Intellectual Property Law Commons^™

Making The List: What Does It Take To Make A Patient List A Trade Secret?, 18 J. Marshall Rev. Intell. Prop. L. 83 (2018), Sara Ghantous

UIC Review of Intellectual Property Law

What exactly makes a patient list a trade secret? This question has been a topic of heated debate for the last thirty years. It turns out that there is no right answer to this question. Long story short: it depends. The enumerated factors in the Uniform Trade Secrets Act (UTSA) lack specificity, and the courts fan to clarify how to meet the UTSA’s ambiguous standards. Because there is no clear approach to determine whether a patient list enjoys trade secret protection, there is no way for physicians to know the proper measures to take in gathering, maintaining, and protecting patient …

Insta-Fringement: What Is A Fair Use On Social Media?, 18 J. Marshall Rev. Intell. Prop. L. 102 (2018), Caroline E. Kim

UIC Review of Intellectual Property Law

The phenomena of the Internet reinforced the need for well-defined intellectual property rights. In turn, the enactment of the General Data Protection Regulation emphasized the importance of social media and privacy. However, the problem remains that the law has not yet fully embraced the relationship between many technological advancements and social media. The widespread use of social media illustrates that contemporary copyright law must address what constitutes “shareable content.”

This article examines what social media platforms can do in order to provide a clearer definition of what constitutes a “fair-use” on their platforms. A data controller such as Instagram must …

Resale Of Digital Works Under Copyright Laws: A Legal And Economic Analysis, 18 J. Marshall Rev. Intell. Prop. L. 123 (2018), Muhammad Masum Billah

UIC Review of Intellectual Property Law

Through the first sale doctrine, copyright laws around the world establish for an owner of the copy of a copyrighted work the right to resell, lend, donate, and, in some cases, even to rent the copy. Under the doctrine, the copyright holder loses any control over the future distribution of a copy of the work after the sale of that copy. The purchaser of the copy is free to treat it like any other property she possesses. She can transfer it to anyone else through a resale or donation. The doctrine is part of the balance copyright law strikes between …

Unconstitutional Application Of 35 U.S.C. §101 By The U.S. Supreme Court, 18 J. Marshall Rev. Intell. Prop. L. 144 (2018), Sherry Knowles, Anthony Prosser

UIC Review of Intellectual Property Law

“A or B” is inconsistent with “A not B.” This describes why the application of 35 U.S.C. § 101 by the U.S. Supreme Court is inconsistent with the U.S. Constitution, and thus unconstitutional. This article tracks the legislative history of patent eligibility from 1790 to 2011, and the parallel but inconsistent U.S. Supreme Court case law during this period. In following its own case law, the Court has shown extraordinary judicial activism, has penciled out two words of the federal statute (“or discovers”), and has penciled a word out of the U.S. Constitution (“discoveries”).

You Can't Always Get What You Want? A Comparative Analysis Of The Legal Means To Oppose The Use Of Campaign Music, 18 J. Marshall Rev. Intell. Prop. L. 169 (2018), Stefan Michel

UIC Review of Intellectual Property Law

The conflict between politicians and musicians over the use of songs as campaign music is a recurring issue in almost every election cycle. Due to its energizing and unifying force, music can be an efficient instrument in political campaigning. However, artists feel aggrieved as the use of their music might invite the assumption that they are somehow endorsing the candidate. After giving a brief overview of the history of campaign music and the qualities that make it so attractive for campaigning, this piece will analyze the chances a musician stands in the jurisdictions of the U.S., the UK and Germany. …

The Safe Harbor Of 35 U.S.C. § 121: Judicial Deviation From Congressional Intent Is Not Necessary To Uphold 35 U.S.C. § 101, 18 J. Marshall Rev. Intell. Prop. L. 205 (2018), Jeanette Braun

UIC Review of Intellectual Property Law

35 U.S.C. § 101 allows one patent per invention. Congress recognized that patent applications may disclose more than one invention and in 1952, enacted 35 U.S.C. § 120 and 121 to allow parent patent applications to birth child applications. The rights of patent blood lines have been understood and relied on for decades. In 2015, the Federal Circuit changed the rights of patent blood lines and ruled that the order in which patent applications were birthed destroyed 35 U.S.C. § 121 protection of divisional applications. This article analyzes the congressional intent of 35 U.S.C. § 121, the rights of patent …

Returning The Photographer's Autonomy: The Integration Of Blockchain Technology Into Copyright Registration, 18 J. Marshall Rev. Intell. Prop. L. 221 (2018), Claire Demos

UIC Review of Intellectual Property Law

The advent of the Internet, combined with advances in accessible digital technology, have altered both the modern photographer’s methodologies and the public’s relationship to images online. Subsequent legislation has not evolved at a comparable pace, leaving copyright owners at a significant disadvantage when it comes to protecting their work in the digital environment. This comment specifically looks at the copyright registration process and subsequent legislation such as the Digital Millennium Copyright Act, which has failed to adequately address the copyright owner’s insurmountable burden when it comes to detecting infringement online. Continuing developments such as the integration of blockchain-based technology into …

The Landscape Of Modern Patent Appeals, Jason Rantaned

American University Law Review

No abstract provided.

2017 Patent Law Decisions Of The Federal Circuit, Laura C. Whitworth

American University Law Review

No abstract provided.

Dr. Seuss, The Juice And Fair Use Revisited: Two Decades Of Parody And Satire In Copyright Law, Tyler T. Ochoa

Faculty Publications

This essay will summarize some of the salient features and arguments made in the original article. It will also analyze copyright infringement cases in the last 20 years applying the fair use doctrine to parody and satire.

Poke´Mon Go: Emerging Liability Arising From Virtual Trespass For Augmented Reality Applications, Travis Alley

Texas A&M Journal of Property Law

This Article focuses on various types of trespass and the challenges that augmented reality technology presents to the parties involved. Section II lays out a broad overview of augmented reality, its history, and the concept of Pok ´emon Go. Section III addresses evolution trespass law in the United States and how it is applied in cases of physical and electronic intrusions. Section III also discusses nuisance briefly, as it can often interrelate to trespass theories. Section IV then analyzes how courts might interpret trespass laws for augmented reality applications and the forms of liability each party may face. The solution …

Happy Birthday Siri! Dialing In Legal Ethics For Artificial Intelligence, Smartphones, And Real Time Lawyers, Jan L. Jacobowitz

Texas A&M Journal of Property Law

This Article explores the history of AI and the advantages and potential dangers of using AI to assist with legal research, administrative functions, contract drafting, case evaluation, and litigation strategy. This Article also provides an overview of security vulnerabilities attorneys should be aware of and the precautions that they should employ when using their smartphones (in both their personal and professional lives) in order to adequately protect confidential information. Finally, this Article concludes that lawyers who fail to explore the ethical use of AI in their practices may find themselves at a professional disadvantage and in dire ethical straits.

The …

How The United States Stopped Being A Pirate Nation And Learned To Love International Copyright, John A. Rothchild

Law Faculty Research Publications

No abstract provided.

U.S. Supreme Court Surveys: 2016 Term. Matal V. Tam: Free Speech Meets "Disparaging" Trademarks In The Supreme Court, Niki Kuckes

Roger Williams University Law Review

No abstract provided.

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

Utah Law Faculty Scholarship

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 …

The 'Jus' Of Use: Trademarks In Transition, Bita Amani, Carys Craig

Articles & Book Chapters

Changes to Canada's Trade-marks Act will soon permit, for the first time, the registration and enforcement of unused trademarks. Far from a mere legal technicality or practical exigency, this shift fundamentally alters the nature of trademarks and the trademark system. Traditionally, it is the use of trade indicia in the marketplace that determines title and acquisition of trademark rights; use that defines the scope and duration of rights; and use that gives rise to claims of infringement. By virtue of the "Jus of use", the trademark system has remained, over time, reasonably true to its rationale, encouraging and rewarding honest …

Lookalike Logos: Is A High School's Use Of A Logo Or Insignia Similar To That Of A University A Violation Under The Lanham Act, Keegan Girodo

Marquette Sports Law Review

None

Online Piracy Of Live Sports Telecasts In India, Seemantani Sharma

Marquette Sports Law Review

None

Index: Sports Law In Law Reviews And Journals, Jordan Lysiak

Marquette Sports Law Review

None

Registration Is Fundamental, Nicole Pottinger, Brian L. Frye

IP Theory

Under the Copyright Act, copyright owners can file infringement actions only if registration of their copyright claim with the Copyright Office “has been made” or “has been refused.” The United States Supreme Court recently granted certiorari in Fourth Estate v. Wall-Street.com, in order to decide whether registration is “made” when a claimant files a registration application or when the Copyright Office registers the claim.

This article argues that the Court should hold that registration occurs when the Copyright Office registers the claim, in order to ensure that federal courts can benefit from the expertise of the Copyright Office. The Copyright …

Copyright For Creators: Bridging Law And Practice, Carla-Mae Crookendale, Hillary Miller, Sue Robinson

VCU Libraries Faculty and Staff Publications

Everyone is a publisher, a maker, or a creator in the digital age, and understanding copyright is a foundational skill. Artists, designers, and arts scholars need acute awareness of the legal landscape and fair use. To help meet this need, Virginia Commonwealth University (VCU) Libraries, in concert with the VCU School of the Arts, created a series of programs on the nuances of copyright for artists, designers, and art scholars.

Internet Safe Harbors And The Transformation Of Copyright Law, Matthew Sag

Notre Dame Law Review

This Article explores the potential displacement of substantive copyright law in the increasingly important online environment. In 1998, Congress enacted a system of intermediary safe harbors as part of the Digital Millennium Copyright Act (DMCA). The internet safe harbors and the associated system of notice-and-takedown fundamentally changed the incentives of platforms, users, and rightsholders in relation to claims of copyright infringement. These different incentives interact to yield a functional balance of copyright online that diverges markedly from the experience of copyright law in traditional media environments. More recently, private agreements between rightsholders and large commercial internet platforms have been made …

Valuing Residual Goodwill After Trademark Forfeiture, Jake Linford

Notre Dame Law Review

Trademarks contribute to an efficient market by helping consumers find products they like from sources they trust. This information-transmission function of trademarks can be upset if the law fails to reflect both how trademark owners communicate through marks and how consumers understand and use them. But many of trademark law’s forfeiture mechanisms (the ways a trademark can lose protection) ignore or discount consumer perception. This failure threatens not only to increase consumer search costs and consumer confusion, but also to distort markets.

For example, trademark protection may be forfeited when the mark owner interrupts or abandons use, even though consumers …

Intellectual Property Channeling For Digital Works, Lucas S. Osborn

Scholarly Works

Market economies are based on free competition, which can include copying. Yet intellectual property protection in the United States prohibits copying in certain circumstances to incentivize innovation and creativity. New breeds of digital works are challenging our historical application of intellectual property law. These include certain categories of software programs as well as digital manufacturing files. These new works look deceptively like works from a previous era and thus, courts might languorously treat them as they have older works. This would be a mistake. This Article analyzes these works in terms of existing intellectual property doctrine and constructs a normative …

"Anything Goes": Regulating The Conduct Of Money-Bundling Broadway Co-Producers, David Manella

Kernochan Center for Law, Media, and the Arts

This Note will analyze industry concerns relating to the practice of granting above-the-title producer credit to individuals solely for contributing or bundling a share of a production’s capitalization, specifically by asking whether moneybundling Broadway co-producers are acting as unregistered broker-dealers in violation of applicable Security Exchange Commission (“SEC”) registration requirements. In Section I of this Note, I provide a history of Broadway producing models, so as to understand how today’s dominant model developed. In Section II, I unpack that model by describing the structure of theatrical investment vehicles and identifying the different types of Broadway producers. In Sections III and …

Intellectual Property And Culture, Lucie Guibault

Articles, Book Chapters, & Popular Press

This paper takes a critical look at the interaction between intellectual property law and culture using three examples, namely: 1) the need to preserve and disseminate culture, through the recognition of cultural heritage institutions' vital role in society; 2) the need to maintain culture from depreciation, through the safeguard of a strong public domain; and 3) the need to let culture evolve, through the protection of Traditional Cultural Expressions (TCE's). This brief study shows that, although IP rights can be said to afford useful protection to objects of culture – taken in the narrow sense of ‘culture’, they can also …

Owning The Right To Open Up Access To Scientific Publications, Lucie Guibault

Articles, Book Chapters, & Popular Press

Whether the researchers themselves, rather than the institution they work for, are at all in a position to implement OA principles actually depends on the initial allocation of rights on their works. Whereas most European Union Member States have legislation that provides that the copyright owner is the natural person who created the work, the copyright laws of a number European countries, including those of the Netherlands and the United Kingdom, establish a presumption, according to which the copyright of works made in the course of employment belongs initially to the employer, which in this case would be the university. …

Copyright As Market Prospect, Shyamkrishna Balganesh

Faculty Scholarship

For many decades now, copyright jurisprudence and scholarship have looked to the common law of torts – principally trespass and negligence – in order to understand copyright’s structure of entitlement and liability. This focus on property – and harm-based torts – has altogether ignored an area of tort law with significant import for our understanding of copyright law: tortious interference with a prospective economic advantage. This Article develops an understanding of copyright law using tortious interference with a prospect as a homology. Tortious interference with a prospect allows a plaintiff to recover when a defendant’s volitional actions interfere with a …

Intellectual Property As Seen By Barbie And Mickey: The Reciprocal Relationship Of Copyright And Trademark Law, Jane C. Ginsburg

Faculty Scholarship

Some years ago, caselaw on trademark parodies and similar unauthorized “speech” uses of trademarks could have led one to conclude that the law had no sense of humor. Over time, however, courts in the US and elsewhere began to leaven likelihood of confusion analyses with healthy skepticism regarding consumers’ alleged inability to perceive a joke. These decisions did not always expressly cite the copyright fair use defense, but the considerations underlying the copyright doctrine seemed to inform trademark analysis as well. The spillover effect may indeed have been inevitable, as several of the cases in which the fair use defense …

Patent Infringement As Trespass, Adam J. Macleod

Faculty 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, or infringement seems rather hard.

These problems reflect a conceptual misunderstanding. When infringement is …