Intellectual Property Law Commons^™

Prospecting Or Cybersquatting: Registering Your Name Before Someone Else Does, 35 J. Marshall L. Rev. 287 (2002), Benjamin B. Cotton

UIC Law Review

No abstract provided.

Subjecting Rembrandt To The Rule Of Law: Rule-Based Solutions For Determining The Patentability Of Business Methods, R. Carl Moy

Faculty Scholarship

This article is an attempt to refine the substantive law of patents as to reestablish the patent system's control over the determination of whether business methods are patentable. It offers a framework for addressing business methods that allows the system to stay focused on the traditional goals of the statutory subject-matter requirement. It solves some of the problems that modern business methods present. The problems that it does not solve, it at least explains in a manner that sheds some light on the nature of the tasks that remain. This article takes considerable notice of how the relevant legal rules …

Golfers' Tort Liability - A Critique Of An Emerging Standard, Daniel E. Lazaroff

UC Law SF Communications and Entertainment Journal

This article argues that the recklessness standard applied by most contemporary courts to tort claims initiated by one sports participant against a co-participant is inappropriate in the context of golf. Rather, Professor Lazaroff asserts that golf is an activity in which a negligence standard should apply and that this lower threshold for liability can be utilized without chilling participation or altering the inherent nature of the sport. In sum, the recklessness standard generally used for more active or contact sports is unnecessary in the more passive and genteel setting of golf competition.

The Digital Divide And Equal Access To Justice, Mark Lloyd

UC Law SF Communications and Entertainment Journal

This article begins by considering the problem of equal access to justice between those with access to communication technology and those without. It then goes on to challenge the current market-centered technology by exploring some of the dangers and limits of new communications technology as a corrective to a problem that has long divided rich and poor, a problem that defines the degree to which we can truly call ourselves a civilization, and the real and important opportunities made possible by new technologies.

Ownership Issues In The Digital Divide, Yale M. Braunstein

UC Law SF Communications and Entertainment Journal

Unlike broadcast and telecommunications media, the Internet has developed largely without governmental regulation both in terms of service and content providers. Major communications and media firms essentially control both access to and content of the Internet. Policies to promote access to the Internet are crucial in closing the gap in the digital divide. This article focuses on how the concentration of ownership impacts Internet access and content, as well as on how industry structure affects broadband access.

Digital Divide, Digital Opportunities: A Statistical Overview, Lee Price

UC Law SF Communications and Entertainment Journal

Excerpted from remarks made at the Comm/Ent Symposium on the Digital Divide.

On The Digital Divide: Selected Remarks, Carl Wood

UC Law SF Communications and Entertainment Journal

Excerpted from remarks made at the Comm/Ent Symposium on the Digital Divide.

Toward A Cautious Approach To Obeisance: The Role Of Scholarship In Patent Law Jurisprudence, Craig Allen Nard

Faculty Publications

This article explores the role of secondary authority in patent law jurisprudence. I reviewed every Federal Circuit published opinion from 1982 (the year of the court's creation) to 2000. I discuss the results of my empirical research and explore why scholarship has a place in the Federal Circuit's patent law jurisprudence. I ultimately urge the court to be cautiously more receptive to secondary authority when deciding patent cases.

Revenge Of The Record Industry Association Of America: The Rise And Fall Of Napster, Vickie L. Feeman

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

New Laws, New Technology: Copyright Law Struggles With Change, Mary Lafrance

Scholarly Works

This article examines the development of copyright law in 2000 and 2001.

Recent Developments In Copyright Law: Technology And International Trade Play Starring Roles, Mary Lafrance

Scholarly Works

The once staid field of copyright law has undergone a dramatic revolution in recent years, as new technologies and international trade pressures have spurred legislative change, while challenging the federal courts to find answers to those questions that Congress has not resolved or, in some cases, to questions that recent acts of Congress have created. This article explores recent developments in copyright law in 2002.

Nevada’S Employee Inventions Statute: Novel, Nonobvious, And Patently Wrong, Mary Lafrance

Scholarly Works

In its Seventy-First Session, the Nevada Legislature enacted a new statute, S. B. 558, granting employers complete ownership of any work-related inventions created by their employees, regardless of whether the employer contributed any resources whatsoever to the inventive process. This stunning reversal of longstanding common law was little noticed by the public, and was debated only superficially in the state legislature before receiving its overwhelming vote of approval.

This Article examines Nevada's new employee invention statute from the perspectives of common law and public policy. It compares Nevada's new statute with the traditional common law rules governing employee inventions, as …

Congress Trips Over International Law: Wto Finds Unfairness In Music Licensing Act, Mary Lafrance

Scholarly Works

Intellectual property law reform in the United States frequently involves balancing the interest rights of holders against the interests of users. As international agreements play an increasingly important role in the development of domestic intellectual property law, striking this balance has become a more complicated process.

Whereas, a few decades ago, resolving the competing needs of owners and users often could be accomplished purely as a matter of domestic policy – whether the outcome was based on high-minded principle, interest group politics, or simple pragmatism – today the proposed resolution to such a conflict more often than not must be …

Authorship And Termination Rights In Sound Recordings, Mary Lafrance

Scholarly Works

In late 1999, Congress amended the definition of "works made for hire" in § 101 of the Copyright Act to make explicit its intent to include sound recordings as a category of works eligible for this status. The amendment was repealed with retroactive effect less than a year later. All this happened—pardon the expression—in record time.

This odd course of events was precipitated by a request from the record industry, represented by the Recording Industry Association of America ("RIAA"), which persuaded Congress, shortly before passage of the Intellectual Property and Omnibus Communications Reform Act of 1999, to add a "technical …

Whatever Happens To Works Deferred?: Reflections On The Ill-Given Deferments Of The Copyright Term Extension Act, J. Michael Keyes

Seattle University Law Review

In contrast to the limited judicial writings on the CTEA, there is a healthy stock of insightful scholarly works on the CTEA festooning the legal journals throughout the country. This article leaps into the scholarly fray and focuses on the domestic policy justifications and assumptions relied upon by Congress in enacting the CTEA. In so doing, this article argues that the CTEA is premised upon a wayward copyright philosophy and unsupported congressional assumptions. The article also posits a modest alternative to the CTEA that would be more consonant with the philosophical tenets of copyright and more apt to achieve the …

Legal Protection For Software: Still A Work In Progress, Robert W. Gomulkiewicz

Articles

Software began as geekware-something written by programmers for programmers. Now, software is a business and consumer staple. Cryptic character-based user interfaces have given way to friendly graphical ones; multi-media is everywhere; people own multiple computers of varying sizes; computers are connected to one another across the globe; email and instant electronic messages have replaced letters and telephone calls for many people.

The issue of whether the law should protect software seems quaint to us now. Over the past twenty-five years, legislatures and courts have concluded that copyright, patent, trade secret, trademark, and contract law all can be used to protect …

Cyberproperty And Judicial Dissonance: The Trouble With Domain Name Classification, Xuan-Thao Nguyen

Articles

The nature of cyberspace continues to be woven into the fabric of our daily existence. Not surprisingly, cyberspace and the expansion of e-commerce pose challenges to existing law, particularly the legal definition of cyberproperty domain names. The nature of cyberspace allows many e-companies to possess no traditional assets such as buildings and inventories. Some e-companies own few computers, often using service providers to maintain their web sites. In the virtual space that e-companies inhabit, the primary assets that e-companies own are intangibles such as domain names, customer information, and intellectual property that includes business method patents, copyrights, and trademarks.

Domain …

Commercial Law Collides With Cyberspace: The Trouble With Perfection – Insecurity Interests In The New Corporate Asset, Xuan-Thao Nguyen

Articles

The recent downturn in the economy, particularly in the e-commerce sector, reveals many e-companies heading toward bankruptcy with cyberassets, such as domain names, as their most valuable corporate assets. Lending institutions and other creditors that have extended loans to such e-companies obviously want to get their hands on these bankrupt estates. Which creditor will have priority in the new cybercollateral of domain names? The answer to creditor priority questions may depend on whether domain names are intangible property for purposes of secured transactions. If so, should security interests in domain names be perfected under the Uniform Commercial Code or under …

Rethinking The United States First-To-Invent Principle From A Comparative Law Perspective: A Proposal To Restructure § 102 Novelty And Priority Provisions, Toshiko Takenaka

Articles

This Article first examines the novelty and priority provisions of first-to-file countries, and then compares them with U.S. counterparts to identify major differences and determine why these differences result. The Article discusses the origins of the complex structure adopted by § 102 to define prior art and the difficult interpretation given to terms used in the novelty definition. This Article then reviews the USPTO's practice of the novelty examination and the priority determination in interference proceedings. This review confirms the first-to-file patent professional's perception that the United States, in fact, follows the first-to-file principle, although it also provides an exception …

Misstatements Of Fact In Adam Vangrack's Student Note: A Letter To The Editors Of The Washington University Law Quarterly, Jeffery Fagan, James S. Liebman, Valerie West

Faculty Scholarship

The Quarterly's Fall 2001 issue published a Note reviewing our report, A Broken System: Error Rates in Capital Cases, 1973-1995. That Note has three inaccuracies that are so clear and frequently repeated, and are the result of such clear cite-checking lapses, that remedial steps are required. These matters do not involve differences of opinion, judgment, or interpretation between us and the Note's author. Matters of that sort are appropriately addressed in a response. All instead are misstatements of fact that result from the Quarterly's failure to fulfill its basic obligation to check the accuracy of verifiable factual statements it …

Public Vs. Proprietary Science: A Fruitful Tension?, Rebecca S. Eisenberg, Richard R. Nelson

Articles

What should be public and what should be private in scientific research? The competitive sprint of public and private laboratories to complete the sequence of the human genome has brought this question to the fore. The same question frames the developing struggle over terms of access to human embryonic stem cell lines and the conflict between Microsoft and the open source movement over how best to promote software development. We expect such conflicts to become more widespread as the role of for-profit research expands in a broader range of scientific fields. Will science progress more swiftly and fruitfully if its …

Patent Signals, Clarisa Long

Faculty Scholarship

Courts and commentators often treat intellectual property as if the private value of the rights stemmed entirely from the control legal rules conferred over the protected subject matter. While the literature has devoted an enormous amount of time, paper, and ink to the discussion of whether legal rules grant the optimal amount of exclusivity, it has not considered whether it has been examining all the functions of patents This Article provides a new general framework for analyzing the function and effect of intellectual property rules. Rather than focusing on patents as a mechanism for privatizing information, this Article instead frames …

Draft Convention On Jurisdiction And Recognition Of Judgments In Intellectual Property Matters, Rochelle Cooper Dreyfuss, Jane C. Ginsburg

Faculty Scholarship

The proposed Hague Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters is currently drafted to cover most fields of private litigation, including intellectual property. However, as those following the Hague process are aware, the Convention has run into considerable difficulties. There is currently reason to be concerned that it may not be promulgated at all, or that if it is promulgated, that it will be reduced in scope and cover only select areas of litigation, likely not to include intellectual property. This proposal is meant to spur the intellectual property bar to consider whether it would be …

How Copyright Got A Bad Name For Itself, Jane C. Ginsburg

Faculty Scholarship

This Essay does not attempt a comprehensive review of recent U.S. copyright legislation and caselaw. Instead, it offers an analytical framework that will allow me to be both informative and opinionated. I propose first to expose some examples of the kind of copyright owner overreaching that has correctly given copyright a bad name. I then will argue that not all the bad publicity is deserved. Rather, much of the last years' legislation and caselaw, instead of overreaching, appropriately reaches out to address new problems prompted by new technologies, so as to strike a happier balance between copyright owner, intermediary, and …

"Unitorrial" Marks And The Global Economy, 1 J. Marshall Rev. Intell. Prop. L. 191 (2002), Doris E. Long

UIC Review of Intellectual Property Law

The early decades of the 21st Century may well become known in the annals of intellectual property development as the period when “everything old is new again.” There is one ancient doctrine that has not yet enjoyed a similar renaissance, despite its clear application to today’s new, global, digital economy. It is the old (and currently discredited) view that trademarks and other commercial symbols are universal in nature. First given credence in early US cases regarding the importation of grey market, or parallel imports, the doctrine of universality was gradually replaced by a view of trademarks as creatures of nation …

Trade Dress Protection And The Problem Of Distinctiveness, 1 J. Marshall Rev. Intell. Prop. L. 225 (2002), Mark V.B. Partridge

UIC Review of Intellectual Property Law

The problem of trade dress protection is this: What rules should we apply to trade dress protection to best satisfy the goals of trademark law? The merit of various proposed solutions can be measured by evaluating how effective they are in achieving those goals in various disputes. Both distinctiveness and likelihood of confusion should be understood from the perspective of the relevant public, not from that of the court, the trademark owner or the infringer. The questions we seek to answer only have coherent meaning if we consider the perception of the public. Otherwise, we are unable to determine if …

The Three Stages To Successful Appellate Advocacy Before The Federal Circuit, 1 J. Marshall Rev. Intell. Prop. L. 238 (2002), Charles W. Shifley

UIC Review of Intellectual Property Law

To succeed at the CAFC, the advocate must succeed in three stages of appeal. The first stage of appeal is actually the stage of proceedings in the trial court. The trial court proceedings are the first stage of appeal because in the absence of correct advocacy in the trial court, there is no opportunity for appeal. The action in the trial court need not be the success of winning at trial. It must, however, at least be the success of preserving issues for appeal – preserving critical error that cannot be remedied at the trial level. In the second stage …

An Enzo White Paper: A New Judicial Standard For A Biotechnology "Written Description" Under 35 U.S.C. § 112, ¶ 1, 1 J. Marshall Rev. Intell. Prop. L. 254 (2002), Harold C. Wegner

UIC Review of Intellectual Property Law

The April 2, 2002, Federal Circuit opinion in Enzo Biochem, Inc. v. Gen-Probe Inc., may have the greatest potential impact on a multidimensional basis of any decision from that court in recent years. Far more important than whatever disruption takes place domestically—which may be fixed through Congressional or further judicial action—one must look to the foreign impact of the Enzo opinion. This decision threatens to undermine the patent basis for American protection of biotechnology inventions abroad, once the case is understood and embodied in the several foreign patent laws. Problems with Enzo are not limited to biotechnology. What’s good for …

Go To Jail - Do Not Pass Go, Do Not Pay Civil Damages: The United States’ Hesitation Towards The International Convention On Cybercrime’S Copyright Provisions, 1 J. Marshall Rev. Intell. Prop. L. 364 (2002), Adrienne N. Kitchen

UIC Review of Intellectual Property Law

The problem of combating copyright infringement increases tenfold when considered in light of today’s global and digital environment. As more authors seek copyright protection, others seek to get around it by evading jurisdictional reach. The Council of Europe has developed the world’s first International Convention on Cybercrime, which incorporates harsh substantive copyright provisions but neglects to include effective enforcement protocols. This Comment proposes that the United States not rush to adopt the Council of Europe’s Convention, but rather seek a more definitive and effective solution in a singularly-focused agreement on intellectual property rights in a global economic context.

Prosecution Laches As A Defense To Infringement: Just In Case There Are Any More Submarines Under Water, 1 J. Marshall Rev. Intell. Prop. L. 383 (2002), Gregory F. Sutthiwan

UIC Review of Intellectual Property Law

The comment examines prosecution history laches as an infringement defense in the context of the pending litigation against the Jerome Lemelson Medical Education & Research Foundation. Jerome Lemelson amassed over five hundred patents during his lifetime. Of these, a few key patents have priority based on initial disclosures over forty years ago. Through multiple continuances however, the patents were not issued until decades later and are thus currently enforceable. Lemelson’s foundation has been aggressively seeking royalties based on these, so called “submarine patents,” against bar-code technology users. This comment discusses the problems posed by “submarine patents” and proposes guidelines for …