Intellectual Property Law Commons^™

Soft-Science Examiners At The Uspto: A Non-Obvious Solution To Reduce Erroneous Patent Grants, Mandy Barbara Seuffert

Marquette Intellectual Property Law Review

Soft science graduates can participate in patent application review, or secondary review, at the USPTO when there exists a question as to a patent's validity or obviousness. Four reasons militate in favor of including soft science patent application reviews: (1) the PTO can increase the number of examiners at a relatively low cost; (2) more time can be devoted to each questionable patent application review; (3) soft science examiners use complimentary skills and insights that might promote fewer erroneous patent approvals; and, (4) fewer parties will be forced to litigate over patent validity. This paper examines the rising problems associated …

"Infringed" Versus "Infringing": Different Interpretations Of The Word "Work" And The Effect On The Deterrence Goal Of Copyright Law, Sarah A. Zawada

Marquette Intellectual Property Law Review

One of the key elements that courts use to determine an appropriate statutory damage award in a copyright infringement case is the number of infringements of a copyright. How does a court determine the number of infringements when one infringing article has been printed six times in over one hundred copies of a magazine? Before the Copyright Act of 1976 went into effect, many courts adhered to the "multiplicity doctrine" and would have awarded statutory damages in the above scenarios for each of the six times that the infringing article was printed or the infringing song was played. Post-1976, however, …

Corporate Patents: Optimizing Organizational Responses To Innovation Opportunities And Invention Discoveries, Richard Gruner

Marquette Intellectual Property Law Review

This article examines the interplay between patent incentives and corporate innovation. It argues that innovation concerning today's complex technologies often requires efforts on a corporate organizational scale and that changes in patent and corporate laws are needed to fully promote effective and efficient innovation in corporate environments. The prevalence of patent ownership and exploitation by corporations reflects a fundamental but poorly appreciated truth about modern technological innovation. Patent incentives influencing individuals don't bring most new inventions to the public. Rather, in many recently developed technology areas, corporate-initiated efforts are the primary sources of publicly valuable innovation and, hence, the main …

Of The Inequals Of The Uruguay Round, Srividhya Ragavan, Srividhya Ragavan

Marquette Intellectual Property Law Review

Ten years ago, the TRIPs Agreement set a distinct tone in international law by requiring Members to prioritize international trade obligations as a means to achieve national goals. Within the next five years, the AIDS crisis highlighted that compromising pressing national responsibilities-like a looming public health crisis-to fulfill international obligations may, in fact, detrimentally affect international trade. Meanwhile, access to medication continues to be an unresolved issue even as we celebrate the tenth anniversary of TRIPs and the end of the transitional period. This Article suggests that the success of TRIPs depends on its ability to address national responsibilities that …

Table Of Contents

Marquette Intellectual Property Law Review

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Legal Protocols And Practices For Managing Copyright In Electronic Theses, Mark Perry, Paula Callan

Law Publications

At Queensland University of Technology (QUT) in Brisbane Australia, PhD and Masters by Research candidates are required to deposit both print and digital copies of their theses and dissertations. The fulltext of these digital theses is then made freely available online via the Australian Digital Thesis (ADT) collection. Management of copyright issues has been a major headache and workload problem for the Library: there are many parties involved in the deposit process, and the lack of a common understanding about the rights and responsibilities of the various stakeholders has made the process very complex and time consuming. The response of …

The Public Interest In Moral Rights Protection, Margaret Ann Wilkinson

Law Publications

No abstract provided.

The Economics Of Build-Out Rules In Cable Television, George S. Ford, Thomas M. Koutsky, Lawrence J. Spiwak

UC Law SF Communications and Entertainment Journal

Firms that wish to offer wireline, multichannel video programming services in direct competition with cable incumbents are being faced with calls by those incumbents and policymakers to "build-out" to entire communities as a pre-condition to receiving a franchise. This article argues that build-out mandates are actually counter-productive and serve primarily to deter new entry, increase the profits of incumbents, and harm consumers. Using both a theoretical model and an empirical simulation, the article demonstrates that build-out rules cause new video entrants to bypass certain communities entirely and to sharply lower the number of communities in which new network construction would …

Idea Protection In California: Are Writers Too Readily Compensated For Their Screenplays, Kelly Rem

UC Law SF Communications and Entertainment Journal

This article argues that the current scope of idea protection in the film industry favors writers over producers. By undervaluing the rights of the producers, the current state of the law could have a chilling effect on film production that is damaging to society as a whole. Requiring a showing of a common element between a writer's work and a producer's alleged copy of the writer's work, and presenting a similarity of subject matter and story line, will strike a better balance between these competing interests.

Catching Up To Our Biometric Future: Fourth Amendment Privacy Rights And Biometric Identification Technology, Rudy Ng

UC Law SF Communications and Entertainment Journal

As biometric identification technology companies strive to make their products more accurate, faster, and more affordable for the mass market, the public is likely to see an increase in the use of biometrics in the future. While emerging biometric identification technology such as iris scanning and face recognition technology may be a fast, cutting-edge way for law enforcement to keep track of convicted felons and suspected terrorists, the government should not be allowed to unreasonably intrude on individual privacy rights under the Fourth Amendment. Ultimately, the legislature and the courts will need to weigh society's need to feel secure against …

Locking Down The Library: How Copyright, Contract, And Cybertrespass Block Internet Archiving, Rebecca Bolin

UC Law SF Communications and Entertainment Journal

Internet archiving has kept millions of websites from disappearing completely. Yet this ambitious effort, the largest archiving project in history, is neither legal nor comprehensive. Archives are rampant copyright infringers with no recourse to traditional library and affirmative defenses. Further, sophisticated authors have started "protecting" their creations with restrictive contracts, technical restrictions, and the shaky cybertrespass doctrine. Our legal regime has strayed from the constitutional values underlying copyright. Despite the social value in preserving cultural expression, the law has evolved to encompass a de facto right to withdraw and opt out of history itself.

Digitized Scholarship And The Library Concept: Allowing The History Of The Library Exemption To Inform How We View Google's Digitized Library, Kodj Gbegnon

UC Law SF Communications and Entertainment Journal

Google Inc., one of the most visible portals on the Internet, strives to "organize the world's information and make it universally accessible and useful." However, Google's Print Library database, which copies millions of books into a database and offers snippets of those books free of charge, may exceed the current confines of copyright law. After an in-depth look at Google's digitization projects and specific criticisms from library specialists, this article argues that the library exception to copyright infringement must be re-conceptualized to include commercial information enterprises such as Google's Print Library.

Can Copyright Lend Its Cinderellaic Magic To Chinese Folklore?, 5 J. Marshall Rev. Intell. Prop. L. 203 (2006), Deming Liu

UIC Review of Intellectual Property Law

Folklore in China is disappearing and facing challenges for its very survival. To salvage folklore in China, some have called for immediate legislative action and proposed the law of copyright or sui generis protection as some potential solutions. However, copyright is traditionally concerned with the creations of individuals rather than the cumulative creations of an ethnic group or region. Furthermore, even sui generis protection, which is better adapted to folklore in theory, could be susceptible in practice to the abuses of private monopolies or state tyranny. Overall, the protection of folklore depends more on a consistent governmental policy of open-mindedness …

Taming The Code: Effectively Implimenting Software Patents, 5 J. Marshall Rev. Intell. Prop. L. 382 (2006), Anthony E. Anderson

UIC Review of Intellectual Property Law

Software patents are a sore subject for many programmers. Although still in their infancy, they have managed to anger many of those in the programming community. Software patents started to evolve in the early 80’s through multiple court decisions that eventually defined software as statutory patentable material. Although patentable, software has proven to be a formidable match for the examination process. The examination process has proven ineffective in properly examining software patent applications and as result multiple lawsuits based on frivolous patents have emerged. Potential battles such as the one between Creative and Apple over Creative’s patent for a hierarchal …

Special 301: Trips Plus – Alive And Kicking, 5 J. Marshall Rev. Intell. Prop. L. 651 (2006), Vicki Allums

UIC Review of Intellectual Property Law

Despite significant strides and multilateral agreements, including requirements for enforcing intellectual property, trademark counterfeiting and copyright piracy remain a persistent problem for intellectual property owners as reflected in the 2006 Special 301 Report issued by the Office of the United States Trade Representative on April 28, 2006. Border measures are a key tool in the United States fight against counterfeiting and piracy at U.S. borders in the global economy where goods are manufactured in different countries and sold worldwide. How does the United States prevent infringing works from crossing its borders and assist its trading partners in creating border enforcement …

Trademark Parodies: When Is It Ok To Laugh?, 6 J. Marshall Rev. Intell. Prop. L. 72 (2006), Emily Adelman

UIC Review of Intellectual Property Law

In trademark parodies, there is a fine line between what is considered a First Amendment right to freedom of speech and what constitutes an unlawful appropriation, or trademark infringement. Current judicial decisions have been inconsistent across the different jurisdictions, thus making it unclear to parodists as to what may be lawfully appropriated when creating their parodies. This comment proposes that a new balancing test be used that is specific to trademark parodies. This new test will help to create more concrete guidelines that will reduce the amount of subjectivity that is currently used in trademark parody analysis.

Equal Protection In The World Of Art And Obscenity: The Art Photographer's Latent Struggle With Obscenity Standards In Contemporary America, Elaine Wang

Vanderbilt Journal of Entertainment & Technology Law

Part I of this article describes the initial hurdles that all visual art forms, including photography, face with respect to First Amendment protection given the power of visual imagery and the three-pronged test for obscenity set forth in Miller v. California. Of particular relevance is the "serious artistic value" prong of the Miller test and the problems inherent in determining who is to judge as well as how one might judge whether a work, particularly a photograph that may be construed to have a non-artistic function, possesses "serious artistic value."

Part II addresses the overall approach to photography in three …

Rules V. Standards For Patent Law In The Plant Sciences, Mark D. Janis

Articles by Maurer Faculty

This article argues that US patent jurisprudence as applied to the plant sciences is moving to a second stage that will be characterized by more by incremental calibration than by spectacular change. The article discusses two doctrines of patent scope that are likely to be implicated in calibrating the utility patent system for the plant sciences: enablement and experimental use. It considers how those doctrines may be refined to serve as calibration tools in the application of patent law to the plant sciences.

Brazil's Recent Threat On Abbott's Patent: Resolution Or Retaliation, Jennifer Bjornberg

Northwestern Journal of International Law & Business

In June 2005, Brazil threatened to infringe the patent of an anti-AIDS medication, Kaletra, patented and produced by a U.S. based pharmaceutical company, Abbott Laboratories. The resulting controversy necessarily implicated the World Trade Organization's Agreement on Trade Related Aspects of Intellectual Property ("TRIPS Agreement") as Brazil was a Member Nation under the agreement and Abbott's product was protected under that agreement. Ultimately, the threat came to a voluntary resolution between both parties, but the dispute raised a number of unique questions relating to international trade and public health concerns. This article will discuss the recent controversy between Abbott and Brazil …

Rationalizing Software Patents: Suggestions For A Livable System, Shane Glynn

UC Law SF Communications and Entertainment Journal

In examining the historical development of software as patentable subject matter, the jurisprudence of the Supreme Court and Federal Circuit, the Patent and Trademark Office's regulations and guidelines, and the application of these rules in the legal and business community, this article explores the deficiencies of the current US software patent system. The article argues that by increasing patent examiners' knowledge of computer science and publishing domestic patent applications to allow competitors to search for relevant prior art, the US software patent system can be significantly improved.

The Rave Act: A Specious Solution To The Serious Problem Of Increased Ecstasy Distribution: Is It Unconstitutionally Overbroad, Erin Treacy

UC Law SF Communications and Entertainment Journal

The RAVE Act was designed to thwart use and distribution of the illegal street drug ecstasy by holding the owner of a nightclub or other venue criminally responsible for any illegal drug-related activities that occur at an electronic music concert held on his or her property. This article argues that the RAVE act is unconstitutionally overbroad because it has a real and substantial impact on the First Amendment rights of electronic music concert performers and attendees. The article further argues that the RAVE act has driven electronic music concerts underground, making them less regulated than if held in legitimate commercial …

Catching A Black Cat In A Dark Room: Evaluating The Shortcomings Of Federal And State Anti-Spyware Legislation, Josh Sugnet

UC Law SF Communications and Entertainment Journal

This note analyzes state anti-spyware legislation and the latest federal anti-spyware bill, considering criticism raised and evaluating their potential to be effective in stopping spyware. The note concludes that these laws are best aimed at regulating the use of adware, the allegedly more legitimate commercial type of spyware, but do little to protect users from more malicious types of spyware authored by hackers and cyber-criminals. Also, the federal government must regulate the software industry to ensure that a competitive market for technological solutions to these security problems exists. Only by coupling law enforcement with effective industry regulation can the federal …

A Minor Conundrum: Contracting With Minors In Canada For Film And Television Producers, Bob Tarantino

UC Law SF Communications and Entertainment Journal

Concerns surrounding the enforcement of a contract with minors have plagued the entertainment industry, particularly in the areas of film and television. Amidst a confusing hodgepodge of laws, various North American jurisdictions have responded with a series of judicial decisions and legislative initiatives. These changes have increased marketplace certainty for the benefit of film producers and the minors with which they do business. The Canadian province of Ontario, however, remains without the benefit of such a regime of laws, creating uncertainty in Ontario's film and television marketplace. If Ontario wishes to develop as a major film and television production center, …

The Recasting Of Copyright & Related Rights For The Knowledge Economy, P Bernt Hugenholtz, Mireille Van Eechoud, Stef J. Van Gompel, Natali Helberger, Lucie Guibault

Reports & Public Policy Documents

In the European Union, copyright law is increasingly a matter for the European legislator. Member states retain ever less competence to regulate intellectual property rights.

This study critically examines the 'acquis communautaire' in the field of copyright and related (neighbouring) rights, focusing on the seven copyright specific directives, from the 1991 Software directive to the 2001 Information Society Directive. It also deals with distinct issues that are on the agenda of the EU: After reviewing arguments for and against the extension of the term of protection of phonograms (sound recordings), the authors conclude there is no convincing case for extending …

Misunderestimating Dastar: How The Supreme Court Unwittingly Revolutionized Copyright Preemption, Tom W. Bell

Maryland Law Review

No abstract provided.

The Dilution Solution: Populating The Trademark A-List, Scott C. Wilcox

Michigan Law Review First Impressions

In our celebrity-conscious culture, the media serve as arbiters of fame. The editors of Us Weekly and People wield significant influence over public recognition of celebrities. Since the Federal Trademark Dilution Act (“FTDA”) amended the Lanham Act in 1995, federal courts have adopted similar roles as arbiters of fame, determining which trademarks are sufficiently famous to receive federal protection against dilution. Recent changes to the Lanham Act, however, reserve the availability of dilution actions to “A-list” marks. These changes fulfill the objectives of trademark law while achieving Congress’s intent in enacting the FTDA.

The Trademark Dilution Revision Act Of 2006: A Welcome—And Needed—Change, Dale M. Cendali, Bonnie L. Schriefer

Michigan Law Review First Impressions

Some have argued that the changes to the Federal Trademark Dilution Act (the “FTDA”) embodied in the recently enacted Trademark Dilution Revision Act of 2006 (the “TDRA”) threaten to infringe upon the right to free speech. This is simply not the case. The FTDA has always protected First Amendment rights, and the TDRA clarifies and strengthens those protections. While the concept of dilution was introduced in 1927, there was no federal dilution law in the United States until 1995, when Congress passed the FTDA. Since then, various federal courts have reached different conclusions regarding issues such as: (1) what constituted …

What Is Dilution, Anyway?, Stacey L. Dogan

Michigan Law Review First Impressions

Ever since the Supreme Court decided Moseley v. V Secret Catalogue, Inc. in 2003, an amendment to the Federal Trademark Dilution Act (“FTDA”) has appeared inevitable. Congress almost certainly meant to adopt a “likelihood of dilution” standard in the original statute, and the 2006 revisions correct its sloppy drafting. Substituting a “likelihood of dilution” standard for “actual dilution,” however, does not resolve a deeper philosophical question that has always lurked in the dilution debate: what is dilution, and how does one prove or disprove its probability? The statutory definition notwithstanding, this issue remains largely unanswered, leaving the courts with the …

Dilution's (Still) Uncertain Future, Graeme B. Dinwoodie, Mark D. Janis

Michigan Law Review First Impressions

Dilution looked to be a potent weapon when Congress introduced it as § 43(c) of the Lanham Act in 1995. Indeed, some observers feared that it would be too potent (and in some contexts, such as cybersquatting, it successfully augmented traditional causes of action). But a series of court decisions, culminating in the Supreme Court’s 2003 Moseley v. V Secret Catalogue opinion, weakened dilution protection so profoundly that what remained wasn’t of much consequence. Congress has recently sought to breathe new life into dilution law, enacting the Trademark Dilution Revision Act of 2006 (“TDRA”). Some might see this as a …

Digital Copyright, Jessica D. Litman

Books

In 1998, copyright lobbyists succeeded in persuading Congress to enact laws greatly expanding copyright owners' control over individuals' private uses of their works. The efforts to enforce these new rights have resulted in highly publicized legal battles between established media and new upstarts.

In this book, law professor Jessica Litman questions whether copyright laws crafted by lawyers and their lobbyists really make sense for the vast majority of us. Should every interaction between ordinary consumers and copyright-protected works be restricted by law? Is it practical to enforce such laws, or expect consumers to obey them? What are the effects of …