Intellectual Property Law Commons^™

Sandisk Corp. V. Stmicroelectronics, Inc., Patrick R. Colsher

NYLS Law Review

No abstract provided.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Bridget Murray

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its first issue of the 2008–2009 academic school year. Our authors assess a variety of controversial legal topics that embrace the intersection of technology and law.

Un Arco Iris De Lentes Con Los Que Mirar: La Protección Del Color Único Como Marca En Los Estados Unidos, En España, Y En La Unión Europea, Glenda Labadie-Jackson

Richmond Journal of Global Law & Business

Se vaticina que imicamente tendrdn una s6lida y duradera presencia en los complejos mercados contempordneos las marcas que se sirvan de estimulos multisensoriales con el objetivo de acaparar la atenci6n de los consumidores. En diversos ordenamientos juridicos, este ha sido el motor que ha propulsado la ampliaci6n del repertorio de signos o simbolos potencialmente elegibles para fungir como marcas de productos o servicios. De aqu6l1os, vale destacar los que tipicamente suelen agruparse bajo la riibrica de “no tradicionales”, a saber: los sonidos, los aromas, los sabores, las formas tridimensionales y los colores.

Selling It First, Stealing It Later: The Trouble With Trademarks In Corporate Transactions In Bankruptcy, Xuan-Thao Nguyen

Articles

Why does AI get two bites of the “Apple” trademark? Should AI be allowed to grant the right to use the trademark “perpetual and exclusive” with the sale of the music division and steal it back for free, ten years later? This article is part of an ongoing and broader inquiry into the intersection of trademark, contract and bankruptcy laws. This article argues that recent bankruptcy decisional law, notably the In re Exide Technologies decision, misunderstands the “perpetual and exclusive” trademark transaction, deeming it as an ordinary “license” when it is truly an outright sale. This article explains that the …

Acquiring Innovation, Xuan-Thao Nguyen, Jeffrey A. Maine

Articles

In recent years, the innovation market has witnessed a new business model involving companies that are mere patent holding shells and not operating entities. They have no customers or products to offer, but they do have an aggressive tactic of using patent portfolios to threaten other operating companies with potential infringement litigation. The strategy is executed with the end goal of extracting handsome settlements. Acquisitions of patents for offensive use have become a major concern to operating companies because such acquisitions pose the threats of patent injunction, interrupting the business and crippling further innovation.

While many operating companies today know …

Book Review. From Edison To Ipod: Protect Your Ideas And Make Money By Frederick W. Mostert And Lawrence E. Apolzon, Yvonne Cripps

Articles by Maurer Faculty

No abstract provided.

Rethinking Sharing Licenses For The Entertainment Media, Eric E. Johnson

Faculty Articles

No abstract provided.

Sight, Sound And Meaning: Teaching Intellectual Property With Audiovisual Materials, Rebecca Tushnet

Georgetown Law Faculty Publications and Other Works

This article addresses the author's experience using audiovisual materials from the Georgetown Intellectual Property Teaching Resources database. She used audiovisual materials extensively in class to allow students to see the subject matter of the cases rather than just reading verbal descriptions and enable them to apply the principles they read about to new, concrete examples. Many students in IP courses have special interests in music, film, or the visual arts, and the database allows her--and other teachers--to present materials that engage them. She found that students are more willing to speak up in class when they can see or hear …

Rationalising The Regime Of Compulsory Patent Licensing By The Essential Facilities Doctrine, Kung-Chung Liu

Research Collection Yong Pung How School Of Law

Where intellectual property rights (IP) owned by dominant undertakings are indispensable and impossible for other market players to replicate or acquire, the refusal to grant license to use such IP may cause serious harm to vital public interests, such as the supply of life-saving drugs, of technology that protects the environment, the compliance with de jure or de facto industry standards and the preservation of competition in markets with network effects or strong need for compatibility and interoperability

The Specter Of Copyism V. Blockheaded Authors: How User-Generated Content Affects Copyright Policy, Tom W. Bell

Vanderbilt Journal of Entertainment & Technology Law

Technological advances, because they have radically lowered the costs of creating and distributing expressive works, have shaken the foundations of copyright policy. Once, those who held copyrights in sound recordings, movies, television shows, magazines, and the like could safely assume that the public would do little more than passively consume. Now, though, the masses have seized (peacefully acquired, really) the means of reproducing copyrighted works, making infringement cheap, easy, and, notwithstanding the law's dictates, widespread. Copyright holders thus understandably fear that their customers have begun to treat expressive works like common property, free for all to use. That, the specter …

Pharma's Nonobvious Problem, Rebecca S. Eisenberg

Articles

This Article considers the effect of the recent decision of the U.S. Supreme Court in KSR International Co. v. Teleflex, Inc. on the nonobviousness standard for patentability as applied to pharmaceutical patents. By calling for an expansive and flexible analysis and disapproving of the use of rigid formulas in evaluating an invention for obviousness, KSR may appear to make it easier for generic competitors to challenge the validity of drug patents. But an examination of the Federal Circuit's nonobviousness jurisprudence in the context of such challenges reveals that the Federal Circuit has been employing all along the sort of flexible …

Billowing White Goo, Jessica D. Litman

Articles

The title of this symposium is the question: "Fair Use: "Incredibly Shrinking" or Extraordinarily Expanding?" I'd argue that the answer to the question is "no." Fair use isn't doing either. The size of the fair use footprint has stayed remarkably constant over the past 30 or even 50 years. What has expanded, extraordinarily, is the size of rights granted by the copyright law. It may seem as if fair use is either expanding or shrinking, because the greater reach of copyright has made a bunch of uses potentially fair that weren't even potentially infringing 50 years ago. In order to …

Illegal P2p File Sharing On College Campuses--What's The Solution?, Antionette D. Bishop

Vanderbilt Journal of Entertainment & Technology Law

Since the introduction of Napster in 1999, illegal peer-to-peer(P2P) file sharing has been a continuously growing problem for the music industry. According to the music industry, Internet users are allowed to copy and distribute millions of songs and other copyright-protected material illegally by using internet networks and P2P file-sharing software. To stop the illegal P2P file sharing, the music industry has taken action against the individuals who participate in illegal file sharing, as well as the parties that promote and facilitate the illegal activity, by filing numerous lawsuits. The music industry has successfully sought to hold facilitating parties, such as …

Wringing Songwriters Dry: Negative Consequences Of Compulsory Licensing For Ringtones, Daniel H. Mark

Vanderbilt Journal of Entertainment & Technology Law

On October 16, 2006, the United States Copyright Office concluded in a Memorandum Opinion (the Ringtone Opinion) that, subject to certain caveats, the Copyright Act's § 115 statutory license applies to ringtones. The Copyright Office concluded that ringtones (including monophonic and polyphonic ringtones, as well as mastertones) are phonorecords, and deliveries of ringtones by wire or wireless transmission constitute digital phonorecord deliveries subject to compulsory licensing under § 115.2

In the Ringtone Opinion, the Copyright Office provided a testto determine whether a particular ringtone will qualify for thestatutory compulsory license under § 115. The opinion noted that...

"whether a particular …

A Healthy Solution For Patients And Patents: How India's Legal Victory Against A Pharmaceutical Giant Reconciles Human Rights With Intellectual Property Rights, Sara B. Myers

Vanderbilt Journal of Entertainment & Technology Law

The Swiss drug company Novartis challenged India's status as the "Pharmacy of the Developing World" when it initiated a lawsuit against the Indian government on February 15, 2007. In 2005, India updated its Patents Act to comply with the World Trade Organization's (WTO) intellectual property requirements. Before 2005, India only granted patents to processes, not products, which facilitated the development of the country's booming generic drug industry. On January 25, 2006, India's Office of the Controller General of Patents, Designs and Trademarks denied Novartis's patent application for its cancer-fighting drug Glivec on the grounds that it was not substantially different …

The Making Of The Post-War Paradigm In American Intellectual Property Law, Steven Wilf

Faculty Articles and Papers

During the New Deal period, intellectual property underwent a transformation. Copyright was recast from literary property to industrial property; trademark shifted from a common law tort of palming off to a regulatory regime for a mass consumer economy, and patent law was rethought to accommodate corporate invention. This essay begins by examining the advantages of looking at intellectual property as deeply situated in New Deal debates over political economy, and calls for a new history of intellectual property very different from conventional narratives moored in the introduction of new technologies. More broadly, it suggests that examining foundational past policy debates, …

Separating The Sony Sheep From The Grokster Goats: Reckoning The Future Business Plans Of Copyright-Dependent Technology Entrepeneurs, Jane C. Ginsburg

Faculty Scholarship

In MGM v. Grokster, the U.S. Supreme Court established that businesses built from the start on inducing copyright infringement will be held liable, as judges will frown on drawing one's start-up capital from other people's copyrights. The Court's elucidation of the elements of inducement suggests that even businesses not initially built on infringement, but in which infringement comes to play an increasingly profitable part, may find themselves liable unless they take good faith measures to forestall infringements. This Article addresses the evolution of the U.S. judge-made rules of secondary liability for copyright infringement, and the possible emergence of an obligation …

Tolerated Use, Tim Wu

Faculty Scholarship

"Tolerated use" is a term that refers to the contemporary spread of technically infringing, but nonetheless tolerated, use of copyrighted works. Such patterns of mass infringement have occurred before in copyright history, though perhaps not on the same scale, and have usually been settled with the use of special laws, called compulsory licensing regimes, more familiar to non-copyright scholars as liability rules. This paper suggests that, in present times, a different and slightly unusual solution to the issue of widespread illegal use is emerging-an "opt-in" system for copyright holders, that is in property terms a rare species of ex post …

Recent Developments In Us Copyright Law: Part I – "Orphan" Works, Jane C. Ginsburg

Faculty Scholarship

This Comment, after a brief review of the nature of the orphan works problem and prior attempts to resolve it in the US, will analyze the current bills' provisions, both with respect to the limitation of remedies that constitutes the proposals' centerpiece, and to the conditions required to qualify for the limitation. I will also compare the US proposals with current European initiatives, and will assess the compatibility of the US proposals with international treaty norms, as well as the cross-border consequences of inconsistent US and EU orphan works regimes. I will conclude with some suggestions for amending the US …

Justice Scalia’S “Renegade Jurisdiction”: Lessons For Patent Law Reform, Xuan-Thao Nguyen

Articles

Justice Scalia called the Eastern District of Texas ("EDTX") the "renegade jurisdiction." Critics label it the "rocket-docket" for patents. All blame it on the ills of patent litigation, demanding for national reform. This Article challenges the prevailing myths with an empirical quantitative study of more than 27,000 patent cases filed in the last decade and a qualitative study on patent forum shopping. This Article contends that the proposed venue reforms will not prevent litigants from shopping for a favorable forum in which to resolve patent litigations. This Article suggests that instead of the quick fixes vis-à-vis proposed venue reform legislation …

The Other Famous Marks Doctrine, Xuan-Thao Nguyen

Articles

Debates on protection for famous trademarks often center around state and federal antidilution laws. Both the old Federal Trademark Dilution Act of 1995 and the new Trademark Dilution Revision Act of 2006 have generated many law review articles and numerous symposia. The dilution law focuses on trademarks deemed famous within U.S. boundaries. A debate on protection for famous trademarks today is incomplete without a discussion of the other famous marks doctrine. The other famous marks doctrine recognizes marks famous in other countries without actual use in the country where a user adopts the trademark on similar goods and services.

In …

J.J. Morrison And His Right Of Publicity Lawsuit Against The Ncaa, Sean Hanlon, Ray Yasser

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Advertising And The Transformation Of Trademark Law, Mark Bartholomew

Journal Articles

Despite the presence of a vigorous debate over the proper scope of trademark protection, scholars have largely ignored study of trademark law's origins. It would be a mistake, however, to ignore the history behind trademark law. Scrutiny of the formative era in American trademark law yields two important conclusions. First, courts granted robust legal protection to trademark holders in the early twentieth century because they accepted the benign view of advertising presented to them by advertisers. As advertising became linked to cultural progress and social cohesion, courts adopted doctrinal revisions to protect advertising's value that remain embedded in modern trademark …

Rights And Remedies Post Ebay V. Mercexchange - Deep Waters Stirred, Robert I. Reis

Journal Articles

No abstract provided.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Yuka Ito

Richmond Journal of Law & Technology

On behalf of the Richmond Journal of Law and Technology, it is my pleasure to welcome you to our third issue for the 2007-2008 year, our Annual Survey of Electronic Discovery. This year’s Survey concentrates on the recent Amendments to the Federal Rules of Civil Procedure and its various implications on Electronic Discovery.

Emerging Biotechnologies Demand Defeat Of Proposed Legislation That Attempts To Ban Gene Patents, Gregory C. Ellis

Richmond Journal of Law & Technology

In October 2006, Andrew Fire and Craig Mello won the Nobel Prize in Physiology or Medicine for discovering a process known as RNA interference in the soil nematode Caenorhaditis elegans. More commonly known as RNAi, this process has great therapeutic significance for humans because of its ability to specifically and efficiently regulate gene expression. The capacity to easily regulate gene expression will tremendously impact our ability to combat a wide variety of disorders ranging from cancer to infectious diseases. While the mechanism of RNAi was first published within the last decade, three RNAi-based human therapies are already in clinical trails.

Help! My Intellectual Property Is Trapped: Second Life, Conflicting Ownership Claims And The Problem Of Access, Megan B. Caramore

Richmond Journal of Law & Technology

The controversy over ownership of virtual “real” property and intellectual property rights within online games has existed for nearly as long as the technology to create such games. Previously, the owners of virtual worlds possessed sole control over everything within the world as a result of rather strict terms contained in their user licensing agreements. Lately, this controversy has acquired a new dimension in a rapidly expanding game called Second Life. Second Life is different from most online games because it expressly guarantees its users the rights to content they create within the game. To the extent that Second Life …

Users As Innovators: Implications For Patent Doctrine, Katherine J. Strandburg

University of Colorado Law Review

User innovators range from commercial firms, which invent new production methods in expectation of competitive advantage, to individual hobbyists motivated entirely by their enjoyment of the inventive process. In this Article, I consider the implications for patent doctrine of the fact that many user innovators derive sufficient benefit simply from developing and using their inventions to motivate them to invest the effort necessary to invent them. Moreover, user innovators often benefit from "freely revealing" their innovations to others. Trade secrecy and patenting are not central to motivating this inventive activity. This picture of user innovation contrasts sharply with the seller …

The "Public Health" Of The Conventional International Patent Régime And The Ethics Of "Ethicals:" Access To Patented Medicines, Amir H. Khoury

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Rethinking Sharing Licenses For The Entertainment Media, Eric E. Johnson

Cardozo Arts & Entertainment Law Journal

No abstract provided.