Intellectual Property Law Commons^™

Balancing Mickey Mouse And The Mutant Copyright: To Copyright A Trademark Or To Trademark A Copyright, That Is The Question, Michael A. Forella Iii

Marquette Intellectual Property Law Review

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Determining Patent Worthlesseness For Tax Purposes, Christina Sumer

Marquette Intellectual Property Law Review

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Gene Patents, Drug Prices, And Scientific Research: Unexpected Effects Of Recently Proposed Patent Eligibility Legislation, Charles Duan

Marquette Intellectual Property Law Review

Recently, Congress has considered legislation to amend § 101, a section of the Patent Act that the Supreme Court has held to prohibit patenting of laws of nature, natural phenomena, and abstract ideas. This draft legislation would expand the realm of patent-eligible subject matter, overturning the Court’s precedents along the way. The draft legislation, and movement to change this doctrine of patent law, made substantial headway with a subcommittee of the Senate holding numerous roundtables and hearings on the subject.

This article considers some less-discussed consequences of that draft leg- islative proposal. The legislation likely opens the door to patenting …

American Privacy Law At The Dawn Of A New Decade (And The Ccpa And Covid-19): Overview And Practitioner Critique, Kimberly Dempsey Booher, Martin B. Robins

Marquette Intellectual Property Law Review

No abstract provided.

Tracing The Evolution Of Standards And Standard-Setting Organizations In The Ict Era, Manveen Singh

Marquette Intellectual Property Law Review

No abstract provided.

Confusion, Conflict, And Case Law: Analyzing The Language Of The United States Patent Act And Conflicting Case Law Regarding The Transfer Of Patent Rights In The 21st Century, Lucas C. Logic

Marquette Intellectual Property Law Review

No abstract provided.

A Critical Evaluation Of The Effectiveness And Legitimacy Of Webblocking Injunctions, Mark Hyland

Articles

Relative to the dual criteria of effectiveness and legitimacy, this article evaluates webblocking injunctions in the context of intellectual property law and with a particular focus on the vanguard role played by the English Courts. With regard to the first criterion, it is argued that there is reason to think that webblocking injunctions are viewed by IP owners as well as by legislators and courts as a relatively effective instrument in the protection of IP assets. Moreover, the extension of webblocking orders to trade marks together with their adoption in a number of legal systems, is further evidence that these …

Masthead

UC Law SF Communications and Entertainment Journal

No abstract provided.

Patent Owners Face Unknown Arguments As To Whether Ipr Estoppel Attaches To Physical Products, 19 Uic Rev. Intell. Prop. L. 328 (2020), Christian Karpinski

UIC Review of Intellectual Property Law

When challenging a patent in an inter partes review (“IPR”), petitioners are limited to arguing that the patent is anticipated or obvious based on existing patents and printed publications. According to 35 U.S.C. § 315(e)(1) and (2), a petitioner in an IPR that results in a final written decision (FWD) may not raise in the USPTO or a civil action or an ITC proceeding “any ground that the petitioner raised or reasonably could have raised during that inter partes review.” But, what if a prior art physical product is cumulative of a printed publication raised in an IPR? Courts have …

Blockchain And Smart Contract For Peer-To-Peer Energy Trading Platform: Legal Obstacles And Regulatory Solutions, 19 Uic Rev. Intell. Prop. L. 285 (2020), Joseph Lee, Vere Marie Khan

UIC Review of Intellectual Property Law

This paper discusses the implications of smart contracts in energy trading for the protection of consumer and individual rights. It examines the legal risks and regulatory solutions for a peer-to-peer energy trading platform (P2P-ETP) in creating a sustainable energy ecosystem. Part I discusses the conceptual framework of P2PETP, which enables consumers to become energy ‘producers' and traders. Smart technologies—smart contracts, smart meters, and distributed ledger technology (DLT) platforms, are the main components of this platform. The study examines the legal basis for these components. Part II analyzes the legal uncertainty of the smart contract, such as its enforceability, and the …

Extraterritoriality And The Active Inducement Of Infringement, 19 Uic Rev. Intell. Prop. L. 204 (2020), Robert Stier

UIC Review of Intellectual Property Law

In Merial Ltd. v. Cipla Ltd., the Federal Circuit held that actions taken outside the United States might make a foreign defendant liable for induced infringement of a US patent under § 271(b) of the Patent Act. This article questions whether Merial remains good law after the Supreme Court’s 2018 decision in WesternGECO LLC v. ION Geophysical Corp. There, the Supreme Court held that lost profits from foreign sales were recoverable under § 284 of the Patent Act when they resulted from acts of domestic patent infringement. In reaching that decision, the Court applied the test from RJR Nabisco, Inc. …

Mural Mural On The Wall: Revisiting Fair Use Of Street Art, 19 Uic Rev. Intell. Prop. L. 267 (2020), Madylan Yarc

UIC Review of Intellectual Property Law

Mural mural on the wall, what’s the fairest use of them all? Many corporations have taken advantage of public art to promote their own brand. Corporations commission graffiti advertising campaigns because they create a spectacle that gains traction on social media. The battle rages on between the independent artists who wish to protect the exclusive rights over their art, against the corporations who argue that the public art is fair game and digital advertising is fair use of art. The Eastern Market district of Detroit is home to the Murals in the Market Festival. In January 2018, Mercedes Benz obtained …

Determining The Composition, Joe Bennett, Sean M. O'Connor

Faculty Works

This chapter explores the interpretation of a musical work in the context of changes to songwriters’ creative behaviors, driven by changes in composing technologies. It argues that in the 21st century, a musical work (MW) is fully embodied in a phonorecording, and that single, artificially isolated elements (such as melodic fragments) should be considered de minimis for the purposes of copyright infringement litigation. This view is evidenced by the self-reported creative activities of more than 200 songwriting teams, taken from the popular podcast Song Exploder. Three detailed case studies are provided from this collection, all based on songwriting teams using …

Double Jeopardy: Patents Of Invention As Contracts, Invention Disclosure As Consideration, And Where Oil States Went Wrong, N. Scott Pierce

Fordham Intellectual Property, Media and Entertainment Law Journal

Patents in England were once favors granted by the King with the requirement that the subject matter be practiced, or worked, for the benefit of the public. However, by the late eighteenth century patents were viewed as contracts with the government. Concomitant with this shift, the requirement to practice an invention was replaced by submission of a written specification disclosing to the public how to work the subject matter of the patent. In essence, advancement of the public good by grant of an exclusionary right to practice an invention at royal discretion was substituted with public disclosure as consideration for …

Can An Improved Disclosure Mechanism Moderate Algorithm-Based Software Patentability In The Public Interest?, Vinicius Sala

Cybaris®

No abstract provided.

State Of Dilution: How U.S. Trademark And Anti-Dilution Law Violates The Agreement On Trade-Related Aspects Of Intellectual Property Rights, Sherwet Witherington

American University International Law Review

No abstract provided.

The Tea Rose-Rectanus Doctrine's Good Faith Test, Nashrah Ahmed

American University Business Law Review

No abstract provided.

Interpreting Gobbledygook Under 35 U.S.C. § 101: Does The 2019 Patent Eligibility Guidance Clarify Past Confusion?, Nicole Bruner

American University Business Law Review

No abstract provided.

Are College Football Players Being Promised Big Nfl Bucks And Being Shortchanged In The Classroom And On The Field?, Melanie Navarro

UC Law SF Communications and Entertainment Journal

Football is America’s pastime. Over one hundred million people tuned in to watch this year’s Super Bowl. Sundays during football season are spent in front of a television rooting for our favorite teams. Football has been an integral part of American culture for over 120 years. But in recent years, football has lost yardage. Information regarding the causal link between head injuries on the football field and degenerative brain diseases has come to light. Thousands of former National Football League (“NFL”) players took part in a highly publicized class-action lawsuit against the league. Players alleged that the NFL knew of …

Enemy Of The People: The Ghost Of The F.C.C. Fairness Doctrine In The Age Of Alternative Facts, Ian Klein

UC Law SF Communications and Entertainment Journal

The FCC Fairness Doctrine required that all major broadcasting outlets spend equal time covering both sides of all controversial issues of national importance. The Fairness Doctrine remained the standard for decades before it stopped being enforced during the Reagan administration, and was removed from the Federal Register during the Obama administration. Since the Fairness Doctrine’s disappearance, the perception by conservatives and progressives alike has been that major media outlets display overt biases towards one political affiliation or the other. As it becomes harder to determine real news from “fake news,” Americans’ trust in media is at an all-time low. An …

The Chilling Effect Of Copyright Permissions On Academic Research: The Case Of Communication Researchers, Patricia Aufderheide

Joint PIJIP/TLS Research Paper Series

Communications researchers in the U.S., who routinely analyze copyrighted material, both qualitatively and quantitatively, face challenges from strict copyright. The doctrine of fair use permits some unpermissioned use of copyrighted works. Survey research shows that researchers routinely need access to copyrighted material; that they are often unsure or confused, even unknowing, about fair use; and that this lack of knowledge and/or familiarity leads to both failure to execute and failure to initiate, or “imagination foregone.” Creating a best practices code has improved knowledge but more institutional change is needed for knowledge to inform action.

Transplanting Fair Use Across The Globe: A Case Study Testing The Credibility Of U.S. Opposition, Niva Elkin-Koren, Neil Weinstock Netanel

Joint PIJIP/TLS Research Paper Series

No abstract provided.

Trade Secrets And The Right To Information: A Comparative Analysis Of E.U. And U.S. Approaches To Freedom Of Expression And Whistleblowing, Sharon Sandeen, Ulla-Maija Mylly

Faculty Scholarship

Both the EU Trade Secrets Directive and US trade secret law seek to balance the protection of trade secrets against other values, including freedom of expression, but the EU Trade Secret Directive is more explicit about the need to do so. This article examines EU and US trade secret law through the right to information, a recognized human right under the Universal Declaration of Human Rights and implementing laws and conventions. In particular, it discusses how principles of freedom of expression and whistleblowing should apply in the trade secret context in the EU and U.S.

What Didn't Happen: An Essay In Speculation, Peter Jaszi

Scholarly Articles in Law Reviews & Journals

Most of us held off celebrating the beginning of a renewed slow trickle of works into copyright's public domain until the first seconds of New Year's Day, 2019, but (if it hadn't been so early in the day), we would have been entitled to raise a glass at 4:04 PM on the preceding December 27th, when the last substantive business undertaken in 2018 by either house of Congress was concluded in the Senate. (Like the House, which wrapped up its business at 4:02, the World's Greatest Deliberative Body had convened that day at 4:00.) At that moment, a last-minute push …

Artificial Intelligence Inventions & Patent Disclosure, Tabrez Y. Ebrahim

Faculty Scholarship

Artificial intelligence (“AI”) has attracted significant attention and has imposed challenges for society. Yet surprisingly, scholars have paid little attention to the impediments AI imposes on patent law’s disclosure function from the lenses of theory and policy. Patents are conditioned on inventors describing their inventions, but the inner workings and the use of AI in the inventive process are not properly understood or are largely unknown. The lack of transparency of the parameters of the AI inventive process or the use of AI makes it difficult to enable a future use of AI to achieve the same end state. While …

Traditional Knowledge In Taiwan: A Call For Greater Participation Of Indigenous Peoples In The Global Intellectual Property Marketplace, James M. Cooper

Faculty Scholarship

This Article explores the plight of the Aborigines of Taiwan and the legal protections that exist for their Traditional Knowledge. While Taiwan continues to face international isolation with a diminished number of states recognizing the Republic of China as the seat of China, the island's government has taken limited steps to recognize language, cultural, and economic rights of its Indigenous peoples. International law has not been helpful in protecting Traditional Knowledge, but Taiwan could use its vast economic resources and positive track record in protecting some of these rights to further its goals of international recognition. This Article details the …

Patents, Information, And Innovation, Brenda M. Simon

Faculty Scholarship

Inventors and commercialization partners often rely on patents to facilitate the exchange of sensitive information. Most scholarship in this area has focused on the areas of software and biotechnology. To provide a richer description of the role of patents in the innovative process, this project evaluates the existing literature and sets forth examples drawn from a series of interviews with professionals from the largely-overlooked medical device industry. The limited analysis of the medical device industry has focused on the largest few dozen firms—as publicly-traded entities, a great deal of data about them is readily available. Small medical device companies are …

An Instance Of Open Hardware: A Different Approach To Free And Open Source Hardware Licensing, Timothy Murphy

Articles

As open source software ("OSS") has become more prevalent, and more widely accepted, many different OSS licenses have proliferated to provide different licensing constructs for licensors and licensees. The most popular OSS license is the GNU General Public License ("GPL"), which is protective of author rights and intended to foster an open software community. Because software source code and object code files are primarily protected by copyright, the options for license terms are relatively straightforward and well known. To the extent patent rights become an issue, various additional provisions have been proposed to address that issue in the context of …

Fashion's Destruction Of Unsold Goods: Responsible Solutions For An Environmentally Conscious Future, Ariele Elia

Fordham Intellectual Property, Media and Entertainment Law Journal

Over the past two years, headlines of fast-fashion and luxury brands burning their merchandise have flooded media outlets. While this came as a shock to the general public, it has actually been a standard industry practice for decades. As societal norms are leaning more towards environmentally conscious practices, destroying unsold products is no longer viewed as an acceptable option. Brands are facing increased scrutiny related to their environmental impact—such as the amount of textile waste that ends up in a landfill—and how they address the issue. While the media have criticized brands for these practices, they have not suggested long-term …

An Instance Of Open Hardware: A Different Approach To Free And Open Source Hardware Licensing, Timothy Murphy

Fordham Intellectual Property, Media and Entertainment Law Journal

As open source software (“OSS”) has become more prevalent, and more widely accepted, many different OSS licenses have proliferated to provide different licensing constructs for licensors and licensees. The most popular OSS license is the GNU General Public License (“GPL”), which is protective of author rights and intended to foster an open software community. Because software source code and object code files are primarily protected by copyright, the options for license terms are relatively straightforward and well-known. To the extent patent rights become an issue, various additional provisions have been proposed to address that issue in the context of the …