests In Intellectual Property, William J. Murphy

Law Faculty Scholarship

As the world economy enters the twenty-first century, job and wealth creation is increasingly based on innovation and creativity that, in turn, can give rise to important intellectual property rights. For many companies and individuals these intellectual property rights may represent their most valuable assets, or in some cases, their only valuable assets. As a result, intellectual property rights increasingly play a critical the role in financing.

Unlocking the job and wealth creating potential of intellectual property assets requires putting these assets into use, and that often requires a capital investment. Unfortunately, many entrepreneurs and innovators lack the capital necessary …

Direct Judicial Review Of Pto Decisions: Jurisdictional Proposals, Thomas G. Field Jr

Law Faculty Scholarship

Judicial review of U.S. Patent and Trademark Office ("PTO") decisions is complex-- perhaps more than that of any other agency. One source of complexity is that courts review its decisions both collaterally and directly.

One goal of this article is to map possible routes to judicial review and suggest strategies for avoiding jurisdictional uncertainties and delay. The core thesis of this article, however, is that parties should not need to cope with arcane review schemes. Direct PTO review can and ought to be simplified. This can be accomplished by adjusting the Federal Circuit's original and appellate jurisdiction.

Chevron Deference To The Uspto At The Federal Circuit, Thomas G. Field Jr.

Law Faculty Scholarship

Courts have long deferred to agency views of law, but they have also often refused. The Federal Circuit, too, defers on some occasions but not others. This paper examines the apparent inconsistency in its cases.

Research Versus Development: Patent Pooling, Innovation And Standardization In The Software Industry, 1 J. Marshall Rev. Intell. Prop. L. 274 (2002), Daniel Lin

UIC Review of Intellectual Property Law

Despite the impressive pace of modern invention, a certain “patent thicket” effect that may be impeding what has become an increasingly difficult road to the commercialization of new technologies. Specifically, as new technologies build upon old technologies, they necessarily become increasingly complex, and as a result, are often subject to the protection of multiple patents, covering both the new cumulative technologies as well as old foundational technologies. The difficulties of acquiring licenses (e.g. hold-out problems) for all such patents has the potential to stifle the development and commercialization of these new technologies. As such, patent pooling, once condemned as facilitating …

Adequacy Of The 1995 Antitrust Guidelines For The Licensing Of Intellectual Property In Complex High Tech Markets, Clovia Hamilton

Winthrop Faculty and Staff Publications

In 1995, the Department of Justice and the Federal Trade Commission adopted new guidelines for those wishing to license intellectual property rights without violating antitrust laws. Designed to provide clarity, these guidelines instead breed confusion because they misunderstand the nature of intellectual property markets and provide insufficient guidance in the most difficult areas. Section I of this article will discuss the basic provisions of the guidelines, especially their treatment of "innovation markets." It argues that government enforcers should focus primarily on activity that creates entry barriers. Understanding the use and misuse of licensing is the key to analyzing barriers in …

Copyright Limitations And Contracts. An Analysis Of The Contractual Overridability Of Limitations On Copyright, Lucie Guibault

Articles, Book Chapters, & Popular Press

Traditional copyright law strikes a delicate balance between an author's control of original material and society's interest in the free flow of ideas, information, and commerce. In today's digitally networked environment, this balance has shifted dramatically to one side, as powerful rights holders contractually impose terms and conditions of use far beyond the bounds set by copyright law. This vitally significant book explores this conflict from its gestation through its current manifestations to its future lineaments and potential consequences. Focusing on statutory copyright limitations that enshrine constitutional rights such as freedom of expression and privacy, foster dissemination of knowledge, safeguard …

Just Who Is The Person Having Ordinary Skill In The Art? Patent Law's Mysterious Personage, Joseph P. Meara

Washington Law Review

Various patent validity and infringement questions are decided against the standard of the "person having ordinary skill in the art" (Phosita). For example, under 35 U.S.C. § 103(a), an invention must be nonobvious to one of ordinary skill in the art to be granted a patent. In this context, the Federal Circuit has set out six factors for measuring the level of skill of Phosita, yet the court has provided remarkably little guidance in their use and their relationship to nonobviousness. This situation has led to confusion and difficulties among courts trying to assess Phosita's skill. This Comment argues that …

On Red-Haired Waitresses, Shakespeare, And Product Configuration: A Response To Justice Stevens, 1 J. Marshall Rev. Intell. Prop. L. 218 (2002), Kenneth L. Port

UIC Review of Intellectual Property Law

Justice John Paul Stevens’ Inaugural Lecture in Trademark Law honoring Beverly Pattishall truly is a memorable read. Justice Stevens has provided a clear rationale for the Supreme Court’s most recent line of trade dress cases that most thought impossible. In fact, most have not even thought that there was a rationale, let alone a clear one, to a line of cases where the Court seems to be straining to balance the competing interests in American trademark jurisprudence. Rather than the arbitrary conclusion reached by the Supreme Court in distinguishing product configuration from product packaging, most commentators have recommended a more …

The Digital Millennium Copyright Act: A Review Of The Law And The Court's Interpretation, 21 J. Marshall J. Computer & Info. L. 1 (2002), Neil A. Benchell

UIC John Marshall Journal of Information Technology & Privacy Law

In this review of the Titles I and II of the Digital Millennium Copyright Act, the author first discusses recent case laws affecting the Act. Then, he analyzes sections of the Act, such as the anti-circumvention provisions, constitutionality of the Act, the ISP safe harbor provision, etc. Within each sectional reviews, the author discusses case laws that exemplify courts' interpretation of the Act. In the end, the author discusses the future of the Act. First, he argues that the Act would be challenged under constitutional grounds. The Framers of the Constitution never intended to grant a perpetual monopoly for copyright …

Quo Vadis?, Arthur J. Gajarsa

Marquette Intellectual Property Law Review

At the Fifth Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property, held by Marquette University Law School on April 22, 2002, the Honorable Arthur J. Gajarsa delivered a speech entitled "Quo Vadis?" or "Where goest thou?" After articulating the strides made in intellectual property law over the past 20 years, Judge Gajarsa proposed and explained three technical areas where the court may see the most action over the next 20 years: (1) software and business methods; (2) biotechnology; and (3) nanotechnology.

Harmonizing Scope And Allocation Of Patent Rights In Europe - Towards A New European Patent Law, Christopher Heath

Marquette Intellectual Property Law Review

A rise in European Patent litigation has increased awareness of patent enforcement and its difficulty given the lack of harmony between the European Patent Convention (EPC) and the European Community (Community) patent laws. The EPC and the Community have both attempted to harmonize certain aspects of their patent laws. In 1999, the EPC Member States developed four options for structuring a European system of patent enforcement. In 2000, the Community developed its regulation system known as the Community Patent Regulation. The author believes that the two proposals are great attempts but fail to address two key aspects: (1) the allocation …

Understanding The Impact Of The Digital Millennium Copyright Act On The Open Source Model Of Software Development, Theodore C. Mccullough

Marquette Intellectual Property Law Review

Mr. McCullough discusses the Digital Millennium Copyright Act (DMCA), and the traditional and open source models of software development. He argues that the "DMCA supports the 'Traditional Model' of software development, at the expense of the 'Open Source Model,' by limiting the ability of open source developers to write programs that increase interoperability and by limiting their ability to engage in peer review for such programs." He also discusses the competing interpretations of the Reverse Engineering Safe Harbor and proposes statutory solutions to the overall lack of protection afforded to software developers using copyrightable materials to promote interoperability.