Intellectual Property Law Commons^™

Leaving Dumb Phones Behind: A Commentary On The Warrantless Searches Of Smartphone Data Granted In R. V. Fearon, Jordan Fine

Canadian Journal of Law and Technology

Given the incredible rate of smartphone technological evolution, is it about time the Supreme Court of Canada devised a special test to give law enforcement agents significantly more power to search through phone data without a warrant upon arrest of a suspect? In R. v. Fearon, the majority did just that. But this article argues the opposite is true: the increasing potential for immense privacy infringements when police search powerful and constantly evolving technological devices demands a greater limitation to police powers.

In recent cases, the Supreme Court has agreed with the position that limitations are needed concerning computers. Additionally, …

Big Storms, Big Debt, And Biggery-Waters: Navigating Florida's Uncertain Flood Insurance Future, Loren M. Vasquez

Seattle Journal of Environmental Law

No abstract provided.

Can Sharks Be Saved? A Global Plan Of Action For Shark Conservation In The Regime Of The Convention On Migratory Species, James Kraska, Leo Chan Gaskins

Seattle Journal of Environmental Law

Shark populations throughout the world are at grave risk; some spe-cies have declined by 95 percent. The most recent IUCN (Interna-tional Union for the Conservation of Nature) assessment by the Shark Specialist Group (SSG) found that one-fourth of shark and ray spe-cies face the prospect of extinction. This article proposes an engage-ment plan to accelerate efforts by states and international organiza-tions to conserve and protect sharks worldwide. Sharks are found throughout all of the world’s oceans, and collec-tively they occupy an indispensable niche as apex predators at the top of the ocean trophic ecosystem. These fish function as an im-portant …

What's It Worth To Keep A Secret?, Gavin C. Reid, Nicola Searle, Saurabh Vishnubhakat

Duke Law & Technology Review

This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for other intellectual property protections, particularly patents. Accordingly, U.S. public policy correctly places a growing emphasis on characterizing the scope of trade secrets, creating incentives for their productive use, and imposing penalties for their theft. Yet amid this complex ecosystem of legal doctrine, economic policy, commercial strategy, and enforcement, there is little research or consensus on how to assign value to trade secrets. One reason for this gap is …

What's It Worth To Keep A Secret?, Gavin C. Reid, Nicola Searle, Saurabh Vishnubhakat

Faculty Scholarship

This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for other intellectual property protections, particularly patents. Accordingly, U.S. public policy correctly places a growing emphasis on characterizing the scope of trade secrets, creating incentives for their productive use, and imposing penalties for their theft. Yet amid this complex ecosystem of legal doctrine, economic policy, commercial strategy, and enforcement, there is little research or consensus on how to assign value to trade secrets. One reason for this gap is …

Foreign Investment In The People's Republic Of China: Compensation Trade, Joint Ventures, Industrial Property Protection And Dispute Settlement, Kevin K. Maher

Georgia Journal of International & Comparative Law

No abstract provided.

Copyright And Social Media: A Tale Of Legislative Abdication, Diane Leenheer Zimmerman

Pace Law Review

The focus of this article will be on what I call DMCA 2.0. It will begin by discussing the Digital Millennium Copyright Act (DMCA) and why that statute, passed in 1998 to shore up the enforceability of copyright online by protecting content providers’ ability to engage in forms of technological self-help against online copyright infringers, has been problematic. Part II describes largely unsuccessful efforts in the form of statutes and trade agreements to shore up the DMCA. Part III turns to the latest salvo, the adoption of “voluntary agreements” whereby content owners and ISPs, in particular social media platforms, join …

Social Justice, Social Norms And The Governance Of Social Media, Tal Z. Zarsky

Pace Law Review

This article proceeds as follows: Part II briefly addresses the theoretical arguments regarding the pros and cons of various governance strategies, focusing on the advantages, disadvantages and pitfalls of reliance on private parties. In Part III, the article describes, in general terms, the above-mentioned empirical study, explaining its methodology, the specific challenges to its design and implementation, and how these were met. The discussion specifically centers on a survey taken to establish the nature of social norms. Part IV presents a specific test case: whether pseudonymity should be permitted in social media or should “real names” be mandatory. Part V …

Anarchy, Status Updates, And Utopia, James Grimmelmann

Pace Law Review

Social software has a power problem. Actually, it has two. The first is technical. Unlike the rule of law, the rule of software is simple and brutal: whoever controls the software makes the rules. And if power corrupts, then automatic power corrupts automatically. Facebook can drop you down the memory hole; PayPal can garnish your pay. These sovereigns of software have absolute and dictatorial control over their domains.

Is it possible to create online spaces without technical power? It is not, because of social software’s second power problem. Behind technical power, there is also social power. Whenever people come together …

Making Private Copies In The Cloud: Yes, No, Maybe?, Lucie Guibault

Articles, Book Chapters, & Popular Press

No abstract provided.

Use Of Native American Tribal Names As Marks, Brian Zark

American Indian Law Journal

No abstract provided.

Legal Nature And Contractual Conditions In Know-How Transactions, Carlos M. Correa

Georgia Journal of International & Comparative Law

No abstract provided.

The Debilitating Effect Of Exclusive Rights: Patents And Productive Inefficiency, William Hubbard

Florida Law Review

Are we underestimating the costs of patent protection? Scholars have long recognized that patent law is a double-edged sword. While patents promote innovation, they also limit the number of people who can benefit from new inventions. In the past, policy makers striving to balance the costs and benefits of patents have analyzed patent law through the lens of traditional, neoclassical economics. This Article argue that this approach is fundamentally flawed because traditional economics rely on an inaccurate oversimplification: that individuals and firms always maximize profits. In actuality, so-called "productive inefficiencies" often prevent profit maximization. For example, cognitive biases, bounded rationality, …

Disuniformity, Jason Rantanen, Lee Petherbridge Ph.D.

Florida Law Review

The United States Court of Appeals for the Federal Circuit is a response to a failure in judicial administration that produced a fractured, unworkable patent law—one that Congress concluded ill-served entrepreneurship and innovation. The purpose of the response—vesting exclusive jurisdiction for patent appeals in the Federal Circuit—was to permit that court to develop patent law in the direction of greater clarity and uniformity. Both at the time of the Federal Circuit's creation and again more recently scholars, judges, and practitioners have waged great debates over whether patent law uniformity furthers the ultimate goals of entrepreneurship and innovation. These debates have …

Awareness And Perception Of Copyright Among Teaching Faculty At Canadian Universities, Lisa Di Valentino

FIMS Presentations

In this talk I discuss the results of a survey of Canadian university faculty members undertaken from October to December 2014. The survey sought to determine teaching faculty awareness of copyright law and institutional policy and training, and how they would respond in various scenarios.

Analysis of the results suggests that while faculty members are aware of the existence of their institution's copyright policy, much fewer know whether their institution offers training. Of those who do know about training, only one-third have attended. However, faculty who have attended copyright training find that their knowledge is enhanced by the experience.

It …

Copyright And Control, Margaret Ann Wilkinson

Law Presentations

Canada's Copyright Act has been said to create a balance -- but it is at least a 3-way balance, often difficult to discern in an individual case. Copyright is also fully statutory in Canada but changes as Parliament dictates -- and the latest changes to the Act (including "education" as fair dealing) have yet to be judicially interpreted. Given this environment, can control of the copyright portfolio be achieved in any given context?

The Marrakesh Treaty And The Targeted Uses Of Copyright Exhaustion, Marketa Trimble

Boyd Briefs / Road Scholars

Prof. Marketa Trimble presented The Marrakesh Treaty and the Targeted Uses of Copyright Exhaustion at the International IP Scholars Roundtable held at Duke Law School on May 1, 2015.

Integration Of Information Literacy Skills To Mechanical Engineering Capstone Projects, Farshid Zabihian, Mary L. Strife, Marian G. Armour-Gemmen

Faculty & Staff Scholarship

Searching for information and using that information appropriately is an essential part of every engineering design project. It has been reported that design engineers spend about 30% of their time searching for information. Experience shows that even senior level students have not received proper training, either directly or indirectly, in information literacy (IL). They usually search for information intuitively. For mechanical and aerospace engineering students at West Virginia University Institute of Technology (WVU Tech), the Mechanical Engineering System Design I and II courses (MAE 480 and 481) are probably the last chance to teach students about IL. In this project, …

Determining Trademark Standing In The Wake Of Lexmark, John L. Brennan

Notre Dame Law Review

This Note examines relevant statutory language, case law, and scholarly criticism, and ultimately contends that the standard articulated in Lexmark should apply to both types of claims. Part I provides background regarding the history of the Lanham Act, looking particularly at the ways in which courts have treated trademarks and false advertising differently. Part II discusses the Lexmark decision and the recent district court cases that have addressed its holding. Part III examines the text of both the Lanham Act and the Supreme Court’s opinion in Lexmark in order to determine the decision’s scope, and concludes that Lexmark’s holding …

Copyright Protection For Tattoos: Are Tattoos Copies?, Michael C. Minahan

Notre Dame Law Review

This Note argues that, although “flash art” and other drawings upon which a tattoo may be based are likely copyrightable subject matter under the Copyright Act of 1976 (Copyright Act), the policy implications of granting copyright protection to tattoos militate against extending such protection. To avoid these consequences, the copyright statute should be interpreted as failing to include the human body as a “copy” within the scope of the Copyright Act and, therefore, tattoos would not be subject to the protection of the Act. Part I provides a background on the statutory framework of the Copyright Act, including the requirements …

Have We Gone Too Far: Does The Seventh Amendment Compel Fact-Finding Before Reaching A Decision On Patent-Eligible Subject Matter?, Jesse D.H. Snyder

Chicago-Kent Journal of Intellectual Property

No abstract provided.

A Path Toward An Increased Role For The United States In Patent Infringement Litigation, Caroline M. Turner

Chicago-Kent Journal of Intellectual Property

A number of major statutory schemes implicate federal interests but do not provide for explicit authority for the United States to bring lawsuits for damages or to obtain injunctive relief. The patent statutes provide that the patentee may sue in the case of infringement, and court decisions have extended that right to certain licensees. Accordingly, the United States has participated in cases in which it is not a co-patentee or licensee only as an amicus. Yet the government arguably has an interest in intervening in or instituting, as a co-plaintiff, infringement cases involving certain patents. Recent scholarship has renewed attention …

Enabling Access To Clinical Trial Data: When Is Unfair Use Fair?, Daria Kim

Chicago-Kent Journal of Intellectual Property

This inquiry is prompted by the unprecedented policy of the European Medicines Agency that enables the disclosure of clinical trial reports submitted for drug marketing authorization, effective as of January 1, 2015. It addresses the question whether such practice is in compliance with the international standard of clinical data protection under Article 39.3 of the TRIPS Agreement. Most scholarly and policy debate regarding this provision analyzes whether it precludes the referential use of data to facilitate the approval of a generic drug. Rather than focusing on a particular use, this Article seeks to identify the principle underlying the protection obligation …

Biosociality, Reimagined: A Global Distributive Justice Framework For Ownership Of Human Genetic Material, David J. Jefferson

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Effect Of Economic Crises On Patenting Activity Across Countries, Daniel Benoliel, Michael Gishboliner

Chicago-Kent Journal of Intellectual Property

This article offers a conceptual and empirical contribution regarding the effect of economic crises on patenting activity across countries. It does so in the midst of the predominant general view that economic crises flatly chill patenting activity for all countries alike.

Financial crisis literature commonly assumes that, during global financial crises, private enterprises consequently tend to retreat to the safety of their domestic markets. These enterprises presumably react this way because of the lesser familiarity of foreign markets, the currency risks involved in international investment, and the uncertainties regarding the issue of how states will treat foreign assets.

This article …

The Constitutionality Of Design Patents, Ralph D. Clifford, Richard J. Peltz-Steele

Chicago-Kent Journal of Intellectual Property

Design patents have been part of American law since 1842. In that time, only just over 600,000 design patents have been issued, with more than half of these being granted in the last twenty years. This quantity is dramatically fewer than the number of utility patents issued which is rapidly approaching 9,000,000 issued patents. Possibly because of the low usage of design patents over time, no case law and little literature address the constitutional issues raised by them. This article intends to overcome that shortcoming. Two constitutional aspects of design patents will be examined.

First, congressional authority to adopt the …

Open Source Business Models And Synthetic Biology, Tej Singh

Chicago-Kent Journal of Intellectual Property

The software industry has successfully utilized open source business models namely with software such as Android and Linux. Open source business models allow individuals to collaborate and share information without fear that the shared information will be commercially misused. Given the similarities between software source code and genetic sequences, innovators in the field of synthetic biology feel that open source business models can help further innovation for synthetic biology in a similar manner. However, when determining whether to join an open source project, practitioners must first identify if such a project will be beneficial to their goals. This Comment discuss …

Enabling Patentless Innovation, Clark D. Asay

Maryland Law Review

No abstract provided.

Aspex Eyewear, Inc. V. Marchon Eyewear, Inc. And Brain Life, Llc. V. Elekta, Inc.: Irreconcilable Conflict In The Law Governing Claim Preclusion In Patent Cases, Christopher Petroni

Chicago-Kent Journal of Intellectual Property

In 1991, the Federal Circuit held that a judgment on the merits in a patent infringement action bars future claims based on products that are “essentially the same” as the product at issue in the former suit. This rule governed claim preclusion in patent actions until at least 2009. Then, in 2012, the Federal Circuit upended the apple cart with Aspex Eyewear, Inc. v. Marchon Eyewear, Inc., 672 F.3d 1335 (Fed. Cir. 2012), holding that a judgment in an infringement suit never bars future claims against products that could not have been accused in the former litigation, essentially the …

The History And Future Of E-Commerce Patents, Dennis D. Crouch, Mitchell L. Terry

Faculty Publications

The past two decades have seen a great rise in the patenting of e-commerce inventions. Now, those same patents are taking an equally great fall. In a series of four recent cases, the U.S. Supreme Court has shifted the doctrine of patent eligibility and, in the process, raised the bar for e-commerce and software patents - making it more difficult to obtain and enforce those types of patents.