Intellectual Property Law Commons^™

Who Should Decide? Judges And Juries In Trademark Dilution Actions, Davis S. Welkowitz

Mercer Law Review

It has been sixteen years since a powerful form of federal trademark protection became available to a select group of trademark owners-those with "famous" trademarks. This relatively new protection, a form of infringement called trademark dilution, is the result of the Federal Trademark Dilution Act of 1995 (FTDA). This Act, which added a new section to the federal trademark statutes, was later amended by the Trademark Dilution Revision Act of 2006 (TDRA). These statutes have resulted in a plethora of court opinions, as litigants have eagerly sought to exploit the power of this statute. The major attraction of trademark dilution …

The Sopa-Tpp Nexus, Jonathan Band

Joint PIJIP/TLS Research Paper Series

The controversy in the United States over the Stop Online Piracy Act (SOPA) has profound implications for the Trans-Pacific Partnership (TPP) agreement. The SOPA debate underscores the importance of striking the proper balance in intellectual property laws to promote creativity and innovation. It demonstrates that over-protection can stifle free expression and the effective operation of the Internet as a medium of communication and commerce not only within a jurisdiction, but also extraterritorially. Additionally, the debate reveals the ability of the Internet community to mobilize quickly to defeat policies that it believes threaten its existence. TPP negotiators should understand the SOPA …

A Little Common Sense Is A Dangerous Thing: The Inherent Inconsistency Between Ksr And Current Official Notice Policy, Eli M. Sheets

The University of New Hampshire Law Review

[Excerpt] “The question of whether an invention is an obvious variation of existing technology is one that has troubled courts for decades. From its roots in nineteenth century case law to the recent Supreme Court decision KSR v. Teleflex, Inc., the doctrine of obviousness has waxed and waned—moving through a variety of judicially-created tests to a current state that is still far from perspicuous.

This paper will examine obviousness through a particular lens: the U.S. Patent and Trademark Office (“USPTO,” “PTO”) tool known as “official notice”—the practice of declaring a patent application’s claims unpatentable as obvious based on undocumented reasoning, …

Of Justice Sotomayor And The Jicarilla Apache Nation: Slouching Toward Intellectual Honesty And The Canons Of Construction, Jeremy Stevens

American Indian Law Journal

No abstract provided.

Advising Faculty On Law Journal Publication Agreements, Benjamin J. Keele

Library Staff Publications

No abstract provided.

The Public Nature Of Indian Reservation Roads, M. Brent Leonard

American Indian Law Journal

No abstract provided.

Enhancing Tribal Sovereignty By Protecting Indian Civil Rights: A Win-Win For Indian Tribes And Tribal Members, Rob Roy Smith

American Indian Law Journal

No abstract provided.

Gas Tax Agreements In Indian Country, Jonathan White

American Indian Law Journal

No abstract provided.

Justice Rehnquist’S Theory Of Indian Law: The Evolution From Mazurie To Atkinson – Where Did He Leave The Court?, Brenna Willott

American Indian Law Journal

No abstract provided.

The Myth Of The Sole Inventor, Mark A. Lemley

Michigan Law Review

The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented. But the canonical story of the lone genius inventor is largely a myth. Surveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. The result is a real problem for classic theories of patent law. …

Antitrust Rulemaking As A Solution To Abuse On The Standard-Setting Process, Adam Speegle

Michigan Law Review

While many recognize the critical role that technology plays in modern life, few appreciate the role that standards play in contributing to its success. Devices as prevalent as the modern laptop computer for example, may be governed by over 500 interoperability standards, regulating everything from the USB drive to the memory chip. To facilitate adoption of such standards, firms are increasingly turning to standard-setting organizations. These organizations consist of members of an industry who agree to abide by the organization's bylaws, which typically regard topics such as patent disclosure and reasonable licensing. Problems arise, however, when members violate these bylaws …

The Institutional Role In Arbitrating Patent Disputes, Murray Lee Eiland

Pepperdine Dispute Resolution Law Journal

This paper will address, in particular, the nature of an international patent dispute and how the rules of the main arbitral institutions influence the unfolding arbitration. The main issue considered here is if institutional rules address the particular needs of patent disputes. Arbitral institutions are prepared to resolve many kinds of disputes, but because they operate under different rules, some may be more or less prepared for the special nature of IP. Patent related disputes are even more specialized. Even small differences in institutional rules can have a large impact upon the unfolding arbitration. After a brief consideration of arbitrability, …

The Ontological Function Of The Patent Document, Andrew Chin

Faculty Publications

With the passage and impending implementation of the “first-to-file” provisions of the America Invents Act of 2011, the U.S. patent system must rely more than ever before on patent documents for its own ontological commitments concerning the existence of claimed kinds of useful objects and processes. This Article provides a comprehensive description of the previously unrecognized function of the patent document in incurring and securing warrants to these ontological commitments, and the respective roles of legal doctrines and practices in the patent system’s ontological project. Among other contributions, the resulting metaphysical account serves to reconcile competing interpretations of the written …

Check-In, Attendees Of The Symposium

NJTIP Annual Symposium

Check-in for the Northwestern Journal of Technology and Intellectual Property's 7th Annual Symposium

Rescuing The Invention From The Cult Of The Claim, Oskar Liivak

Cornell Law Faculty Publications

Patent law is certainly a specialized field but I didn’t think it would be a cult. The term ‘invention’ appears in many critical statutory locations. Yet we have been taught, perhaps brainwashed, to give the term zero substantive import. Substantive use of the invention has been purged from patent doctrine. Instead every substantive question in patent law is answered by reference to the claims, the legal descriptions of the ‘metes and bounds’ of a patent’s exclusionary reach. Despite its promise of precision and uniformity, our modern invention-less system is anything but precise and uniform. This article argues that the trouble …

The Future Of Free Expression In A Digital Age, Jack M. Balkin

Pepperdine Law Review

In the twenty-first century, at the very moment that our economic and social lives are increasingly dominated by information technology and information flows, the judge-made doctrines of the First Amendment seem increasingly irrelevant to the key free speech battles of the future. The most important decisions affecting the future of freedom of speech will not occur in constitutional law; they will be decisions about technological design, legislative and administrative regulations, the formation of new business models, and the collective activities of end-users. Moreover, the values of freedom of expression will become subsumed within a larger set of concerns that I …

Can Copyright Law Perform The Perfect Fouetté?: Keeping Law And Choreography On Balance To Achieve The Purposes Of The Copyright Clause, Katie M. Benton

Pepperdine Law Review

No abstract provided.

Will Gene Patents Impede Whole Genome Sequencing?: Deconstructing The Myth That 20% Of The Human Genome Is Patented, Christopher M. Holman

IP Theory

No abstract provided.

Data Management Policies And Issues With Life Science Data, Michelle Malizia

Lecture Series on E-Science

Data management and sharing are relatively new concepts in the health and life sciences fields. This presentation will cover some basic policies as well as the impediments to data sharing unique to health and life sciences data.

Rethinking “Murderabilia”: How States Can Restrict Some Depictions Of Crime As They Restrict Child Pornography, Joseph C. Mauro

Fordham Intellectual Property, Media and Entertainment Law Journal

Murderabilia refers to items whose commercial value stems from their relation to a notorious crime or criminal. To protect victims of crime from psychological harm, most states have passed laws restricting the sale of murderabilia. Many of these laws have been challenged on First Amendment grounds, and observers consider them to be of questionable constitutionality. I propose that the constitutional framework allowing states to restrict child pornography can solve this problem. In New York v. Ferber, the Supreme Court held that states may restrict child pornography as speech, without regard to its First Amendment value, because it is “intrinsically related” …

Piercing Pennoyer With The Sword Of A Thousand Truths: Jurisdictional Issues In The Virtual World, Andrew Cabasso

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Who Could Possibly Be Against A Treaty For The Blind?, Aaron Scheinwald

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note presents the history of the problem of VIPs' restricted access to information, a legal-realist analysis of the reasons for and against a WIPO treaty for the blind, and the contours of a best-case solution.

The Myth Of Generic Pharmaceutical Competition Under The Hatch-Waxman Act, Emily Michiko Morris

Fordham Intellectual Property, Media and Entertainment Law Journal

Without a doubt, health care costs are on the rise, and how to reduce those costs is of great concern to many. The Hatch-Waxman Act attempts to reduce pharmaceutical costs by encouraging market entry by lower-priced generic pharmaceuticals and without a doubt has been successful in doing so over the last three decades. The question is, at what price? Although designed to balance greater generic market entry with stronger incentives for brand-name pharmaceutical innovators to continue developing new drugs, the Act appears to have fall short of making those incentives nearly strong enough and, indeed, likely weakens them. Perhaps more …

The Indecency Of Indecency: How Technology Affects The Constitutionality Of Content-Based Broadcast Regulation, Nick Gamse

Fordham Intellectual Property, Media and Entertainment Law Journal

In the thirty-plus years since FCC v. Pacifica Foundation revolutionized content-based broadcast regulation, much has changed. Although broadcast television was recognized as a dangerously pervasive medium in 1978, it is no longer the dominant force that it once was, with the vast majority of Americans now paying for subscription television services like cable or satellite. And while the Pacifica Court strove to support parents in their struggle to protect their children from pervasive inappropriate content by upholding the FCC’s content regulation, technological developments like the V-Chip, cable boxes, DVRs, and satellite boxes have afforded modern parents various self-help alternatives. Many …

Moral Rights Of Composers: The Protection Of Attribution And Integrity Available To Musicians In The European Union And The United States, Tanja Makovec Petrik

Fordham Intellectual Property, Media and Entertainment Law Journal

The purpose of this paper is to illustrate the approaches taken in the European Union and the United States to protect moral rights of musicians, specifically the right of integrity, and to give a sense of a possible future trend in the development of this issue. Currently, the United States protects an author’s right of integrity through other legal frameworks, like contract law or defamation, but does not expressly recognize moral rights. This paper proposes that the United States adopt a middle ground approach, like that taken by the United Kingdom, and provide limited, but explicit, moral rights protection to …

Printable Schedule, Texas Medical Center Library

Lecture Series on E-Science

No abstract provided.

Copyright And The Vagueness Doctrine, Bradley E. Abruzzi

University of Michigan Journal of Law Reform

The Constitution's void-for-vagueness doctrine is itself vaguely stated. The doctrine does little to describe at what point vague laws-other than those that are entirely standardless-become unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three collateral factors that affect its inclination to invalidate a law for vagueness: (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Measured against these factors, copyright law does not meet the vagueness doctrine's minimum requirement of fair notice to the public. Copyright, by …

A Case Against The Acta, Kenneth L. Port

Cardozo Law Review

The Anti-Counterfeiting Trade Agreement (ACTA) is being considered by the Obama Administration as an executive order. If signed, this order will greatly enhance controls placed at the borders of thirty-seven countries to attempt to stop the international flow of so-called counterfeit goods. To remove the social, political, and emotional stigma, I adopt the value-neutral term imitative commodity to describe what some call counterfeits, knockoffs, or pirated goods, among others. This Article uses just three manufacturers of luxury status goods to consider whether the ACTA will have optimal or negative consequences. It concludes that the data supporting the need for the …

Privacy, Copyright, And Letters, Jeffrey L. Harrison

UF Law Faculty Publications

The focus of this article is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …

Privacy, Copyright, And Letters, Jeffrey L. Harrison

UF Law Faculty Publications

The focus of this Essay is the privacy of letters – the written manifestations of thoughts, intents, and the recollections of facts directed to a person or a narrowly defined audience. The importance of this privacy is captured in the novel Atonement by Ian McEwan and in the film based on the novel. The fulcrum from which the action springs is a letter that is read by someone to whom it was not addressed. The result is literally life-changing, even disastrous for a number of characters. One person dies, two people seemingly meant for each other are torn apart and …