Intellectual Property Law Commons^™

What Is Hiding In The Bushes - Ebay's Effect On Holdout Behavior In Patent Thickets, Gavin D. George

Michigan Telecommunications & Technology Law Review

Importantly, at least a few relevant patent holders are inevitably left out of an industry organization's collection of patents. These left-out patent holders, known as "holdouts," can undermine the collective arrangement with demand letters and infringement suits.[...] The first part of this Note explains why holdouts exist in the first place, given the benefits of joining an organization of collected patents. In the second part of this Note, I explore the lack of legal protections against holdout demands offered by pre-eBay patent law. The third part of this Note introduces the eBay decision as revolutionary addition to list of legal …

Fair Use And The Digital Millennium Copyright Act, Thomas J. Loos

Michigan Telecommunications & Technology Law Review

In the last decade of the 20th Century, more than 200 years after the first Copyright Act of 1790, the rights of copyright owners have increased relative to those of the public. The Visual Artists Rights Act of 1990 provided a limited right to visual artists to control their work; even after sold, limiting first use rights. The first copyright act had a 28 year term; in 1998, the term of copyright was increased to the life of the author plus 70 years. The Digital Millennium Copyright Act (DMCA) of 1998 dramatically shrank the fair use rights provided under 17 …

Restoring The Genetic Commons: A Common Sense Approach To Biotechnology Patents In The Wake Of Ksr V. Teleflex , Anna Bartow Laakmann

Michigan Telecommunications & Technology Law Review

In this Article, I argue that a new approach to biotechnology patenting is necessary to fully realize the tremendous potential of recent advances in our understanding of the human genome. Part I places the gene patenting debate in context by highlighting the key landmarks that have shaped the biotechnology industry and outlining the products and stakeholders that comprise the industry. Part II describes the current state of the law on biotechnology patents, summarizing the Federal Circuit's application of the various doctrines that collectively define the patent landscape's parameters. In this Part, I explain how the Federal Circuit's jurisprudence is tied …

The Patent End Game: Evaluating Generic Entry Into A Blockbuster Pharmaceutical Market In The Absence Of Fda Incentives, Jeremiah Helm

Michigan Telecommunications & Technology Law Review

Generic drugs play an important role in the American system of health care. Most anticipate that the entry of these drugs into the market will lower prices and thereby increase treatment options for consumers. To stimulate generic entry, the Food and Drug Administration currently offers a period of marketing exclusivity to the first firm that gains approval for a generic version of a branded drug. During this 180-day period, only two firms can sell versions of the drug: the original, branded drug maker and the first approved generic firm. After the period of exclusivity expires, other generic firms are free …

Copyright And Youtube: Pirate's Playground Or Fair Use Forum?, Kurt Hunt

Michigan Telecommunications & Technology Law Review

The entertainment industry has a history of framing new technology as piracy that threatens its very existence, regardless of the potential benefits of the technology or the legal limits of copyright rights. In the case of YouTube, copyright owners' attempts to retain content control negatively impact the public's ability to discuss culture in an online world. This implicates the basic policy behind fair use: to prevent copyright law from "stifl[ing] the very creativity which that law is designed to foster." The internet has become a powerful medium for expression. It is a vital tool in today's world for sharing original …

The Trademark Jurisprudence Of Judge Rich, Jeffrey M. Samuels, Linda B. Samuels

American University Law Review

For nearly forty-three years, Giles Sutherland Rich served as a member of the U.S. Court of Customs and Patent Appeals (C.C.P.A.) and its successor court, the U.S. Court of Appeals for the Federal Circuit. Judge Rich is widely regarded as one of the most influential jurists in the area of patent law—and rightfully so. Less well known is that Judge Rich also authored many significant decisions in the area of trademark law. Judge Rich’s opinions in the area of trademarks span the spectrum of trademark registrability issues and explore important issues of public policy. This Article reviews a number of …

To Live In In-‘Fame’-Y: Reconceiving Scandalous Marks As Analogous To Famous Marks, Jasmine C. Abdel-Khalik

Faculty Works

In 1905, Congress enacted a revised trademark registration act, which included a prohibition on registering marks containing or consisting of scandalous or immoral material. Because Congress failed to provide any further guidance either in legislative history or in the statutory language, administrative bodies and the courts have struggled to define this standard. Over the past century, decisions applying this prohibition have been inconsistent. The general public and potential trademark owners are unable to predict accurately if a mark will be accepted or refused for federal registration, which has some significant benefits. Perhaps because of this uncertainty, some estimate that hundreds …

Constitutionalizing Mandatory Retraction In Defamation Law, Elad Peled

UC Law SF Communications and Entertainment Journal

This article discusses mandatory retraction, which court rulings and legal literature rarely have addressed. The article proposes a solution designed to provide adequate protection for the reputation of public figures, which may be defined as "constructive mandatory retraction." Under the proposed solution, courts handling public figures' libel actions against the media would be empowered to grant a new remedy, namely, a declaratory judgment stating that the falsity of the defaming publication has been established by clear and convincing proof, accompanied by an injunctive relief ordering the defendant to report on that decision in a prominent manner. Courts may grant this …

Betting On Success: Can The Unlawful Internet Gambling Enforcement Act Help The United States Achieve Its Internet Gambling Policy Goals, James N. Brenner

UC Law SF Communications and Entertainment Journal

This note addresses the effectiveness of the Unlawful Internet Gambling Enforcement Act (UIGEA) in achieving the United States' policy goals on tnternet gambling. This note does not discuss the wisdom of the United States' policy on Internet gambling, or the wisdom of the government's choice to prohibit, instead of regulate, Internet gambling to achieve its policy goals. Rather, this note focuses on whether or not the UIGEA adequately addresses the policy concerns over offshore Internet casinos. First, this note discusses federal laws, treaties, proposed legislation, and policy concerns which address Internet gambling. Second, this note discusses the language of the …

Rethinking Patent Law’S Uniformity Principle, Craig Allen Nard, John F. Duffy

Faculty Publications

Modern law on expert testimony insists, as a condition of admissibility, that the asserted expertise be determined by the trial judge to be reliable. Reliability is usually characterized as a dichotomous attribute of evidence, as if expertise were either reliable or unreliable. This article argues that making progress in the development of meaningful and appropriate restrictions on the admissibility of expert testimony requires that we abandon this conceptualization and understand the implications of endorsing a gradational notion of reliability in which evidence can be more or less reliable and in which a comparative assessment of reliability is prominent. Consistent with …

Messages From The Front: Hard Earned Lessons On Information Security From The Ip Wars, 16 Mich. St. J. Int'l L. 71 (2007), Doris E. Long

UIC Law Open Access Faculty Scholarship

Cyberspace is often a battlefield with a wide array of armies posed to challenge one another across the increasing array of rhetoric and technology that has made it such a potent arena for global digital commerce. Perry Barlow's infamous demand that cyberspace be left to its own devices because of its unique unregulated nature may have been answered by Larry Lessig's reply that code may in fact be used to regulate cyberspace, but the reality is that social norming demands, the evanescence of technological controls, and the perceived utility of illicit conduct utilizing the internet make any regulation problematic at …

Promoting Diverse Cultural Expression: Lessons From The U.S. Copyright Wars, Raymond Shih Ray Ku

Faculty Publications

In 2007, the United Nations adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expression (CCD) with the goal of creating an environment that encourages individuals and social groups to create, distribute, and have access to diverse cultural expression from their own cultural and from cultures around the world. With regard to domestic and international efforts to implement the CCD and reconcile its goals with other international norms, the author argues that valuable lessons can be learned from current trends and issues in U.S. copyright law. Specifically, the author argues that the current debate over copyright's …

The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin

Faculty Scholarship

No abstract provided.

Design Patents: An Alternative When The Low Standards Of Copyright Are Too High, Ryan Vacca

Faculty Publications

The standard for copyright protection is notoriously low - the work must be independently created by the author and possess a minimal degree of creativity. Nonetheless, even with that generous standard, the courts and the Copyright Office recognize that certain works do not contain even that minimum level of creativity such that they are categorically refused copyright protection. Blank forms, and other forms that do not convey information, fall within this category.

In contrast, and for good reason, the standard for design patent protection is much more burdensome. Design patents protect new, original, ornamental, and non-obvious designs. This more difficult …

Symposium: Commodification, Intellectual Property And The Quilters Of Gee's Bend, Victoria F. Phillips

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Symposium: Reconstructing The Author-Self: Some Feminist Lessons For Copyright Law, Carys J. Craig

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Mgm V. Grokster: Adopting Patent Law's Active Inducement Doctrine And Shifting The Focus To Actions Of Alleged Indirect Infringers, Kristine Grigorian

Journal of Business & Technology Law

No abstract provided.

Copyright Under Siege: An Economic Analysis Of The Essential Facilities Doctrine And The Compulsory Licensing Of Copyrighted Works, 17 Alb. L.J. Sci. & Tech. 481 (2007), Daryl Lim

UIC Law Open Access Faculty Scholarship

No abstract provided.

Dissonant Harmonization: Limitations On "Cash N' Carry" Creativity, 70 Alb. L. Rev. 1163 (2007), Doris E. Long

UIC Law Open Access Faculty Scholarship

Even though creativity lies at the heart of present copyright laws, the impulse to create-or more precisely what triggers such creativity-remains largely unexamined. Coinciding with the digital demand for access to information, new standards for "cash 'n' carry" creativity are being urged with little regard to what level of authorial3 control may be required to ensure continued enrichment of the public domain through the creation of vibrant new works. Scientific, psychological, and sociological studies indicate that "cash 'n' carry" creativity fails to implement the critical triggering mechanisms for the creative impulse. Moreover, such "cash 'n' carry" attitudes toward authors' rights …

Keep Your Eye On Your Ball: Patent Holders' Evolving Duty To Patrol The Marketplace For Infringement, Aaron B. Rabinowitz

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Choosing Between The Advice Of Counsel Defense To Willful Patent Infringement Or The Effective Assistance Of Trial Counsel: A Bridge Or The Troubled Waters, Christopher A. Harkins

Northwestern Journal of Technology and Intellectual Property

Trouble is brewing for patent infringement defendants who use lawyers from one law firm to act as trial counsel and other lawyers from the same or different firm (albeit perfectly screened off from the trial team) to prepare a non-infringement opinion as an advice of counsel defense to allegations of willful infringement. The 2006 Federal Circuit decision in EchoStar has set off a veritable feeding frenzy of attacks by patentees' counsel on the most sacred of attorney client communications and work product: that of trial counsel. In a case of first impression, one federal court has even granted a motion …

Extra-Judicial Decision Making For Drug Safety And Risk Management: Evidence From The Fda, Hazel Mcmullin, Andrew B. Whitford

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Overcoming The Achilles Heel Of Copyright Law, Haochen Sun

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Is Apple Playing Fair? Navigating The Ipod Fairplay Drm Controversy, Nicola F. Sharpe, Olufunmilayo B. Arewa

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Times May Have Changed, But The Song Is Still The Same: Why The Supreme Court Was Incorrect To Stray From Sony's Reasoning In Metro-Goldwyn-Mayer Studios, Inc. V. Grokster, Ltd., Julie A. Wooten

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

National Cable & Telecommunications Association V. Brand X Internet Services: Resolving Irregularities In Regulation?, Amy L. Signaigo

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The Emerging Bric Economies: Lessons From Intellectual Property Negotiation And Enforcement, Robert C. Bird, Daniel R. Cahoy

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Will India And China Profit From Technological Innovation?, David Orozco

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Global Intellectual Property Rights And Economic Growth, Linda Y. Yueh

Northwestern Journal of Technology and Intellectual Property

This article argues that the global intellectual property rights regime will affect the economic growth prospects of developing countries. The trade-related aspects of intellectual property rights (TRIPS) provisions under the WTO articles will eventually cover all of its member countries, currently at around 150 and representing 95% of world trade. It is a significant change in the global legal system with implications for economic growth. One of the key mechanisms generating convergence in global economic growth rates is the transfer of technology from developed to developing countries. According to the neoclassical models of growth, technology is embodied within the capital …

What Multinational Companies Need To Know About Patent Enforcement And Patent Litigation In China, J. Benjamin Bai, Peter J. Wang, Helen Cheng

Northwestern Journal of Technology and Intellectual Property

No abstract provided.