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Articles 271 - 300 of 474
Full-Text Articles in Intellectual Property Law
In Re Bilski: A Midpoint In The Evolution Of Business Methods, R. David Donoghue, Micael A. Grill
In Re Bilski: A Midpoint In The Evolution Of Business Methods, R. David Donoghue, Micael A. Grill
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Alternative Software Protection In View Of In Re Bilski, Lauren Katzenellenbogen, Charles Duan, James Skelley
Alternative Software Protection In View Of In Re Bilski, Lauren Katzenellenbogen, Charles Duan, James Skelley
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Scary Patents, Stephen Mcjohn
Scary Patents, Stephen Mcjohn
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Nobody Reads Your Privacy Policy Or Online Contract? Lessons Learned And Questions Raised By The Ftc's Action Against Sears, Susan E. Gindin
Nobody Reads Your Privacy Policy Or Online Contract? Lessons Learned And Questions Raised By The Ftc's Action Against Sears, Susan E. Gindin
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Innovation And Liability For Contributory Copyright Infringement, David Mcgowan
Innovation And Liability For Contributory Copyright Infringement, David Mcgowan
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
The Effect: Tougher Standards But Courts Return To The Prior Practice Of Granting Injunctions For Patent Infringement, Stacy Streur
The Effect: Tougher Standards But Courts Return To The Prior Practice Of Granting Injunctions For Patent Infringement, Stacy Streur
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
The Well-Pleaded Complaint Rule And Jurisdiction Over Patent Law Counterclaims: An Empirical Assessment Of Holmes Group And Proposals For Improvement, Jiwen Chen
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Egyptian Goddess V. Swisa: What Is The 'Point'?, A.C. Dike
Egyptian Goddess V. Swisa: What Is The 'Point'?, A.C. Dike
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
A Discussion On The Patentability Of Signals: Examining In Re Nuijten, Damien Howard
A Discussion On The Patentability Of Signals: Examining In Re Nuijten, Damien Howard
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach, Jerome H. Reichman
Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach, Jerome H. Reichman
Marquette Intellectual Property Law Review
Clinical trials are currently used to test drugs; however, the risk and cost of clinical trials are increasing so drastically that the clinical trials may become unsustainable. This article evaluates the legal and economic trends of intellectual property protection for pharmaceutical clinical trial data. The protection of clinical trials has become an alternative to patents as market exclusivity encourages the development and testing of unpatentable pharmaceuticals. This author argues that clinical trials should be treated as a national and international public good instead of a private good and proposes that the government should oversee and fund the clinical trials to …
The Public's Domain In Trademark Law: A First Amendment Theory Of The Consumer, Laura A. Heymann
The Public's Domain In Trademark Law: A First Amendment Theory Of The Consumer, Laura A. Heymann
Georgia Law Review
First Amendment theories of trademark law tend to focus on the need of speakers to employ trademarks in creating new speech-in parodies, comparative advertising, and other communicative endeavors. An alternative use of the First Amendment in trademark law, however, would focus on the rights of consumers to autonomy as they make choices about how to respond to trademark meaning. First Amendment doctrine in other areas of the law involving persuasive communications provides useful material on which to draw when constructing the autonomous consumer. With that consumer more fully realized, modern expansions of trademark law, such as dilution and initial interest …
Death From The Public Domain?, Kevin Outterson
Death From The Public Domain?, Kevin Outterson
Faculty Scholarship
In his recent article in the Texas Law Review, Ben Roin advances the claim that pharmaceutical innovation and the public’s health are harmed by the doctrines of non-obviousness and novelty. He does not mince words, labeling the nonobvious requirement as “perversity” with a “pernicious” effect on drug development. In his view, these standards pose an insurmountable barrier for drug companies seeking to commercialize inventions already in the public domain. He claims that valuable, life-saving drug ideas languish in the public domain because the companies face high barriers to entry from the FDA, but potential free riders are encouraged through the …
Trespass-Copyright Parallels And The Harm-Benefit Distinction, Wendy J. Gordon
Trespass-Copyright Parallels And The Harm-Benefit Distinction, Wendy J. Gordon
Faculty Scholarship
Currently, the elements of a plaintiff’s cause of action for copyright largely follow the tort of trespass to land in that volitional entry (for land) or volitional copying (for copyright) gives rise to liability regardless of proof of harm and without any need for the plaintiff to prove the defendant acted unreasonably. Many scholars have criticized copyright law for following the strict liability model of real property trespass, and have suggested alternatives that would more resemble conditional causes of action such as unfair competition, nuisance, or negligence. In Foreseeability and Copyright Incentives, Professor Shyamkrishna Balganesh argues that copyright plaintiffs …
Using Patents To Protect Traditional Knowledge, Jay Erstling
Using Patents To Protect Traditional Knowledge, Jay Erstling
Faculty Scholarship
The role that intellectual property can play in the protection of traditional knowledge (TK) has been on the international agenda for more than ten years, with little to show for it. For example, the World Intellectual Property Organization (WIPO) has provided a forum for international policy debate on the subject since 1998, and the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has held meetings on draft provisions for the protection of TK against misappropriation and misuse since 2001. Similarly, since 1999 the World Trade Organization (WTO) has been examining the most effective means …
An Alternate Approach To Channeling?, Mark P. Mckenna
An Alternate Approach To Channeling?, Mark P. Mckenna
Journal Articles
Intellectual property law has developed a variety of doctrines to police the boundaries between various forms of protection. Courts and scholars alike overwhelmingly conceive of these doctrines in terms of the nature of the objects of protection. The functionality doctrine in trademark law, for example, defines the boundary between trademark and patent law by identifying and refusing trademark protection to features that play a functional role in a product’s performance. Likewise, the useful article doctrine works at the boundary of copyright and patent law to identify elements of an article’s design that are dictated by function and to channel protection …
The Role Of The Office Of The Administrative Law Judges Within The United States International Trade Commission, 8 J. Marshall Rev. Intell. Prop. L. 216 (2009), Carl C. Charneski
The Role Of The Office Of The Administrative Law Judges Within The United States International Trade Commission, 8 J. Marshall Rev. Intell. Prop. L. 216 (2009), Carl C. Charneski
UIC Review of Intellectual Property Law
Section 337 of the Tariff Act of 1930 makes unlawful, specifically, the importation of products that infringe intellectual property rights. The U.S. International Trade Commission (“ITC”) is the forum in which all section 337 proceedings are adjudicated and, within the ITC, the Office of Administrative Law Judges handles all these proceedings. Section 337 cases can be exceedingly complex and technical, and the Administrative Law Judges (“ALJ”) are the initial triers of fact, administrators, and decision makers in every case. Thus, the amount of work that the ALJs—along with their staff—must meet to see these cases to completion can be substantial. …
The Distinctive Characteristics Of Section 337, 8 J. Marshall Rev. Intell. Prop. L. 231 (2009), Jay H. Reiziss
The Distinctive Characteristics Of Section 337, 8 J. Marshall Rev. Intell. Prop. L. 231 (2009), Jay H. Reiziss
UIC Review of Intellectual Property Law
In an investigation by the International Trade Commission (“ITC” or “Commission”) under Section 337 of the Tariff Act of 1930 (“Section 337”) a complainant must satisfy two unique statutory criteria. First, a complainant must establish that the ITC has jurisdiction, usually by showing importation of an accused product. Second, a complainant must demonstrate that a domestic industry exists or is in the process of being established. A practitioner can be assured that the ITC’s jurisdiction is expansive and reaches foreign-based activities that affect U.S. commerce. Such actions can involve any unfair act and can be brought regardless of whether personal …
Post-Litigation Enforcement Of Remedial Orders Issued By The U.S. International Trade Commission In Section 337 Investigations, 8 J. Marshall Rev. Intell. Prop. L. 248 (2009), Merritt R. Blakeslee
Post-Litigation Enforcement Of Remedial Orders Issued By The U.S. International Trade Commission In Section 337 Investigations, 8 J. Marshall Rev. Intell. Prop. L. 248 (2009), Merritt R. Blakeslee
UIC Review of Intellectual Property Law
There is a common misperception that enforcement of International Trade Commission (“ITC”) remedial orders is automatic and self implementing. In reality, such remedial orders are not self-implementing, are less-than-perfect enforcement tools, and their effective enforcement carries with it a number of practical difficulties. This paper explores the realities of enforcing the ITC’s remedial orders – exclusion orders, consent orders, and cease-and-desist orders – with the goal of giving both complainants and respondents a heightened appreciation of the tactics and strategies that can be effectively deployed following the conclusion of a Section 337 investigation and the issuance of one or more …
Gray Market Trademark Infringement Actions At The U.S. International Trade Commission: The Benefits Of The Forum And Analysis Of Relevant Cases, 8 J. Marshall Rev. Intell. Prop. L. 271 (2009), Joseph H. Heckendorn, Lyle B. Vander Schaaf
Gray Market Trademark Infringement Actions At The U.S. International Trade Commission: The Benefits Of The Forum And Analysis Of Relevant Cases, 8 J. Marshall Rev. Intell. Prop. L. 271 (2009), Joseph H. Heckendorn, Lyle B. Vander Schaaf
UIC Review of Intellectual Property Law
Trademark owners continue to enforce their trademarks against imports of gray market goods using Section 337 of the Tariff Act of 1930. In comparison to the federal court alternative, the International Trade Commission (“ITC”) offers a number of distinct advantages. In addition, ITC decisions in In re Certain Agricultural Vehicles and Components Thereof and In re Certain Hydraulic Excavators and Components Thereof have clarified what is required to enforce trademarks at the ITC. Trademark owners should heed the recent ITC decisions in deciding how to curb imports of infringing gray market goods.
The U.S. International Trade Commission's Growing Role In The Global Economy, 8 J. Marshall Rev. Intell. Prop. L. 290 (2009), Patricia Larios
The U.S. International Trade Commission's Growing Role In The Global Economy, 8 J. Marshall Rev. Intell. Prop. L. 290 (2009), Patricia Larios
UIC Review of Intellectual Property Law
The widespread offshoring of manufacturing operations has created dramatic efficiencies and meaningful cost savings for many U.S. businesses. But as an unintended consequence, the move to foreign manufacturing also has created challenges to the U.S. patent system and its ability to protect American businesses from infringing competition. U.S. District Courts are frequently an inadequate forum for litigating patent infringement suits involving an accused device manufactured abroad because of the difficulties associated with obtaining jurisdiction and proving infringement. Patent holders faced with such a situation, however, are not left without recourse. This article explores the different enforcement mechanisms available in the …
"Several Healthy Steps Away": New & Improved Products In Section 337 Investigations, 8 J. Marshall Rev. Intell. Prop. L. 309 (2009), Steven E. Adkins, John Evans
"Several Healthy Steps Away": New & Improved Products In Section 337 Investigations, 8 J. Marshall Rev. Intell. Prop. L. 309 (2009), Steven E. Adkins, John Evans
UIC Review of Intellectual Property Law
A business that imports “new and improved,” or redesigned, products into the United States should be aware of the procedures available to lessen the risk of violating standing orders of the United States International Trade Commission (“Commission”). In order to ensure that these products gain entry without violating an ITC order and accruing substantial penalties, it is imperative that the business know its options. Whether it requests a Customs ruling or uses a certification, or whether it petitions for an advisory opinion from the Commission, the business must be able to maneuver. This nuts-and-bolts guide provides examples and information on …
Patent Reform Should Not Leave Innovation Behind, 8 J. Marshall Rev. Intell. Prop. L. 328 (2009), Carl E. Gulbrandsen, Stephanie Adamany, Sandra Haberny, Jason Sheasby
Patent Reform Should Not Leave Innovation Behind, 8 J. Marshall Rev. Intell. Prop. L. 328 (2009), Carl E. Gulbrandsen, Stephanie Adamany, Sandra Haberny, Jason Sheasby
UIC Review of Intellectual Property Law
The most recent push for patent reform established competing groups supporting individual agendas. In view of current economic difficulties, however, the focus on innovation should be ever more important. By enacting the Bayh-Dole Act in 1980, the federal government invested in innovation and unlocked American industrial potential through Universities. The current reform has provisions that limit disclosure and facilitate patent challenging which increases costs to inventors and adds responsibilities to an already overloaded patent office. This article addresses a number of the proposed reforms and the effect on University innovation.
The New "Extra-Ordinary" Observer Test For Design Patent Infringement–On A Crash Course With The Supreme Court's Precedent In Gorham V. White, 8 J. Marshall Rev. Intell. Prop. L. 354 (2009), Christopher V. Carani
The New "Extra-Ordinary" Observer Test For Design Patent Infringement–On A Crash Course With The Supreme Court's Precedent In Gorham V. White, 8 J. Marshall Rev. Intell. Prop. L. 354 (2009), Christopher V. Carani
UIC Review of Intellectual Property Law
Over one hundred and thirty-five years ago the U.S. Supreme Court, in Gorham v. White, laid down the test for design patent infringement called the “ordinary observer” test—one that is administered through the eyes of men generally. It has remained the test ever since. Recently, in Arminak & Assoc., Inc. v. Saint-Gobain Calmar, Inc and Egyptian Goddess, Inc. v. Swisa, Inc., the Federal Circuit has improperly replaced this “ordinary observer” test with an “extra-ordinary observer” test—one that uses persons who are versed in the trade. In order to bring design patent jurisprudence in line with the U.S. Supreme Court’s jurisprudence …
Do As We Say, Not As We Do: A Study Of The Well-Known Marks Doctrine In The United States, 8 J. Marshall Rev. Intell. Prop. L. 412 (2009), Andrew M. Cook
Do As We Say, Not As We Do: A Study Of The Well-Known Marks Doctrine In The United States, 8 J. Marshall Rev. Intell. Prop. L. 412 (2009), Andrew M. Cook
UIC Review of Intellectual Property Law
Treaties such as the Paris Convention and the TRIPS Agreement protect well-known marks around the world, but there is currently uncertainty as to whether these marks can be protected in the United States. While a signatory to those treaties, recent decisions in the Second and Ninth Circuits leave the circuits split on whether foreign well-known marks are protectable within the United States. Without a circuit harmonization, the United States remains in a hypocritical position, demanding treaty compliance from other nations while failing to meet its treaty obligations. The uncertainty is efficiently and effectively resolved with a statutory amendment to section …
Obviousness Before And After Judge Markey, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 9 (2009), Mark J. Abate
Obviousness Before And After Judge Markey, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 9 (2009), Mark J. Abate
UIC Review of Intellectual Property Law
Chief Judge Howard T. Markey left an everlasting mark on the meaning of obviousness under 35 U.S.C. § 103. Chief Judge Markey viewed all inventions as combinations of old elements because, in his own words, “Only God works from nothing. Man must work with old elements.” Chief Judge Markey’s obviousness jurisprudence can be characterized by three fundamental principles. First, he looked at an invention as a whole. Second, he looked for real world evidence of nonobviousness because it was a reliable indicator of obviousness. Third, he avoided the dangers of hindsight bias by looking for a reason to combine a …
Inequitable Conduct, Gross Negligence And The Kingsdown Decision, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 18 (2009), Jim Carmichael, Cameron Weiffenbach
Inequitable Conduct, Gross Negligence And The Kingsdown Decision, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 18 (2009), Jim Carmichael, Cameron Weiffenbach
UIC Review of Intellectual Property Law
Rule 56 was promulgated in 1948 to address inequitable conduct and fraud before the United States Patent Office in response to major Supreme Court decisions in the 1930’s and 1940’s. Further development of rule continued through decisions and amendments into the 1980’s. Judge Markey authored several decisions at the Federal Circuit addressing the standard of intent required to find inequitable conduct in the 1980’s. The impact of these decisions culminated in his Kingsdown Medical Consultants, Ltd v. Hollister, Inc. opinion resulting in a 1992 amendment to Rule 56. This article analyzes the development of Rule 56 and Judge Markey’s influence …
The Role Of Juries In Managing Patent Enforcement: Judge Howard Markey's Opinions And Writings, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 41 (2009), John R. Alison
UIC Review of Intellectual Property Law
In the 1970s, a trial by jury was rare in patent cases. By the time Chief Judge Markey left the United States Court of Appeals for the Federal Circuit in 1989, jury trials had become the norm. Throughout Judge Markey’s time on the bench he exerted great energy to promote, define, and improve the role of law juries in patent cases. This speech by Judge Markey’s former law clerk, John R. Alison, discusses the three Markey Principles. The first principle of Judge Markey is the fundamental right to a jury trial in patent cases. Second, proceedings in jury trials for …
The Legacy Of Judge Howard T. Markey, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 1 (2009), Antonin Scalia
The Legacy Of Judge Howard T. Markey, 8 J. Marshall Rev. Intell. Prop. L. (Special Issue) 1 (2009), Antonin Scalia
UIC Review of Intellectual Property Law
On September 16, 2008, Associate Justice of the Supreme Court of the United States Antonin Scalia delivered a speech on the legacy of the late Howard T. Markey. The speech was given at The John Marshall Law School’s The Legacy of Judge Howard T. Markey Symposium, held at the law school in Chicago, Illinois. The text of the speech appears here.
Money For Nothing And Music For Free? Why The Riaa Should Continue To Sue Illegal File-Sharers, 9 J. Marshall Rev. Intell. Prop. L. 1 (2009), William Henslee
Money For Nothing And Music For Free? Why The Riaa Should Continue To Sue Illegal File-Sharers, 9 J. Marshall Rev. Intell. Prop. L. 1 (2009), William Henslee
UIC Review of Intellectual Property Law
The Recording Industry Association of America (―RIAA) has sued over 35,000 people for illegal file-sharing music, or uploading and downloading music. The RIAA has sued anyone under its ―making available‖ theory, or anyone who offers to distribute copyrighted music without the owner‘s consent. However, the United States Circuit Courts of Appeals are split on whether copyright infringement occurs when a file is ―made available‖ or when there is actual dissemination of a file. Due to this split, the RIAA has negotiated deals with internet service providers to penalize individuals who illegally share files. This article analyzes a recent decision, Capitol …