Intellectual Property Law Commons^™

How Much Is Too Much? Copyright Protection Of Short Portions Of Text In The United States And European Union After Infopaq International A/S V. Danske Dagblades, Connor Moran

Washington Journal of Law, Technology & Arts

The recent case Infopaq International A/S v. Danske Dagblades Forening decided by the Court of Justice for the European Union could influence businesses that summarize or aggregate content. Under this ruling, excerpts of copy-righted material unproblematic in the United States could invite liability if reproduced in European Union member states. In the United States, copying words or phrases only infringes a copyright where those words or phrases are particularly unique or core to the original work. By contrast, the European Union Information Society Directive provides an exclusive right to even partial reproductions. In the Infopaq case, the European Court of …

A Special Rule For Compound Protection For Dna-Sequences Impact Of The Ecj "Monsanto" Decision On Patent Practice, Jan B. Krauss, Toshiko Takenaka

Articles

This article will analyze the Monsanto decision, and criticize the European Court of Justice's interpretation of Article 9 as being incomplete, in particular for failing to take account of all articles and recitals in the Biotech Directive relating to the scope of protection. It will argue that applying the concept of a function-limited protection is unnecessary if a claim directed to an isolated DNA sequence is properly interpreted. It will also discuss the possible impact not only on the protection scope but also on the patentability of gene patents.

Cyberspace, Exceptionalism, And Innocent Copyright Infringement, Jacqueline D. Lipton

Vanderbilt Journal of Entertainment & Technology Law

Direct copyright infringement attracts strict liability. However, as a theoretical matter, it is not necessarily clear why. Legislatures and courts have typically imposed strict liability where: (a) a defendant has notice of a plaintiff's rights, particularly where those rights involve a property interest; (b) a mens rea requirement on the part of the defendant would create an untenable burden on the plaintiff; (c) it is easier for the defendant to avoid harming the plaintiff than it is for the plaintiff to avoid the harm; or, (d) it is more administratively or economically efficient for the defendant to bear the risk …

Copyright In Memoriam, Julie C. Young

Vanderbilt Journal of Entertainment & Technology Law

Can a government infringe upon a work dedicated to the memory of its people? The February 2010 Federal Circuit decision "Gaylord v. United States" addresses that question, but any satisfaction from the decision presupposes that the government should be held liable for such an infringement. Consistent with the 1976 Copyright Act, the Gaylord decision preserves the author's rights, paying no regard to the identity of the audience or the infringer. From a policy perspective, however, the result is dubious. Arguably, if a work is a public memorial, and paid for with public funds, it should immediately enter the public domain. …

Acta's State Of Play: Looking Beyond Transparency, Michael Geist

American University International Law Review

No abstract provided.

Acta - Risks Of Third-Party Enforcement For Access To Medinces, Brook K. Baker

American University International Law Review

No abstract provided.

Collateral Damage: The Impact Of Acta And The Enforcement Agenda On The World's Poorest People , Andrew Rens

American University International Law Review

No abstract provided.

Enforcing Intellectual Property Rights By Diminishing Privacy: How The Anti-Counterfeiting Trade Agreement Jeopardizes The Right To Privacy , Alberto J. Cerda Silva

American University International Law Review

No abstract provided.

A Trade Agreement Creating Barriers To International Trade?: Acta Border Measures And Goods In Transit , Henning Grosse Ruse - Khan

American University International Law Review

No abstract provided.

Acta As A New Kind Of International Ip Lawmaking, Kimberlee Weatherall

American University International Law Review

No abstract provided.

Gender And Invention: Mapping The Connections, Victoria Phillips

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Examining Exclusion In Woman-Inventor Patenting: A Comparison Of Educational Trends And Patent Data In The Era Of Computer Engineer Barbie, Annette I. Kahler

American University Journal of Gender, Social Policy & the Law

No abstract provided.

“Selling” Women: Lillian Gilbreth, Gender Translation, And Intellectual Property, Rayvon Fouché, Sharra Vostral

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Eligible Patent Matter—Gender Analysis Of Patent Law: International And Comparative Perspectives, Shlomit Yanisky-Ravid

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Do Patents Have Gender?, Dan L. Burk

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Race To The Cure: Why Gene Patents Pave The Way For Breast Cancer Research, Nicole Boutros

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Revisiting Reader Privacy In The Age Of The E-Book, 45 J. Marshall L. Rev. 175 (2011), Bradley Schaufenbuel

UIC Law Review

No abstract provided.

Uspto Issues Supplementary Examination Guidelines Explaining The Requirement For Clarity In Patent Claims, W. Keith Robinson, Rouget Henschel

Faculty Journal Articles and Book Chapters

The US Patent and Trademark Office (USPTO) recently published Supplementary Examination Guidelines on the requirement that proper patent claims must allow the public to clearly distinguish what infringes from what does not. The Guidelines focus to some degree on computer-implemented inventions. The Guidelines acknowledge that computer implemented inventions have “unique examination issues.” But the Guidelines are important to patent applicants in all fields, perhaps more so in newer technologies with developing terminology, or where the invention is otherwise difficult to put into words.

Current And Potential Methods To Undermine A Competitor’S U.S. Patent Application, W. Keith Robinson, M. Haq

Faculty Journal Articles and Book Chapters

The current PTO procedures provide a few choices for a third party to influence the prosecution of a competitors patent application prior to issuance. In the case of protests and public use hearings, the third party may submit documents and explain their relevancy, but must know of the application’s existence prior to publication in order to meet the timeliness requirement. In the case of third-party submissions, the third party has a short two-month window post-publication, but cannot explain the relevancy of the documents submitted. In each case, the time frame within which a third party can act is extremely limited. …

Copyrighting Shakespeare: Jacob Tonson, Eighteenth Century English Copyright, And The Birth Of Shakespeare Scholarship, Jeffrey M. Gaba

Faculty Journal Articles and Book Chapters

In 1709, Jacob Tonson, the premier publisher of his age, purchased the “copyright” to Shakespeare. Tonson and his family over the next fifty years went on to publish some of the most significant editions of the collected works of Shakespeare, edited by the likes of Nicholas Rowe, Alexander Pope and Samuel Johnson. In many ways, the Tonsons were responsible for the growth of Shakespeare’s popularity and the critical study of his work.

This article discusses the significance of copyright to the Tonsons’ publication decisions. It suggests that the Tonson copyright did not significantly “encourage” their contributions to Shakespeare scholarship. First, …

Threatening The Founding Ideal Of A Republic Of Letters: An Assessment Of The Supreme Court's Copyright Decisions Over The First Decade Of The Twenty-First Century, Susanna Frederick Fischer

Scholarly Articles

Disregard for the social value of a modern Republic of Letters like that so revered by Madison and Jefferson is a conspicuous hallmark of the Supreme Court's recent copyright case law. The four decisions in which the Court has issued full opinions since 2001 (New York Times Co. v. Tasini (2001), Eldred v. Ashcroft (2003), MGM Studios, Inc. v. Grokster, Ltd. (2005), and Reed Elsevier, Inc. v. Muchnick (2010) indicate that a majority of the Court does not share with Jefferson and Madison a belief in the civic importance of protecting widespread public access …

Clarifying The Doctrine Of Inequitable Conduct, Elizabeth I. Winston

Scholarly Articles

Addressing squarely the issue of the multiple standards of materiality in inequitable conduct litigation, Therasense v. Becton Dickinson raises many difficult issues that could be clarified through the lens of the analogous concept of fraud on the Trademark Office. The standards for finding fraud on the Trademark Office lack the ambiguity found in the doctrine of inequitable conduct, despite the parallel penalties of unenforceability and requirements of proof of materiality and intent. Informed by the many decisions of Judge Michel, this essay concludes that the standards for finding fraud before the Trademark Office, as set forth in In re Bose, …

Transparency Soup: The Acta Negotiating Process And "Black Box" Lawmaking , David S. Levine

American University International Law Review

No abstract provided.

The Liability Of Online Markets For Counterfeit Goods: A Comparative Analysis Of Secondary Trademark Infringement In The United States And Europe, Kurt M. Saunders, Gerlinde Berger-Walliser

Northwestern Journal of International Law & Business

Online trademark infringement and counterfeiting is a growing problem for luxury brands. In recent years, trademark owners have taken aim at the operators of online marketplaces and auction websites, asserting that these defendants are liable for contributory infringement due to sales of counterfeit goods on their sites. In addressing the scope of secondary liability for trademark infringement, the courts of the United States and European nations, including France, Germany, and the United Kingdom, have applied differing standards and reached inconsistent results. This article considers the question of secondary liability for trademark infringement from a comparative perspective and contrasts the rationales …

Toward A Regulatory Model Of Internet Intermediary Liability: File-Sharing And Copyright Enforcement, Christopher M. Swartout

Northwestern Journal of International Law & Business

One of the major problems presented by digital content and the internet has been the failure of traditional copyright enforcement mechanisms to adequately address infringement that takes place via online file-sharing. Recently, laws that would introduce a new copyright enforcement paradigm have been proposed in numerous countries and have received strong support from content industries seeking a more effective enforcement regime. These laws are often referred to as "graduated response" policies. Although there is some variation, graduated response laws typically impose requirements on Internet Service Providers (ISPs) to cooperate with rightsholders and government in policing illegal file-sharing. ISPs are required …

The Researcher Rat's Culture And Ease Of Access To The Publication Lever: Implications For The Patentability Of University Scientific Research, Joshua R. Nightingale

West Virginia Law Review

No abstract provided.

Adding Injury To Insult: Injurious Speech On The Internet And Its Implications For The First Amendment, Shelly Rosenfeld

UC Law SF Communications and Entertainment Journal

Cyberbullying became a major news story after a MySpace message took a deadly toll on a teenager. This paper examines how injurious speech case law in traditional print and broadcast media balances protecting victims who suffer emotional or physical harm while still preserving publisher's First Amendment rights. These cases provide a framework within which the injurious speech jurisprudence can be applied to emerging forms of communication, including the Internet.

By exploring the injurious speech cases from broadcast and print, this Note deals with the following issues: Can a public figure sue the press for intentionally inflicting emotional distress? What are …

Acta’S Constitutional Problem: The Treaty Is Not A Treaty, Sean Flynn

Joint PIJIP/TLS Research Paper Series

The planned entry of the U.S. into the Anti-Counterfeiting Trade Agreement (ACTA) poses a unique Constitutional problem. The problem is that the President lacks constitutional authority to bind the U.S. to the agreement without congressional consent; but that lack of authority may not prevent the U.S. from being bound to the agreement under international law. If the administration succeeds in its plan, ACTA may be a binding international treaty (under international law) that is not a treaty (under U.S. Constitutional law).

Resolving Conflicts Between Green Technology Transfer And Intellectual Property Law, Robert V. Percival, Alan Miller

Faculty Scholarship

This paper examines claims that intellectual property law, which is designed to create incentives for innovation, actually may inhibit the transfer to developing countries of green energy innovations.  Although the paper cannot find significant examples of green energy technologies whose diffusion has been hindered by existing intellectual property protections, it explores strategies, such as compulsory licensing schemes, for responding to such problems if and when they arise in the future.  The paper concludes that intellectual property law need not be an obstacle to a global transformation toward a green energy infrastructure that can promote economic development while advancing new levels …

"Do Androids Dream?": Personhood And Intelligent Artifacts, F. Patrick Hubbard

Faculty Publications

This Article proposes a test to be used in answering an important question that has never received detailed jurisprudential analysis: What happens if a human artifact like a large computer system requests that it be treated as a person rather than as property? The Article argues that this entity should be granted a legal right to personhood if it has the following capacities: (1) an ability to interact with its environment and to engage in complex thought and communication; (2) a sense of being a self with a concern for achieving its plan for its life; and (3) the ability …