Intellectual Property Law Commons^™

Navigating The Safe Harbor Rule: The Need For A Dmca Compass, Tiffany N. Beaty

Marquette Intellectual Property Law Review

The internet is a medium for more than just email and web browsing. Today, many internet users utilize the internet to access and share music, movies, and other types of media. Copyright law has attempted to keep up with the dynamic nature of the internet; however, this Comment posits it has only been marginally successful. The author examines whether the Safe Harbor Rule of the Digital Millennium Copyright Act (DCMA) is sufficient in balancing the need to protect copyright owners against the need for Internet Service Providers to be protected from third-party user suits. In doing so, the author concludes …

Emerging Scholars Series: Cross-Border Injunctions In U.S. Patent Cases And Their Enforcement Abroad, Marketa Trimble

Marquette Intellectual Property Law Review

Injunctions enforcing a patentee's right to exclude provide an incentive to invent; however, injunctions are only effective if they can be enforced. Enforcing an injunction becomes problematic when other jurisdictions are involved, yet plaintiffs request such injunctions despite the potential inherent difficulties of cross-border enforcement. The author empirically analyzes the number and types of cross-border injunctions issued in the United States against foreign entities by discussing methods of enforcing injunctions abroad and the difficulties inherent in those methods. Comparing cases of cross-border injunctions issued by European courts, the author reviews the controversial pan-European injunction that covers not only the territory …

Using Ethnographic Methods To Articulate Community-Based Conceptions Of Cultural Heritage Management, Julie Hollowell, George Nicholas

Aboriginal Policy Research Consortium International (APRCi)

How can ethnographic methods help communities articulate and enact their own conceptions of heritage management? This and related questions are being explored through an international research project, ‘Intellectual Property Issues in Cultural Heritage’. The project includes up to twenty community- based initiatives that incorporate community-based participatory research and ethnographic methods to explore emerging intellectual property-related issues in archaeological contexts; the means by which they are being addressed or resolved; and the broader implications of these issues and concerns. We discuss three examples that use ethnography to (a) articulate local or customary laws and principles of archaeological heritage management among a …

The Author As Agent Of Information Policy: The Relationship Between Economic And Moral Rights In Copyright, Margaret Ann Wilkinson, Natasha Gerolami

Law Publications

A historical and theoretical analysis of the copyright environment demonstrates that both the economic rights associated with copyright and the moral rights often associated with copyright perform social functions. The latter have not been as universally embraced or adopted as the former. The lack of enthusiasm for moral rights is argued to be because the social utility of this aspect of the copyright regime has gone largely unrecognised. In fact, moral rights ensure that the information needs of the public are being met because they enhance the ability to assess the authority and reliability of information. While historically this has …

Parental Rights In Myspace: Reconceptualizing The State's Parens Patriae Role In The Digital Age, Sheerin N. S. Haubenreich

UC Law SF Communications and Entertainment Journal

Generally, parents have a great deal of leeway in their childrearing decisions, including choices in the content of their children's internet use. But there is a harm about which many parents and state and federal governments are unaware: reputational harm. Children and teenagers' current internet use puts them at risk of permanently harming their reputations, and there are no protective measures in place, whether educational or regulatory. They are posting personal information on the internet at an alarming rate mostly via social networking sites like MySpace.com and Facebook.com without an awareness of the present and long-term consequences, such as the …

I'M A Highway Star: An Outline For A Federal Right Of Publicity, Sean D. Whaley

UC Law SF Communications and Entertainment Journal

The federal government has failed to codify a federal publicity right. This has caused numerous problems recently, as varying state laws unevenly restrain the commercial speech of many actors in interstate commerce. However, the nature of the publicity right as a property right and its essential function in interstate commerce calls for Congress to adopt a federal publicity right. Similar to the dual system of trademark protection, a federal publicity right will not preempt such rights at the state level. Rather, establishing such a right will detail proper justification and contours of the right. By establishing a federal right, the …

The Supreme Court As The Grand Mediator In Social Regulation Of The Media - De Gustibus Non Disputandum Est: Or Are They, Richard J. Hunter, Ann M. Mayo, Hector R. Lozada

UC Law SF Communications and Entertainment Journal

This article presents a study of administrative and statutory schemes designed to regulate various aspects of the media in considering broad questions of indecency, obscenity, and societal and parental controls over content in various forms of media broadcasting. The article then provides an important historical back-drop by referencing Burstyn v. Wilson (a 1950s case involving an alleged "secular sacrilege") and Pacifica Foundation (the George Carlin "Filthy Words" monologue case). It then turns to a discussion of the litigation and controversy spurred by passage of the Communications Decency Act of 1996 and the Child Online Protection Act of 1998 as the …

Regulating Search, Viva R. Moffat

Sturm College of Law: Faculty Scholarship

With the digital revolution and the internet age have come not just material and resources unimaginable fifty years ago, but also an overwhelming onslaught of information. Search engines have become the crucial intermediary in this online world, ameliorating the “information overload” and serving as the gatekeepers of the Internet. Academic commentators have recognized the significance of the issues posed by search engines’ role as a crucial intermediary, but the conversation about the appropriate structures for regulating search is still in its early stages. Thus far, the debate is a bipolar one: market regulation versus agency regulation.

In this paper, I …

United States Reexamination Procedures: Recent Trends, Strategies And Impact On Patent Practice, 8 J. Marshall Rev. Intell. Prop. L. 381 (2009), Greg H. Gardella, Emily A. Berger

UIC Review of Intellectual Property Law

Reexamination is playing a significant role in the patent landscape. The United States Patent and Trademark Office is reexamining and invalidating more patent claims than ever before. Potential infringers, aware of this trend, can benefit from reexamination proceedings initiated before, during, and after litigation. Moreover, a prevalent reexamination system benefits both the public and industry. Efficient reexamination enables parties to challenge overly broad patents at a reasonable cost which reduces transaction costs, promoting innovation. Patent holders have responded by crafting narrow claims which fair well before the patent office and in court. The current reexamination trend, if continued, will have …

Fender Bender: 3d Computer Modeling Of Commercial Objects And The Meshwerks V. Toyota Decision, 8 J. Marshall Rev. Intell. Prop. L. 429 (2009), Andrew C. Landsman

UIC Review of Intellectual Property Law

The Ninth Circuit Court of Appeals established a standard of originality for three-dimensional wireframe computer models for purposes of copyright protection in Meshwerks, Inc. v. Toyota Motor Sales USA, Inc. The court applied the standard of originality used by courts when assessing the originality of photographs. In doing so, the court created a test for wireframes that precludes any wireframe from acquiring copyright protection. This comment proposes that courts reconsider the holding in Meshwerks and treat wireframes as sculptures rather than photographs, which would allow wireframes to be copyrightable.

Proveris Scientific Corp. V. Innovasystems, Inc. Sinks Safe Harbor Protection For Research Tools, 8 J. Marshall Rev. Intell. Prop. L. 452 (2009), Erin M. Mckibben

UIC Review of Intellectual Property Law

The use of research tools is critical for pharmaceutical companies to conduct timely and efficient research in the development of new drugs. Traditionally, the use of all patented inventions during drug development that are reasonably related to submission of information to the Food and Drug Administration for regulatory review has been protected under the section 271(e)(1) safe harbor provision. Recently, the Federal Circuit narrowed the scope of the safe harbor provision excluding the use of certain patented research tools. The effect of this decision on research tools may negatively impact the public by raising the cost of pharmaceutical companies’ research …

Four Opinions By Chief Judge Markey On Limiting Patent Enforcement, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 34 (2009), Joseph R. Re

UIC Review of Intellectual Property Law

Many commentators have characterized Judge Markey and the United States Court of Appeals for the Federal Circuit as being biased in favor of patent holders. These four opinions exemplify Judge Markey’s support of a strong patent system, a system that must include strong defenses against parties that have either wrongly obtained or misused patent rights.

The Limits Of Expanding Patent Claim Scope To Provoke An Interference With A Competitor, Christopher L. Kuyper

Washington Journal of Law, Technology & Arts

Businesses that launch new products or services generally understand the risk of suits for patent infringement from competitors and other patent holders. Such risks are especially high when the first business (“challenger,”) holds no patents on the product or service. However, commercializers that do have patents or patent applications covering their new product or service may be less aware of another lurking risk: a competitor or other party (“challenger,”) owning a separate patent application. In such a scenario, a challenger may provoke a patent interference proceeding to challenge the date of invention for the commercializer’s patent or patent application. This …

Success Or Failure?: Japan's National Strategy On Intellectual Property And Evaluation Of Its Impact From The Comparative Law Perspective, Toshiko Takenaka

Articles

This short Article will discuss Japan's national IP strategy and changes brought to the IP system, focusing on features that follow the U.S. IP system. Additionally, it will review these changes from the comparative law perspective and evaluate whether the new system has accomplished its national strategy mission.

Hume's Penguin, Or, Yochai Benkler And The Nature Of Peer Production, Steven A. Hetcher

Vanderbilt Journal of Entertainment & Technology Law

This Article examines 'peer production," a term coined and a concept explicated by Yochai Benkler. My own interest in peer production stems from its importance as a new form of user-generated content. User-generated content is particularly interesting if Benkler is right in his claim that the positive analysis of peer-produced content may have normative implications with respect to copyright law--in particular, the implication that copyright law may play a deleterious role in the formation and maintenance of this potentially significant new form of user-generated content. We are in need of a theory of collective action for the social world that …

Increased Market Power As A New Secondary Consideration In Patent Law A Review Of Recent Decisions Of The United States Court Of Appeals For The Federal Circuit, Andrew Blair-Stanek

American University Law Review

Courts have developed several non-technical “secondary considerations” to help judges and juries in patent litigation decide whether a patent meets the crucial statutory requirement that a patent be non-obvious. This Article proposes a tenth secondary consideration to help judges and juries: increased market power. If a patent measurably increases its holders’ market power in the market into which it sells products or services, then that increase should weigh in favor of finding the patent non-obvious. Using increased market power incorporates the predictive benefits of several other secondary considerations, while often increasing the accuracy and availability of evidence. It would provide …

Clean Technology Transfer And Intellectual Property Rights, Nitya Nanda, Nidhi Srivastava

Sustainable Development Law & Policy

No abstract provided.

Intellectual Property Rights To Enhance International Clean Tech Transfers, Anastasia Lewandoski

Sustainable Development Law & Policy

No abstract provided.

Statement Of Best Practices In Fair Use Of Dance-Related Materials Recommendations For Librarians, Archivists, Curators, And Other Collections Staff., Peter Jaszi

Copyright, Fair Use & Open Access

This Statement of Best Practices in Fair Use clarifies what librarians, archivists, curators, and others working with dance-related materials currently regard as a reasonable application of the Copyright Act’s fair use doctrine, where the use of copyrighted materials is essential to significant cultural missions and institutional goals.

Reforming Intellectual Property Law: An Obvious And Not-So-Obvious Agenda, David Vaver

Articles & Book Chapters

No abstract provided.

Submission Of American Patent And Health Law Professors On Australian Senate Community Affairs Committee Inquiry Into Gene Patents, Joshua Sarnoff

Legislative Testimony & Comments

In response to the Australian Senate Community Affairs Committee’s Inquiry, the author and other American law professors submitted a brief to help the Senate Committee understand the current state of American law, and how the provision of patents on genetic technologies has and will continue to create serious problems for innovation, health care, and society at large.

The brief addresses the following subjects in regard to American law, which respond generally to the issues raised by the Committee’s inquiry. 1. The questionable need for patent rights in genetic sequences and other derivatives of naturally occurring materials, certain diagnostic discoveries, and …

Introduction: Intellectual Property In The Age Of The Internet, Susanna Frederick Fischer

Scholarly Articles

No abstract provided.

The Flawed Nature Of The False Marking Statute, Elizabeth I. Winston

Scholarly Articles

In 2005, the United States Court of Appeals for the Federal Circuit rendered a decision on an “issue of first impression” interpreting a one hundred sixty-three year old provision of the United States Code - the “false marking” statute embodied in 35 U.S.C. § 292. It is false marking to mark as patented an unpatented article if done with the intent to deceive the public and, as such, is a fineable offense. The false marking statute remains one of only a handful of qui tam actions left intact from a rich history of varied incentives provided by the government for …

Catholic Social Teaching, The Rule Of Law, And Copyright Protection, Susanna Frederick Fischer

Scholarly Articles

The rule of law is currently under grave threat in cyberspace. Even as copyright laws have been strengthened in many ways in response to new digital technologies, these laws are widely disrespected and cannot be effectively enforced against all those who willfully flout them. The legislative response has been to strengthen copyright laws more and more, including expanding copyrightable subject matter, giving copyright owners new rights, and lengthening the copyright term. One example is the Copyright Term Extension Act of 1998. This amendment to federal copyright law retroactively extended the duration of copyright protection by twenty years. The judicial response …

Indian Patent Law: Walking The Line, Johanna Sheehe

Northwestern Journal of International Law & Business

This comment proposes that cultural preferences have had a strong influence over the development of Indian patent law, and that these preferences influenced the court decision against Novartis. Part I will introduce TRIPS and international patent law, discuss the development of Indian patent law in the context of its colonial past and WTO membership, and explain the decisions by the Indian Patent Office and the Court of Madras in the context of Glivec's development. Part II will explore WTO attitudes and approaches to TRIPS and argue that if Switzerland were to bring India to the WTO's Dispute Settlement Board (DSB), …

Of Oceans, Islands, And Inland Water – How Much Room For Exceptions And Limitations Under The Three-Step Test?, Annette Kur

Richmond Journal of Global Law & Business

No abstract provided.

Comprehensive Strengthening Of Intellectual Property Adjudication Will Provide Powerful Judicial Guarantees For Constructing An Innovation-Based Country And Harmonious Society, Cao Jianming, Josef Rawert

Washington International Law Journal

Multinational corporations and other foreigners bringing foreign direct investment to China have been willing to operate at a loss and risk having their intellectual property rights (“IPR”) infringed without recourse to effective legal protection, because they see a pay-off in the long run. As market reforms deepen and China’s economy continues to develop, so too will the power of judicial protection of IPR strengthen, the argument goes. This long-term outlook expects acceptable levels of legal protections for IPR to emerge and that significant competitive advantage will be enjoyed by those firmly established in Chinese markets when that happens. But what …

Time To Pay The Dues Or Can Intellectual Property Rights Feel Safe With The Wto?, Darya Haag

Richmond Journal of Global Law & Business

No abstract provided.

In Re Seagate: Effects And Future Development Of Willful Patent Infringement, Christopher Ryan Lanks

West Virginia Law Review

No abstract provided.

Actual Interpretation Yields Actual Dissemination: An Analysis Of The Make Available Theory Argued In Peer-To-Peer File Sharing Lawsuits, And Why Courts Ought To Reject It, Shana Dines

UC Law SF Communications and Entertainment Journal

The Recording Industry Association of America has sued thousands of individuals for peer-to-peer file sharing in an attempt to save the failing music industry and resist new technology. The lawsuits rely on an interpretation of copyright law that making a work available to the public is an infringement of the distribution right. The recording industry has vigorously argued this "make available" theory because it is easy to prove, given the limited evidence obtainable in peer-to-peer file sharing cases. However, the district courts in various federal circuits are split on accepting this theory, some holding that actual dissemination is required to …