Intellectual Property Law Commons^™

A Statutory Patent Reversion Period May End The Debate On Employee Inventions, 51 J. Marshall L. Rev. 675 (2018), Yucheng Wang

UIC Law Review

No abstract provided.

Patent Infringement As Trespass, Adam J. Macleod

Scholarly Articles

The now-conventional account of patent law holds that infringement is a strict liability offense, meaning that intent is not an element of an infringement claim. This account heightens the apparent injustice of patent law’s special knowledge problem, that as ambiguous descriptions of intangible resources, patent claims do not sufficiently make potential infringers aware of a patentee’s right to exclude. Particularly in the age of so-called “patent thickets,” clusters of patents of variable merit which are indistinguishable from each other and from prior art, strict liability for infringement seems rather hard. These problems reflect a conceptual misunderstanding. When infringement is understood …

From Satirical To Satyrical: When Is A Joke Actionable?, Sandra Davidson Scott

UC Law SF Communications and Entertainment Journal

This Article was selected from Volume 13, Number 2 of the Hastings Communications and Entertainment Law Journal. In light of President Donald Trump’s threats to change the current libel law, this Article was selected to address topics including Jerry Falwell’s unsuccessful suit against Hustler magazine, the public figure/private person distinction, commercial appropriation for name and likeness, and the opinion/fact distinction. The Article concludes that courts show more sensitivity to commercial than personal injury and fail to appreciate that satire can damage reputation by raising suspicions that statements are based on facts that are merely stretched.

Moral Rights For Musical Compositions In The United States:It’S Not Just Fair, It’S An Obligation, Becca E. Davis

UC Law SF Communications and Entertainment Journal

This paper seeks to establish that the United States has a quasi-obligation to enact comprehensive moral rights legislation to remain compliant with the minimum protection standards set forth by the Berne Convention of 1886. In order to alleviate the anticipated economic and societal concerns stemming from this idea, this paper presents musical compositions as the initial work of authorship to receive moral rights, gradually easing the United States’ transition into full compliance with the Berne Convention. Part I of this paper will cover a brief history of music law in the United States, focusing on how the exclusive rights granted …

Music Videos: The Gray Area In First Amendment Protected Speech And The Resulting Trademark Consequences, Lindsey Gold

Cardozo Law Review de•novo

This Note argues for a federal classification of music videos as noncommercial, artistic speech under the First Amendment. As an artistic expression of a singer, music videos are no longer the promotional mini-movies they once were; they are now utilized widely by artists to express their artistic preferences—including the communication of social, political, and cultural doctrine.

Reining In A 'Renegade' Court: Tc Heartland And The Eastern District Of Texas, Jonas Anderson

Scholarly Articles in Law Reviews & Journals

In TC Heartland v. Kraft Foods Group Brands, the Supreme Court tightened the venue requirement for patent cases, making it more difficult for a plaintiff to demonstrate that a district court has venue over a defendant. Many commentators, however, view TC Heartland as merely a “reshuffling” of the district courts that receive patent cases. Whereas before the case, a large percentage of patent cases were filed in the Eastern District of Texas, now, after TC Heartland, various other U.S. district courts (principally, the District of Delaware) have experienced an increase in patent infringement filings. Some commentators are unconvinced that this …

Redefining Trade Secrets In North Carolina, Christopher A. Moore

Campbell Law Review

North Carolina has a trade secrets problem, and it resides at the most elementary part of the doctrine: the definition. In the North Carolina Trade Secrets Protection Act, the general assembly established an elemental, two-prong test for identifying a trade secret. Courts adjudicating trade secrets cases, however, have strayed from this definition, instead applying a six-factor balancing test that common law courts used before enactment of statutory trade secret definitions. This bifurcated development has not only created an inconsistent jurisprudence-it has also cultivated fundamental problems in the North Carolina legal system. Namely, North Carolina courts have infringed on the province …

Creative Commons: An Explainer, Kincaid C. Brown

Law Librarian Scholarship

Copyright protection attaches automatically to original works you create, whether a poem, photograph, painting, song, video, or essay. Copyright limits what others can do with your creative work and protects your original work from, for example, being compiled or reused and sold for profit. If you hold the copyright—and didn’t, say, create the original work in an employment context where it may be subject to being a work for hire—you may want to allow others to use your work for particular purposes. You could individually negotiate a license granting rights to each person, which would undoubtedly take more and more …

Public Fora Purpose: Analyzing Viewpoint Discrimination On The President’S Twitter Account, James M. Lopiano

Fordham Intellectual Property, Media and Entertainment Law Journal

Today, protectable speech takes many forms in many spaces. This Note is about the spaces. This Note discusses whether President Donald J. Trump’s personal Twitter account functions as a public forum, and if so, whether blocking constituents from said account amounts to viewpoint discrimination—a First Amendment freedom of speech violation. Part I introduces the core legal devices and doctrines that have developed in freedom of speech jurisprudence relating to issues of public fora. Part II analyzes whether social media generally serves as public fora, whether the President’s personal Twitter account is a public forum, and whether his recent habit of …

Making The Ftc ☺: An Approach To Material Connections Disclosures In The Emoji Age, Christina Sauerborn

Fordham Intellectual Property, Media and Entertainment Law Journal

In examining the rise of influencer marketing and emoji’s concurrent surge in popularity, it naturally follows that emoji should be incorporated into the FTC’s required disclosures for sponsored posts across social media platforms. While current disclosure methods the FTC recommends are easily jumbled or lost in other text, using emoji to disclose material connections would streamline disclosure requirements, leveraging an already-popular method of communication to better reach consumers. This Note proposes that the FTC adopts an emoji as a preferred method of disclosure for influencer marketing on social media. Part I discusses the rise of influencer marketing, the FTC and …

A Bridge Between Copyright And Patent Law: Towards A Modern-Day Reapplication Of The Semiconductor Chip Protection Act, Timothy T. Hsieh

Fordham Intellectual Property, Media and Entertainment Law Journal

This Paper analyzes the history of the Semiconductor Chip Protection Act (SCPA), 17 U.S.C. §§ 901–914, and asks why the statute is so seldom used in intellectual property litigation. Afterwards, this Paper makes the argument that the SCPA should be used more in intellectual property litigation, perhaps in tandem with patent litigation, and can be a viable form of protection for semiconductor micro-fabrication companies or integrated circuit design companies engaged in pioneering innovations within the cutting-edge field of semiconductor technology.

Group Defamation, Power, And A New Test For Determining Plaintiff Eligibility, Jeffrey Greenwood

Fordham Intellectual Property, Media and Entertainment Law Journal

In the fall of 2014, Rolling Stone Magazine published an article describing the rape of a woman at a University of Virginia fraternity house. The story turned out to be false, and members of the fraternity sued for defamation. The suit raises an interesting question: under what circumstances may anonymous individual members of the fraternity recover? This Note describes the case, related common and constitutional law, as well as differences in group defamation doctrine across jurisdictions. After detailing problems with the existing paradigm, the Note proposes a new method for performing the analysis.

A View Of Copyright From The Digital Ground, Andres Sawicki

Articles

No abstract provided.

The Untimely Death Of The On-Sale Bar To Patentability, Daniel J. Kim

University of Baltimore Law Review

No abstract provided.

Bridges Ii: The Law–Stem Alliance & Next Generation Innovation, Daryl Lim

Faculty Scholarly Works

No abstract provided.

Ai & Ip Innovation & Creativity In An Age Of Accelerated Change, Daryl Lim

Faculty Scholarly Works

From a glimmer in the eye of a Victorian woman ahead of her time, AI has become a cornerstone of innovation that “will be the defining technology of our time.” Around 2016, the convergence of computing power, funding, data, and open-source platforms tipped us into an AIdriven 4IR. AI can make a difference in accelerating disruptive innovation by bringing a data-driven approach to invention and creation. To do so, the law must embrace change and innovation as an imperative in a journey towards an ever-shifting horizon. In the creative arts, the work for hire doctrine provides a pragmatic legal vehicle …

The Supreme Court And The Federal Circuit Turn Patent Infringement Venue Jurisprudence Upside Down, Robert Tapparo

American University Business Law Review

No abstract provided.

Bremaining In Vogue: The Impact Of Brexit On The Fashion Industry, Natalie Cuadros

American University Business Law Review

No abstract provided.

Transparency And Fairness In Machine Learning Applications, Jim Shook, Robyn Smith, Alex Antonio

Texas A&M Journal of Property Law

Businesses and consumers increasingly use artificial intelligence (“AI”)— and specifically machine learning (“ML”) applications—in their daily work. ML is often used as a tool to help people perform their jobs more efficiently, but increasingly it is becoming a technology that may eventually replace humans in performing certain functions. An AI recently beat humans in a reading comprehension test, and there is an ongoing race to replace human drivers with self-driving cars and trucks. Tomorrow there is the potential for much more—as AI is even learning to build its own AI.

As the use of AI technologies continues to expand, and …

Ethics Of Using Artificial Intelligence To Augment Drafting Legal Documents, David Hricik, Asya-Lorrene S. Morgan, Kyle H. Williams

Texas A&M Journal of Property Law

This article focuses on the second step in the due diligence process. While it addresses the question of competency, it focuses more on the further steps a lawyer must take to ensure that the use of the service as part of the representation of a client is consistent with the lawyer’s other ethical obligations. While it is important to emphasize that competency requires that the lawyer must be able to assess whether the work product is comparable to what a human would produce, competency is of course a fact-depending inquiry: whether a will is competently drafted turns on the standard …

Bridges Ii: The Law–Stem Alliance & Next Generation Innovation, 112 Nw. U. L. Rev. Online 147 (2018), Daryl Lim

UIC Law Open Access Faculty Scholarship

No abstract provided.

Music Modernization And The Labyrinth Of Streaming, Mary Lafrance

Scholarly Works

The shift from record sales to music streaming has revolutionized the music industry. The federal copyright regime, which is rooted in a system of economic rewards based largely on sales, has been slow to adapt. This has impaired the ability of copyright law to channel appropriate royalties to songwriters, music publishers, and recording artists when the streaming of their works displaces record sales. The Orrin G. Hatch-Bob Goodlatte Music Modernization Act of 2018 addresses some of the most significant flaws in the current system. At the same time, it creates significant ambiguities and leaves some existing issues unresolved.

Territorialization Of The Internet Domain Name System, Marketa Trimble

Scholarly Works

A territorialization of the internet – the linking of the internet to physical geography – is a growing trend. Internet users have become accustomed to the conveniences of localized advertising, have enjoyed location-based services, and have witnessed an increasing use of geolocation and geoblocking tools by service and content providers who – for various reasons – either allow or block access to internet content based on users’ physical locations. This article analyzes whether, and if so how, the territorialization trend has affected the internet Domain Name System (“DNS”). As a hallmark of cyberspace governance that aimed to be detached from …

Temporary Restraining Orders To Enforce Intellectual Property Rights At Trade Shows: An Empirical Study, Marketa Trimble

Scholarly Works

Infringements of intellectual property (IP) rights by exhibitors at trade shows (also called trade fairs or exhibitions), such as infringements committed through exhibitions of or offers to sell infringing products, can be extremely damaging to IP right owners because of the wide exposure that trade shows provide for infringing IP; the promotion of the infringing IP and the contacts made by infringers at trade shows can facilitate further infringements after a trade show that can be very difficult for IP right owners to prevent. IP right owners therefore seek to obtain emergency injunctive relief to stop trade show infringements immediately—if …

The Reemergence Of State Anti-Patent Law, Camilla A. Hrdy

University of Colorado Law Review

The majority of states have now passed laws prohibiting bad faith assertions of patent infringement. These laws are heralded as a new tool to protect small businesses and consumers from harassment by so-called patent trolls. But state anti-patent laws-laws that weaken patents or make them substantially more difficult to sell or enforce-are not a new phenomenon. In the late nineteenth century, states passed a variety of regulations to prevent fraud by patentees who aggressively marketed fake or low-value patents. However, courts initially found the laws were unconstitutional under the Intellectual Property Clause, which gives Congress power to "secur[e]" inventors' "exclusive …

Top Tens In 2017: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn

Suffolk University Law School Faculty Works

The Supreme Court loosened the grip of patentees on their products, holding that contractual restrictions on patented product are ineffective to preserve patent rights. The Court also loosened the grip of the Eastern District of Texas on patent cases, announcing a narrower standard that will send more cases to Delaware. The Federal Circuit cases piled up on applying the Alice standard to filter nonpatentable abstract ideas from patentable inventions. Meanwhile, even as the constitutionality of the Patent Trial and Appeals Board pends before the Supreme Court, hundreds of PTAB decisions on the validity of patents move onward to the Federal …

Table Of Contents

Catholic University Journal of Law and Technology

No abstract provided.

Monitoring Behavior: Universities, Nonprofits, Patents, And Litigation, Michael S. Mireles, Teo Firpo

McGeorge School of Law Scholarly Articles

This paper examines the confluence of two important issues concerning patent law. The two issues are the merits of the debate concerning the supposed “patent troll” crisis and the increased patenting and licensing of university and other nonprofit inventions, including the litigation of those patents.

First, there is a debate in the literature concerning the presence and scope of the problem concerning so-called “patent trolls.” To some, supposed “patent troll” behavior is ordinary litigation behavior, and to others, it points to problems with the patent litigation system. Indeed, some may argue that the benefits of “patent trolls” may outweigh the …

The Puzzle In Financing With Trademark Collateral, Xuan-Thao Nguyen, Erik Hille

Articles

If trademarks are important corporate assets, do banks and nonbanks lend against trademarks? Or do lenders accept trademark collateral merely as part of a blanket lien? Do banks and nonbanks treat trademarks differently than patents in lending, including venture lending? This first empirical study will attempt to answer these questions. We extract and analyze security interest filings in trademarks and patents against the backdrop of secured transactions law and banking regulations. Based on the data, it seems banks and nonbanks have an aversion for trademark collateral and, by practice, treat most trademarks as idle assets. We also argue that the …

Sovereign Patent Funds, Xuan-Thao Nguyen

Articles

No abstract provided.