Intellectual Property Law Commons^™

The Google Police: How The Indictment Of The Pirate Bay Presents A New Solution To Internet Piracy, Bernard A. Mantel

University of Miami Business Law Review

No abstract provided.

Cheaper Watches And Copyright Law: Navigating "Gray Markets" After The Supreme Court's Split In Costco V. Omega, S.A., Parker A. Howell

Washington Journal of Law, Technology & Arts

Some manufacturers seek to prevent unauthorized importation and sale of their foreign-made products, called “gray market” goods or “parallel imports,” through copyright law. U.S. copyright law prohibits importation of copyrighted works without the copyright owner’s permission. At least one manufacturer, Omega, sought to extend this protection to its watches, a useful product, by affixing copyrighted logos. In Costco v. Omega, S.A., Omega claimed Costco violated its distribution right by selling the watches in the U.S., while Costco contended that a first sale abroad had extinguished Omega’s rights. The case reached the U.S. Supreme Court, which affirmed by an evenly …

Twenty-First Century Trademarks: How Quirky Quick Response Codes (Quircs) Will Challenge The Lanham Act And The Uspto, Matthew C. Kulseth

Cybaris®

No abstract provided.

Copyright's Creative Hierarchy In The Performing Arts, Michael W. Carroll

Vanderbilt Journal of Entertainment & Technology Law

Copyright law grants authors certain rights of creative control over their works. This Article argues that these rights of creative control are too strong when applied to the performing arts because they fail to take account of the mutual dependence between writers and performers to fully realize the work in performance. This failure is particularly problematic in cases in which the author of a source work, such as a play or a choreographic work, imposes content-based restrictions on how a third party may render the work in performance. This Article then explores how Congress might craft a statutory license to …

Who Owns An Avatar? Copyright, Creativity, And Virtual Worlds, Tyler T. Ochoa

Vanderbilt Journal of Entertainment & Technology Law

Today's massively multi-player online role-playing games (MMORPGs) offer their users the ability to create or customize their own avatars with distinctive visual appearances. This Article contends that users who take advantage of that ability are exercising significant creative choices, such that they should be considered the "authors" and copyright owners of their own avatars. The Copyright Act envisions several types of collaborative authorship, including joint authorship, works made for hire, and collective works. None of these models provides a good fit for user-created avatars, because avatars meet some, but not all, of the elements for each model. Here, the two …

The Elusive "Marketplace" In Post-Bilski Jurisprudence, Andrew Chin

Campbell Law Review

The Supreme Court’s 2010 decision in Bilski v. Kappos appears to have provided inadequate guidance to the courts and the Patent Office regarding the scope of the abstract-ideas exclusion from patentable subject matter. Federal Circuit Chief Judge Randall R. Rader, however, appears to have found in that decision a clear vindication of his own view that the machine-or-transformation test is incorrectly grounded in “the age of iron and steel at a time of subatomic particles and terabytes,” and thus fails, for example, to accommodate advances in “software [that] transform[] our lives without physical anchors.” Chief Judge Rader has subsequently authored …

Updating The Patent System's Novelty Requirement To Promote Small-Molecule Medicinal Progress, 45 J. Marshall L. Rev. 1151 (2012), Jason Brewer

UIC Law Review

No abstract provided.

No 'Direction' Home: An Alternative Approach To Joint Infringement, W. Keith Robinson

Faculty Journal Articles and Book Chapters

U.S. start-ups continue to create new technologies that provide a high degree of connectivity between consumer devices such as mobile phones. In order to protect their innovations, many companies acquire patents that contain method claims covering interactive technology. To successfully enforce a patent when more than one party performs all of the steps of a claimed method, the Federal Circuit has held under its joint infringement doctrine that the patentee must show that one of the alleged infringers “directed or controlled” the actions of the other party. Perceptive parties that form a relationship that does not rise to the level …

Patent Law As Public Law, Megan M. La Belle

Scholarly Articles

Historically, patent litigation has been viewed and treated primarily as private law litigation, as opposed to public law litigation. This paradigm has begun to shift, however, as various stakeholders have come to acknowledge the profound impact that the patent system – and particularly invalid patents – have on the public at large. Yet, in order for a public law regime to succeed, there must be a host of enforcement mechanisms available, including the opportunity for privately-initiated litigation.

Public interest organizations have played a prominent role in the enforcement of certain public rights, such as free speech, equal protection, and environmental …

The Wrath Of The Blizz King: How The Ninth Circuit’S Decision In Mdy Industries, Inc. V. Blizzard Entertainment May Slay The Game Genie, Alessandra Garbagnati

UC Law SF Communications and Entertainment Journal

Since its release in 2004, Blizzard Entertainment's ("Blizzard") World of Warcraft ("WoW") has become the world's most infamous and popular massively multiplayer online role playing game. The company's strong anticheating policy culminated in the Ninth Circuit's decision in MDY Industries v. Blizzard Entertainment, where the court held that the rights holders could use the Digital Millennium Copyright Act ("DMCA") to prevent circumvention even where there is no actual copyright infringement involved. Although cheaters are not a sympathetic group of people, the Ninth Circuit's decision strays from similar decisions by other circuit courts and potentially grants rights holders like Blizzard the …

Settlement Of India/Eu Wto Dispute Re Seizures Of In-Transit Medicines: Why The Proposed Eu Border Regulation Isn't Good Enough, Brook K. Baker

Joint PIJIP/TLS Research Paper Series

European Customs officials have used fictive patent rights to justify the seizure of lawful generic medicines produced in India and destined for non-European markets. Following a public outcry and initiation of two WTO complaints, the EU has proposed amendments to Border Regulations Measure 1383/2003. The Proposed Border Regulation in its current form will not adequately resolve the risk of interception in Europe of medicines lawfully manufactured and exported from India and destined for lawful import and consumption in a non-EU country. This analysis concludes that multiple weaknesses remain in the Border Regulations, including: (1) continued coverage of alleged patent and …

Acta & Access To Learning Materiols In Morocco: An Examination Of How Acta Impacts The Creation Of A Moroccan Orphan Works Regime, Caroline B. Ncube

Joint PIJIP/TLS Research Paper Series

This paper briefly examines the current regime of copyright law in Morocco and seeks to examine the status of orphan works in Morocco, in lieu its membership as the sole African country in the recently signed Anti-Counterfeiting Trade Agreement (ACTA). The paper concludes that Morocco can, and ought to, enact exceptions and limitations that facilitate meaningful access to orphan works in both analogue and digital formats.

Lessons From Pfizer's Disputes Over Its Viagra Trademark In China, Daniel Chow

Maryland Journal of International Law

No abstract provided.

The Anti-Counterfeiting Trade Agreement Of 2010: Two Problems And One Unanswered Question, Roxane Delaurell

Global Business Law Review

Further, as might be expected, uncertainty in the international context is likely to be the greatest at that point where enforcement is called for; that is, that point where the tangible expression of the force of law and of the courts‘ authority must be executed. It is for this reason that the Anti-Counterfeiting Trade Agreement (―ACTA) was drafted. Finalized in December of 2010, ACTA seeks to address problematic issues with regard to enforcement of IPR (Intellectual Property Rights) across borders and ―in the digital environment.International trafficking in unlicensed copyrighted material, and counterfeit trademarked goods and consumables––the two areas addressed by …

Student Intellectual Property Issues On The Entrepreneurial Campus, Bryce C. Pilz

Michigan Business & Entrepreneurial Law Review

This article examines issues that are more frequently arising for universities concerning intellectual property in student inventions. It seeks to identify the issue, explain the underlying law, identify actual and proposed solutions to these issues, and explain the legal ramifications of these potential solutions.

Property As Control: The Case Of Information, Jane B. Baron

Michigan Telecommunications & Technology Law Review

If heath policy makers' wishes come true, by the end of the current decade the paper charts in which most of our medical information is currently recorded will be replaced by networked electronic health records ("EHRs").[...] Like all computerized records, networked EHRs are difficult to secure, and the information in EHRs is both particularly sensitive and particularly valuable for commercial purposes. Sadly, the existing federal statute meant to address this problem, the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), is probably inadequate to the task.[...] Health law, privacy, and intellectual property scholars have all suggested that the river …

Patents V. Statutory Exclusivities In Biological Pharmaceuticals - Do We Really Need Both, Yaniv Heled

Michigan Telecommunications & Technology Law Review

Over the past decade or so, the United States has been the arena of a boisterous debate regarding the creation of a new regulatory framework for the approval of generic versions of biologics-based pharmaceutical products (also known as "biological products" and "biologics")--an important and increasingly growing class of drugs. The basic purpose of such a framework is to create a fast and less-costly route to FDA approval for biologics that would be similar or identical to already-approved biological products--typically ones that are sold on the market at monopoly rates--thereby allowing cheaper versions of such medicines to enter the market. One …

Res Or Rules - Patents And The (Uncertain) Rules Of The Game, Emily Michiko Morris

Michigan Telecommunications & Technology Law Review

The Article proceeds as follows. Part I reviews the basics of patent claiming, the traditional view of claims as real property deeds, and why uncertainty as to the boundaries of those deeds is considered undesirable. Part II critiques the analogy between real property deeds and patent claims, highlighting in particular the requisite novelty and conceptual nature of the patent res, the differences between the purposes of the patent system and real property regimes, and the effect of these different purposes on the expected predictability of patent boundaries. Part III then changes the analogy from patent claims as property deeds to …

Improving Patent Notice And Remedies: A Critique Of The Ftc's 2011 Report, Alan Devlin

Michigan Telecommunications & Technology Law Review

2011 was an eventful year for those interested in patent law. In March, the Federal Trade Commission ("FTC") released a report that urges the Patent and Trademark Office ("PTO") and courts to remedy perceived inadequacies underlying the U.S. patent system. The FTC observes that people of skill in the art routinely encounter difficulty in determining the meaning, and hence exclusive scope, of a patent's claims. Not only does this failure of notice stymie the efficient dispersion of technology throughout the economy, the FTC argues, but the judicial process can aggravate the problem by granting inappropriate remedies in patent-infringement cases. Then, …

Fighting The First Sale Doctrine: Strategies For A Struggling Film Industry, Sage Vanden Heuvel

Michigan Telecommunications & Technology Law Review

The first sale doctrine, codified at 17 U.S.C. § 109, grants the owners of a copy of a copyrighted work the right to sell, rent, or lease that copy without permission from the copyright owner. This doctrine, first endorsed by the Supreme Court in Bobbs-Merrill Co. v. Straus, was established at a time when the owner of a good necessarily had to forego possession in order to sell or lease the item to another.[...] The changes in technology and industry over the past two decades threaten to upend this balance. In today's digital world, an owner of a copy of …

An Explicit Policy Lever For Patent Scope, Anna B. Laakmann

Michigan Telecommunications & Technology Law Review

Since its inception in 1982, the Federal Circuit has declined to take an overt role in setting patent policy. Dan Burk and Mark Lemley have observed that the court instead implicitly engineers patent policy through selective application of its patentability rules, which operate as "policy levers." Recent decisions on the patentability of diagnostic and therapeutic methods illustrate a significant problem with this approach. By maintaining a façade of adjudicative rule formalism while tacitly manipulating its rules to approximate policy goals, the court perpetuates empirical uncertainty about the patent law's practical effects. This Article proposes that the Federal Circuit use the …

Burying, Robert Brendan Taylor

Michigan Telecommunications & Technology Law Review

When applying for a patent, applicants must provide the examiner with all known material prior art. Those who fail to do so can be charged with inequitable conduct. But applicants can still effectively hide material prior art references by submitting them along with large quantities of immaterial prior art to the examiner. This deceptive practice, known as "burying," is generally not considered inequitable conduct. This Essay summarizes the current legal landscape concerning burying, discusses the costs associated with the practice, and suggests ways to deter and punish those who do it.

Deconstructing Shanzhai - China's Copycat Counterculture: Catch Me If You Can, William Hennessey

Campbell Law Review

What is a “Chinese copy”? And why does China have a reputation as the quintessential “copycat culture,” where nimble knock-offs of virtually any article are in the daily news and respect for and protection of the intellectual property owned by others is widely perceived to be either weak or non-existent? Are copying and creativity diametrical opposites, two sides of the same coin, or unrelated to one other? Are wildly successful imitators uncreative? Does the charge that “the Chinese are the masters of copying” reflect something unique about China’s traditions and culture? Do China’s cultural traditions (particularly Confucianism) foster copying or …

The Mark Of A Resold Good, Yvette Joy Liebesman, Benjamin Wilson

All Faculty Scholarship

Over the past ten years, the Internet has revolutionized the resale market ― casual resellers have migrated from garage sales, swap meets, and classified ads, to eBay and Craigslist, turning hobbies into lucrative businesses. This has affected the sales of new goods and troubled manufacturers, who seek to curtail the growth of this secondary market.

Most of these on-line resales should be protected by the first-sale doctrine, a well-known defense to infringement claims that applies across patent, copyright, and trademark law. Simply stated, once a manufacturer sells a product, it may not interfere with secondary sales of that product. Yet …

Comments: Modest Proposals For A Complex Problem: Patent Misuse And Incremental Changes To The Hatch-Waxman Act As Solutions To The Problem Of Reverse Payment Settlements, Alyssa L. Brown

University of Baltimore Law Review

No abstract provided.

Made In America: A Comparative Analysis Of Copyright Law Protections For Fashion Design In Asia And The United States, Alexandra Mackey

American University Business Law Review

No abstract provided.

A Thousand Tiny Pieces: The Federal Circuit's Fractured 'Myriad' Ruling, Lessons To Be Learned, And The Way Forward, Jonathan Stroud

Celebrating WCL Student Authors

The Supreme Court granted, vacated, and remanded the infamous Myriad gene isolation patentability case to the Court of Appeals for the Federal Circuit (CAFC) in light of the recent Prometheus decision, which held 9-0 that a certain diagnostic method was invalid subject matter because it was an abstract idea merely modified by other obvious steps. This Essay argues that Myriad should be affirmed again by the Federal Circuit, particularly in light of Prometheus, in order to inject certainty, clarity, and consistency into the § 101 patentable subject matter jurisprudence

"Hostile Learning Environment:" Developing Student Speech Regulation By Applying The Hostile Work Environment Analysis To Cyberbullying, Carla Diblasio

Journal of Law, Technology, & the Internet

No abstract provided.

Antitrust And Patent License Agreements: A New Look At The Grantback Clause In High Technology Markets, John M. Murray

Journal of Law, Technology, & the Internet

No abstract provided.

Do Robomemos Dream Of Electric Nouns?: A Search For The Soul Of Legal Writing, Ian Gallacher

Journal of Law, Technology, & the Internet

No abstract provided.