Intellectual Property Law Commons^™

International Arbitration Of Patent Disputes, 10 J. Marshall Rev. Intell. Prop. L. 384 (2011), Wei-Hua Wu

UIC Review of Intellectual Property Law

This paper discusses the concept of using international arbitration as a method of resolving patent disputes. First, this paper examines the arbitrability of patent validity disputes from a public policy viewpoint. The question is whether, or to what extent, the subject matter of patent validity disputes may be settled by international commercial arbitration. Second, this paper provides suggestions on strategies for organizational decision-makers to consider whether it is proper to choose arbitration as a more favorable tool when confronted with a patent dispute. Finally, this paper discusses how to choose the seat of arbitral institution and the applicable law.

Acceptable Fraud? How Falsities And Misstatements Can Escape The Scope Of The New Fraud Standard, 10 J. Marshall Rev. Intell. Prop. L. 410 (2011), Jacobi M. Fields

UIC Review of Intellectual Property Law

Accuracy is crucial to the trademark registration process. Registrants are required to submit truthful applications to the United States Patent and Trademark Office (“PTO”) or face fraud liability. Pursuant to the Lanham Act, fraud liability is initiated by the submission of “false or fraudulent” statements in a trademark application. This language presents a critical problem for registrants because the terms false and fraudulent are not synonymous, and it is unclear what actually triggers fraud liability. As a result, the requirements for fraud liability and the corresponding standards for fraud have been in fluctuation over the past ten years. In 2009, …

Patent Office As Biosecurity Gatekeeper: Fostering Responsible Science And Building Public Trust In Diy Science, 10 J. Marshall Rev. Intell. Prop. L. 423 (2011), Brian J. Gorman

UIC Review of Intellectual Property Law

When the fields of intellectual property law and biotechnology intersect, most analysis is driven byeconomic and ethical issues. This article examines these factors, but in relation to the emerging security threat posed by biohackers, or do-it-yourself (“DIY”) scientists, who operate free from oversight and industry norms at the fringes of the biotechnology community. Public health risks are poised to grow as these citizen-scientists race for lucrative discoveries in the new frontier of syntheticbiology. This article proposes that the existing paradigm adjust accordingly to leverage regulatory compliance from the most ambitious biohackers looking to benefit from patent protection. The U.S. government …

Do You Mind My Smoking? Plain Packaging Of Cigarettes Under The Trips Agreement, 10 J. Marshall Rev. Intell. Prop. L. 450 (2011), Alberto Alemanno, Enrico Bonadio

UIC Review of Intellectual Property Law

Plain packaging, a new tobacco control tool that a growing number of countries are considering, mandates the removal of all attractive and promotional aspects of tobacco product packages. As a result of plain packaging, the only authorized feature remaining on a tobacco package is the use of the brand name, displayed in a standard font, size, colour and location on the package. In opposing this new strategy, the tobacco industry is particularly keen on emphasizing the uselessness of plain packaging in reducing smoking rates and its incompatibility with trade mark provisions of international treaties. In particular, the tobacco industry and …

The Application Of Data Access Policies Designed For Genome-Wide Association Studies To Smaller Scale Databases, 10 J. Marshall Rev. Intell. Prop. L. 476 (2011), Donna M. Gitter

UIC Review of Intellectual Property Law

Scientific progress thrives with open discussion of new ideas and supporting data. To this end, researchers traditionally publish their results in scientific papers—papers that contain the new ideas and the underlying data supporting those ideas. With the advent of large-scale and high-throughput data analysis, however, the creation of scientific databases have replaced the traditional model. For such publically-funded, data-intensive projects, funding agencies typically require that all relevant data be made available on a publicly accessible website at the time of the paper’s publication. Against the backdrop of the public accessibility model used in the 1000 Genomes Project, the author recommends …

Interpreting Myriad: Acquiring Patent Law's Meaning Through Contemporary Jurisprudence And Humanistic Viewpoint Of Common Heritage Of Dna, 10 J. Marshall Rev. Intell. Prop. L. 508 (2011), Saby Ghoshray

UIC Review of Intellectual Property Law

Until Judge Sweet’s decision in Association for Molecular Pathology v. U.S. Patent & Trademark Office (Myriad), gene patentability in the United States has evaded prohibition for more than three decades since Diamond v. Chakrabarty. The Myriad decision has captured the imagination of the legal community—but not in isolation. This article examines Myriad through the lens of two contemporary European decisions related to gene patenting, Eli Lilly & Co. v Human Genome Sciences, Inc and Monsanto Technology LLC v. Cefetra BV, suggesting that Myriad is a narrative that evolves at the intersection of law’s aspiration, humanity’s common heritage, and corporate realities …

Biotech Patent Infringement In Europe: The "Functionality" Gatekeeper, 10 J. Marshall Rev. Intell. Prop. L. 540 (2011), Vid Mohan-Ram, Richard Peet, Philippe Vlaemminck

UIC Review of Intellectual Property Law

The Court of Justice of the European Union recently concluded in Monsanto Technology LLC v. Cefetra BV that a patent with claims drawn to isolated DNA, or transgenic products containing that sequence, cannot be infringed if the DNA is not functional at the time of the alleged infringement.This paper discusses how the Cefetra judgment may unintentionally inflict serious economic harm on the European biotechnology industry because countless biotechnology products may no longer be protected by what are otherwise valid and enforceable patent claims. After Cefetra, an accused infringer may deny infringement by simply asserting that the patented sequence does not …

Trademark Protection Of Live Animals: The Bleat Goes On, 10 J. Marshall Rev. Intell. Prop. L. 715 (2011), Lee B. Burgunder

UIC Review of Intellectual Property Law

The Wall Street Journal recently reported that the owner of a Swedish restaurant was suing other businesses for violating its registered trademark, which surprisingly consists of live goats on a grass roof. The PTO and the courts have steadily enlarged the set of trade dress features that might serve as trademarks, and there is no reason, in theory, to treat live animals differently. Nevertheless, the PTO likely made a mistake in this instance when it agreed to register the mark. This article evaluates the requirements for protecting trade dress with trademarks, and explains why a Swedish restaurant should not have …

Recognition And Presentation Of A “New Result” To Reach A Safe Harbor, 10 J. Marshall Rev. Intell. Prop. L. 583 (2011), Hal Milton

UIC Review of Intellectual Property Law

A safe harbor where a patent has the best chance of survival in a litigation storm is only established by dividing the preparation of a patent application into two separate categories: the recognition of the new result and the presentation of the new result throughout the patent application. The two famous cases of Great Atlantic and Pacific Tea Co. v. Supermarket Equipment Corp. and Graham v. John Deere Co. illustrate how the implementation of recognition and presentation might have prevented litigation or saved the patents.

Notice That Registered Trademark In The Window?, 10 J. Marshall Rev. Intell. Prop. L. 736 (2011), James Juo

UIC Review of Intellectual Property Law

The letter R enclosed in a circle (i.e., the “®” symbol) is a well-known form of statutory notice for a trademark registered with the United States Patent and Trademark Office. This helps ensure that the public will identify a mark as a source identifier rather than as a generic term for a product or service. Although not mandatory, failure to display the registration symbol or another form of statutory notice with a registered trademark may limit the monetary remedies recoverable in a lawsuit for infringement of that registered mark under the Lanham Act. Absent statutory notice, damages for infringements and …

University Initiation Of Patent Infringement Litigation, 10 J. Marshall Rev. Intell. Prop. L. 623 (2011), Jacob H. Rooksby

UIC Review of Intellectual Property Law

While the literature examining university engagement in patenting and technology transfer is quite developed, commentators largely have overlooked university involvement in patent litigation. This article focuses on one aspect of that involvement—initiation of patent infringement litigation—by providing a quantitative and textual analysis of patent infringement actions initiated by universities from 2009 through 2010. Suing for-profit actors for money may seem antithetical to the mission of not-for-profit universities, but in fact universities filed over fifty such cases in the studied time period. Examination of these cases reveals a remarkable similarity between the litigation behavior of universities and for-profit actors, as well …

You Don’T Own Me: Why Work For Hire Should Not Be Applied To Sound Recordings, 10 J. Marshall Rev. Intell. Prop. L. 695 (2011), William Henslee, Elizabeth Henslee

UIC Review of Intellectual Property Law

Many recording artists and songwriters never reap the rewards of their work. America’s first professional songwriter died in poverty at the age of thirty-seven. At the Congressional level the situation has described recording artists as “one group of creators who get ripped off more than anybody else in any other industry”. As we approach 2013, there will be a new line of cases that deal with authors of sound recordings attempting to terminate their copyright assignment to the record companies. While the most efficient and frugal solution would be legislative action, the most probable outcome is expensive, fact-intensive litigation. Congress …

The Utilitarian Fruits Approach To Justifying Patentable Subject Matter, 10 J. Marshall Rev. Intell. Prop. L. 753 (2011), Emir Aly Crowne

UIC Review of Intellectual Property Law

This article proposes an approach to justifying patentable subject matter that uses Locke as its starting point, and utilitarianism as its end. The patent eligibility of any given subject matter must be a mixture of labour and certain utilitarian incentives. If these elements are present—and if the subject matter in question can be made to fit within the definition of invention (even if slightly uncomfortably)—then courts and tribunals should aim to accommodate it.

Twitter's Trademark Problems: Is The Anticybersquatting Consumer Protection Act Outdated?, 10 J. Marshall Rev. Intell. Prop. L. 764 (2011), Cole C. Hardy

UIC Review of Intellectual Property Law

Under the Lanham Act there is no remedy for individuals when imposters register user names with corresponding post-domain paths containing protected trademarks on social network websites. While Twitter temporarily experimented with its own verification process, it currently does not help users of its site distinguish trademark owners’ pages from the imposters’ pages. Current law discouraging such activity only applies to domain names. This article proposes that with a minor change to the ACPA, the Lanham Act could be updated to help trademark owners protect their rights when infringing activity is experienced with social networking handles and the corresponding post-domain paths.

The Federal Circuit's Decision In Myriad: Isolated Dna Molecules Are Patentable Subject Matter, Seth R. Ogden

American University Law Review

No abstract provided.

Geographical Indications: The International Debate Over Intellectual Property Rights For Local Producers, Emily Nation

University of Colorado Law Review

Geographical indications are a type of intellectual property right. GIs exist where a product is named after its geographical origin and where the product has certain qualities attributable to its geography. Examples of GIs include Parmigiano- Reggiano cheese, Champagne, and Florida oranges. Governmental regulation of GIs protects producers' hardearned reputations from free-riding and reassures consumers that a product's origin is accurately represented. This Comment will explain how GIs are currently protected under international law as well as under domestic laws in the United States and the European Union. It will also discuss the international debate over the proper level of …

Playing Telephone: The Federal Circuit Misinterprets Precedent By Ignoring Context In Sky Technologies, Llc V. Sap Ag, Christopher M. Crouch

Oklahoma Law Review

No abstract provided.

Discovery In The Paperless World: How Speed And Ease Of Technology Has Slowed And Complicated The Process, John Prudhomme

SMU Science and Technology Law Review

No abstract provided.

Keynote Panel: What In The Heck Is Going On, Richard Hilleman, Evan Hirsch, Joseph Olin, Randy Pitchford

SMU Science and Technology Law Review

No abstract provided.

Privacy: Problems And Solutions, Jennifer Archie, Andrew S. Ehmke, Joshua Fairfield, Berin Szoka

SMU Science and Technology Law Review

No abstract provided.

The Effect Of Court Rulings On Business Development, Christopher Ferguson, Holt Foster, Sean F. Kane, Shane Mcgee

SMU Science and Technology Law Review

No abstract provided.

Digital Distribution: Is It Really Finally Here, Robert Brown, Shawn Freeman, Michael Klotz, Steve Nix, Tom Paquin

SMU Science and Technology Law Review

No abstract provided.

Jagex Ltd. V. Impulse Software: An Almost Big Win For Online-Gaming Software Developers, Holly Guest

SMU Science and Technology Law Review

No abstract provided.

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Francis C. Oroszlan

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its second issue of the 2010–2011 academic year.

Spilling Secrets: Trade Secret Disclosure And Takings In Offshore Drilling Regulation, Michael A. Greene

Richmond Journal of Law & Technology

This Article will explore whether the law may require the disclosure of adequate proprietary information to enable effective regulation. Part II will discuss the settled law regarding the property status of trade secrets, the regulatory takings doctrine, the applicability of the Takings Clause of the United States Constitution to proprietary data, and the exactions doctrine. Part III will explore the validity of the mandatory submission of proprietary health, safety, and environmental data to government regulators, with the guarantee that such data will be kept secret from competitors and the public. Part IV will then explore the validity of regulation mandating …

Introduction: Contains Cover, Table Of Contents, Letter From The Editor, And Masthead, Ian Lambeets

Richmond Journal of Law & Technology

The Richmond Journal of Law and Technology is proud to present its first issue of the 2011-2012 academic year. The Journal strives to discuss new and emerging issues that fall squarely at the intersection of technology and the law. Another year goes by and technology continues to advance, and not surprisingly, further immerses itself into our daily lives. The Journal believes it is our mission to recognize the practical effects the growth of technology has on society and to promote a relevant and timely discussion on these topics.

Creative Commons: America's Moral Rights?, Mira T. Sundara Rajan

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article examines the status of authors' moral rights in a post-Dastar world. It argues that, apart from the minimal recognition of moral rights for visual artists in the Visual Artists Rights Act (1990) and a handful of state laws, Creative Commons and other open access movements currently represent the only effective recognition of moral rights in the United States. This paper examines approaches to moral rights in a variety of open-access scenarios, including Creative Commons, free software, Wikipedia, and Google Books, and it attempts to assess the advantages and dangers of offering moral rights as an alternative to regular …

Revisiting The Doctrine Of Inequitable Conduct Before The Patent And Trademark Office, Christian Mammen

Fordham Intellectual Property, Media and Entertainment Law Journal

I would like to thank the editors of Fordham's Intellectual Property, Media & Entertainment Law Journal for including the very important subject of inequitable conduct reform in this Symposium. And I'd particularly like to commend them for their impeccable timing; this Symposium is being held on the Friday before oral arguments in the Federal Circuit's en banc rehearing of the inequitable conduct issues in Therasense, Inc. v. Becton, Dickinson and Co.'

As many of you know, it has been over twenty years since the Federal Circuit last convened en banc to address the inequitable conduct doctrine in Kingsdown Medical Consultants, …

The Human Right To Health And Hiv/Aids: South Africa And South-South Cooperation To Reframe Global Intellectual Property Principles And Promote Access To Essential Medicines, Erika George

Indiana Journal of Global Legal Studies

The HIV/AIDS pandemic has had a devastating and disproportionate impact in countries of the Global South. The experience of an individual infected with HIV in Africa is very different than that of an individual infected with HIV in America. Life expectancy varies sharply. The ability or inability to access medicines essential for treatment accounts for much of the variance. This article examines how the rhetoric of human rights used in the context of South Africa's AIDS crisis resonated across the Global South, resulted in a powerful social movement for access to medicines, and contributed to important changes in international intellectual …

Patents As Escalators, Amelia S. Rinehart

Vanderbilt Journal of Entertainment & Technology Law

High technology companies commit time, effort, and resources to innovation. Over the course of a research and development project, an innovative company may face several sequential decisions regarding whether to continue to invest in the project and whether to commercialize the discoveries that have been made. Companies often seek patents early in the research and development process to receive the right to exclude others from practicing the invention. Given a current trend toward earlier and earlier patent filing, several scholars suggest that this strategy could leave many inventions underdeveloped; companies may treat patents like real options, deciding later where to …