Intellectual Property Law Commons^™

Where There's A Will, There's A Way: Reconciling Theories Of Willful Infringement And Disgorgement Damages In Trademark Law, Rachel Anne Zisek

Journal of Intellectual Property Law

No abstract provided.

Clear And Convincing Disparagement: An Argument For A Higher Evidentiary Standard For When The T.T.A.B. Considers Cancelling A Well-Known, Tenured Trademark, John C. Thomas Iii

Journal of Intellectual Property Law

No abstract provided.

Slide To Unlock: Apple-Samsung, Alice, And The Need For Clarity In Assessing Patent-Eligibility Under Section 101 For Touchscreen Software Patents, Tucker J. Mckinley

Journal of Intellectual Property Law

No abstract provided.

The Right To Say, "I Didn't Write That": Creating A Cause Of Action To Combat False Attribution Of Authorship On The Internet, Kathleen Brennan Hicks

Journal of Intellectual Property Law

No abstract provided.

The Increasing Use Of Challenges To Expert Evidence Under Daubert And Rule 702 In Patent Litigation, Douglas G. Smith

Journal of Intellectual Property Law

No abstract provided.

Stop In The Name Of The Pto! A Review Of The Fresenius Saga And Pto-Judicial Interplay, Wayne A. Kalkwarf

Journal of Intellectual Property Law

No abstract provided.

Copyright As Contract, Jeffrey L. Harrison

Journal of Intellectual Property Law

Copyright is essentially a contract between the author and the public with the government acting as the agent of the public. The consideration received by authors is defined by duration and breadth of exclusivity. The consideration for the public is the creation of a "work" that will be available on a limited basis for the life of the author plus 70 years and then available without limit after that. If there were no transaction costs at all, it would be possible to "pay" authors different amounts of exclusivity. Perhaps a greeting card would get one holiday season of exclusivity, if …

Table Of Contents, Vol. 22:2, Journal Of Intellectual Property Law

Journal of Intellectual Property Law

No abstract provided.

Cutting Out The Middleman: Why "Look And Feel" Should Be Ignored In Trade Dress Law, Nicholas Dimarino

St. John's Law Review

(Excerpt)

Part I of this Note discusses the background and elements of general trade dress law. Part II discusses the narrower issue of "look and feel" in the context of websites and outlines how courts have currently addressed the "look and feel" issue. Part III proposes that courts ignore the artificial "look and feel" distinction and instead apply normal trade dress analyses and elements. This solution, which requires that courts adhere to a workable standard that serves the underlying purpose of trade dress law, allows recognition of the distinctive characteristics of website trade dress claims, while reducing the risk of …

Protecting American Innovators By Combating The Decline Of Patents Granted To Small Entities, W. Keith Robinson

St. John's Law Review

(Excerpt)

Part I of this Article discusses the current state of the U.S. patent system and reviews some of the challenges entrepreneurs and small entities face regarding patenting their inventions. Part II reviews some patent reform proposals and existing programs and discusses their impact on small entities. Part III highlights the current USPTO examination programs and discusses the effectiveness of the various programs. Part IV sets forth the proposed program, prioritizing a select number of patent applications where the inventor is an entrepreneur or small entity. The Article concludes in Part V, which suggests how patent stakeholders, including the USPTO, …

Copyright Update For The 2015 Nevada Bar Intellectual Property Law Conference, Marketa Trimble

Boyd Briefs / Road Scholars

Professor Marketa Trimble presented these materials to the Intellectual Property Law Section of the Nevada Bar on October 23, 2015. Over the course of her presentation, Prof. Trimble covered significant legal developments and statistical trends in copyright law from the 2014-2015 period, both in the United States and abroad.

Patent Working Requirements: Historical And Comparative Perspectives, Marketa Trimble

Boyd Briefs / Road Scholars

On October 16, 2015, Professor Marketa Trimble presented these materials at a conference hosted by the UC Irvine School of Law. The theme of the conference was "Patent Sovereignty and International Law."

Parody And Fair Markets, Jessica Silbey

Faculty Scholarship

In December 2011, the UK Intellectual Property Office commissioned the Centre for Intellectual Property Policy and Management at Bournemouth University to research the effects of parody on copyrighted works. Do parodies harm the market for the underlying work? How might we measure the economic effects of parody, as incentive depressors or engines?

UK copyright law does not contain an exception specifically covering parodies. The authors of the study perceive the UK copyright law as one of the most restrictive in seven jurisdictions surveyed (US, Canada, Australia, France, Germany, Netherlands, UK) with regard to parodies. By commissioning this research, the UK …

Here Today, Gone Tomorrow? Post-Grant Review And Ptab Interpretation Of § 101 Subject Matter After Myriad, Conor T. Flynn

Buffalo Intellectual Property Law Journal

Post-grant review is a new review procedure for granted patents in the United States. The procedure, instituted as a mechanism to get rid of "bad patents," allows any outside party, within nine months of the patent grant date, to challenge the validity of a granted patent on any ground under the patent law, including patentable subject matter, provided that the petitioner can demonstrate that it is more likely than not that at least one of the claims challenged in the petition is unpatentable, or if there is a showing that "the petition raises a novel or unsettled legal question that …

Very Few Appreciated Just How Bad Aia Inter Partes Reviews (Iprs) Would Be For Patent Owners, Although Ipr Denials Have Been, For Patent Owners, A Glimmer Of Hope, Stacy Lewis, Tom Irving

Buffalo Intellectual Property Law Journal

No abstract provided.

Spotlight On Claim Construction Before Ptab, James Stein, Jennifer Gupta, Hojung Cho, Stacy Lewis, Tom Irving

Buffalo Intellectual Property Law Journal

No abstract provided.

Stay Awhile: The Evolving Law Of District Court Stays In Light Of Inter Partes Review, Post-Grant Review, And Covered Business Method Post-Grant Review, Jonathan Stroud, Linda Thayer, Jeffrey C. Totten

Buffalo Intellectual Property Law Journal

No abstract provided.

Amending Rather Than Cancelling Claims In Inter Partes Reviews, Stacy Lewis, Tom Irving

Buffalo Intellectual Property Law Journal

No abstract provided.

Navigating The Limitations On Discovery In Aia Post-Grant Proceedings, Mary R. Henninger, Jill K. Macalpine, Amelia Feulner Baur, Anthony A. Hartmann, Lara C. Kelley, Rebecca M. Mcneill, P. Andrew Riley, Michael A. Stramiello

Buffalo Intellectual Property Law Journal

No abstract provided.

Spotlight On Objective Evidence Of Nonobviousnes In Aia Post-Grant Proceedings, Shing-Yi (Cindy) Cheng, Li Feng, Stacy Lewis, Tom Irving

Buffalo Intellectual Property Law Journal

No abstract provided.

The Wooly-Mammoth In The Room: The Patentability Of Animals Brought Back From Extinction Through Cloning And Genetic Engineering, Miriam Ricanne Swedlow

Washington Journal of Law, Technology & Arts

Advances and success in cloning and genetic engineering may mean passenger pigeons, dodos, gastric-brooding frogs, thylacines, woolly mammoths, and other extinct species will once again grace this planet. As de-extinction becomes a reality, it is uncertain whether these animals are patent eligible. Diamond v. Chakrabarty opened the door to cloning multicellular organisms. Since then, the U.S. Patent Office’s Board of Patent Appeals and Interferences has found “non-naturally occurring, man-made organisms including animals” to be patentable subject matter under 35 U.S.C. § 101. Because the initial case challenging this decision failed on procedural grounds, the underlying legal issue has not been …

Patent Trolls And Preemption, Paul Gugliuzza

Faculty Scholarship

Patent law is usually thought to be the domain of the federal government, not state governments. Yet over half the states have recently passed statutes outlawing unfair or deceptive assertions of patent infringement. The statutes are aimed at fighting so-called patent trolls, particularly those who send letters to users of allegedly infringing technology — as opposed to the manufacturers of that technology — demanding that each user purchase a license for a few thousand dollars or else face an infringement suit. The Federal Circuit, however, has held that state law claims challenging acts of patent enforcement are preempted by the …

The Cost Of Confusion: The Paradox Of Trademarked Pharmaceuticals, Hannah Brennan

Michigan Telecommunications & Technology Law Review

The United States spends nearly $1,000 per person annually on drugs—forty percent more than the next highest spender, Canada, and more than twice the amount France and Germany spend. Although myriad factors contribute to high drug spending in the United States, intellectual property law plays a crucial and well-documented role in inhibiting access to cheaper, generic medications. Yet, for the most part, the discussion of the relationship between intellectual property law and drug spending has centered on patent protection. Recently, however, a few researchers have turned their attention to a different avenue of exclusivity—trademark law. New studies suggest that pharmaceutical …

By Any Other Name: Image Advertising And The Commercial Speech Doctrine In Jordan V. Jewel, Kelly Miller

Loyola of Los Angeles Entertainment Law Review

This Comment focuses on the commercial speech doctrine as applied to modern advertising strategies, specifically, corporate image advertising. It centers on the recent litigation between basketball superstar Michael Jordan and a Chicago-area grocery chain, Jewel-Osco. When Michael Jordan was inducted into the Basketball Hall of Fame, Jewel-Osco was invited to submit a congratulatory ad for a commemorative issue of Sports Illustrated devoted exclusively to Jordan’s career and accomplishments. Because Jordan had spent the bulk of his storied professional basketball career with the Chicago Bulls, the ad seemed a natural fit. Jordan, who did not give permission for his name to …

Contemporary Practice Of The United States Relating To International Law, July 2015, Kristina Daugirdas, Julian Davis Mortenson

Articles

In this section: • Agreement on Iran Nuclear Program Goes into Effect • United States and China Reach Agreement Regarding Economic Espionage and International Cybersecurity Norms • United States Ratifies the International Convention for the Suppression of Acts of Nuclear Terrorism • United States Reaches Agreement with Turkey on Use of Incirlik Air Base for Strikes on ISIL; “Safe Zone” Not Part of the Deal

Content-Based Copyright Denial, Ned Snow

Indiana Law Journal

No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …

Invalidated Patents And Associated Patent Examiners, Shine Tu

Law Faculty Scholarship

This study attempts to determine whether there are common

characteristics between examiners who issue invalidated patents. This

study uses two new patent databases that code for nearly 1.7 million

patents and approximately one thousand patents that were litigated to

a 'final" judgment between 2010 and 2011. This study finds that

approximately one-third of patents that are litigated to final judgment

are found invalid. Most invalidated patents are found in technology

centers 1600, 2600, and 2700, which correspond to biotechnology and

organic chemistry, communications, and computer science, respectively.

Most patents are invalidated on prior art-type novelty and obviousness

grounds. This study …

Set The Statutes Straight: Amending The Lanham Act To Dispel The Confusion Regarding Reverse Confusion, Inna Kaminer

Loyola of Los Angeles Entertainment Law Review

The typical case of alleged trademark infringement, i.e., “forward confusion,” involves a larger and more established “senior user” and a smaller and less powerful “junior user.” The secondary junior user wrongfully uses the first senior user’s mark as its own, and thus benefits from the senior user’s more established goodwill. In ruling on a senior user’s trademark infringement claim, the court will use a set of “likelihood of confusion” factors to determine if consumers are confusing the junior user’s goods for that of the senior. Each circuit’s factors vary, but they are harmonious. The issue that this Note explores is …

What Notice Did, Jessica D. Litman

Law & Economics Working Papers

In the 21st century, copyright protection is automatic. It vests in eligible works the instant that those works are first embodied in a tangible format. Many Americans are unaware of that, believing instead that registration and copyright notice are required to secure a copyright. That impression is understandable. For its first 199 years, United States copyright law required authors to take affirmative steps to obtain copyright protection. The first U.S. copyright statute, enacted by Congress in 1790, required the eligible author of an eligible work to record the title of the work with the clerk of the court in the …

The Dmca Rulemaking Mechanism: Fail Or Safe?, Maryna Koberidze

Washington Journal of Law, Technology & Arts

This Article analyzes seventeen years under the Digital Millennium Copyright Act (“DMCA”) rulemaking mechanism and suggests changes to reinforce its successes while remedying its failures. Part I briefly discusses the legislative history of the rulemaking mechanism and policy justifications for its adoption within the DMCA scheme. Part II reviews legal and evidentiary standards of the rulemaking and recent changes to its administrative procedure. Part III provides an overview of the prior rulemakings and their impact on non-infringing uses, with a particular focus on the “e-book” and “cellphone unlocking” exemptions. Part IV applauds the Breaking Down Barriers to Innovation Act of …