Intellectual Property Law Commons^™

Algorithmic Adjudication And Constitutional Ai—The Promise Of A Better Ai Decision Making Future?, April G. Dawson

SMU Science and Technology Law Review

Algorithmic governance is when algorithms, often in the form of AI, make decisions, predict outcomes, and manage resources in various aspects of governance. This approach can be applied in areas like public administration, legal systems, policy-making, and urban planning. Algorithmic adjudication involves using AI to assist in or decide legal disputes. This often includes the analysis of legal documents, case precedents, and relevant laws to provide recommendations or even final decisions. The AI models typically used in these emerging decision-making systems use traditionally trained AI systems on large data sets so the system can render a decision or prediction based …

Liability Rules For Automated Vehicles: Definitions And Details, William H. Widen, Philip Koopman

SMU Science and Technology Law Review

This paper explains how the law ought to assign liability for automated vehicle accidents by providing an example of a proposed statute. We advocate for the creation of the legal fiction of a “Computer Driver,” which can have negligence liability, anytime a court or jury determines that the Computer Driver’s behavior failed to imitate or exceed the level of care we would expect of an attentive and unimpaired Human Driver in similar circumstances. We then use this concept to explain how to determine contributory negligence and comparative fault when control of a vehicle is transferred from a Computer Driver to …

Generative Ai In The Attorney-Client Relationship: An Exercise In Critical Revision And Client Management, Michael L. Smith

SMU Science and Technology Law Review

Discussions of generative AI in legal practice and education often assert that this technology will lead to a sea change in legal writing, research, and revision. While some of the more breathless proclamations deserve skepticism, there’s little doubt that this technology may generate new forms of headaches for those in the legal field—particularly once it’s in the hands of clients or opposing counsel who wish to use this technology to save the time, money, and effort required for complex legal tasks.

This essay proposes an exercise template for law students that illustrates how generative AI technology may be misused or …

Solar Eclipses And The Law, Chad Marzen, Michael Conklin

SMU Science and Technology Law Review

This Article provides a comprehensive overview of the legal issues that appear with a solar eclipse. These include the sale of defective or fake eclipse glasses, vehicle accidents, liability claims for personal injuries against school districts, as well as questions involving the freedom of religion. Finally, this Article concludes by considering the juxtaposition between a perennial event such as a solar eclipse and the evolving nature of law.

Tailoring Biometric Innovation To Privacy Law In The Retail Industry, Bailey White

SMU Science and Technology Law Review

Biometric data technology is trending in retail. Retailers utilize biometric data to improve their bottom line through virtual try-on technology (VTOT), contactless payment methods, fingerprint scanners, and more—albeit at potentially steep prices. Many types of biometric technology used in retail fall under strict U.S. state privacy laws, exposing businesses to serious legal and financial consequences. This Comment provides an analysis of the current state of biometric data privacy law in the U.S., focusing on Illinois’ Biometric Information Privacy Act (BIPA), California’s Consumer Privacy Act (CCPA), Privacy Rights Act (CPRA), and more. This Comment also identifies proposed legislation, relevant case law, …

Ethics Of Innovation: A Framework For Responsible Innovation Governance, Nicole Morris

SMU Science and Technology Law Review

Over the past several years, startups that once seemed destined for greatness have failed or collapsed because of fraud committed by the founders. Most notable are the Theranos and FTX business collapses, which culminated in the convictions of two infamous entrepreneurs, Elizabeth Holmes and Sam Bankman-Fired, respectively. Startup innovators are not alone when it comes to morally dubious behavior. According to Retraction Watch, nearly 5000 papers published in science & engineering journals were retracted in 2022. Research misconduct allegations eventually led to the resignation of Stanford University President Marc Tessier-Lavigne in July 2023. The research scandal at Stanford received lots …

The Game-Changer: Legal Issues Surrounding Wearable Technology In Sports, Jack Vande Berg

SMU Science and Technology Law Review

Athletes and teams are always seeking to gain a competitive edge, and the emergence of wearable technology has provided them with biometric data that provides new insights into performance. The market for wearable technology has been growing at a rapid pace in recent years and is projected to continue on an upward trajectory through the end of the decade. Governing bodies of sport at a professional and amateur level have adapted regulations for the use of this new technology and the data it produces. This article provides an overview of these current regulations, and then discusses three pressing legal issues. …

Neither Here Nor There: Redefining “Presence” For A Virtual Criminal Justice System, Brandon M. Draper

SMU Science and Technology Law Review

The coronavirus (“COVID-19”) pandemic dramatically altered how the criminal justice system operated by adding virtual options to traditionally in-person proceedings. The impact of the criminal justice system’s failure to include virtual jury trials among these options was shocking, but not surprising: jury trial rates across the country dropped close to zero percent and several in-custody defendants died from COVID-19 before a jury could determine their guilt or innocence. After the pandemic, criminal courts across the country made many of these virtual options permanent, but only for non-evidentiary proceedings and other non-jury trial settings. The failure to include criminal jury trials …

Unpatenting Product Hops, Michael S. Sinha

All Faculty Scholarship

On July 9, 2021, President Joseph R. Biden signed Executive Order 14036 (“Promoting Competition in the American Economy”), which directed the U.S. Food and Drug Administration (FDA) and the U.S. Patent and Trademark Office (USPTO) to collaborate on new approaches to increasing competition and lowering prices in the pharmaceutical marketplace. In response, the USPTO outlined several new initiatives, among them an intent to improve the robustness and reliability of issued patents.

A major impetus for the Executive Order was the pervasive nature of pharmaceutical product hopping, which occurs when manufacturers introduce new follow-on versions of lucrative pharmaceutical products to the …

Talking Scents: Copyrightability Of Fragrance & Intellectual Property Protection In The Perfume Industry, Margaret M. Donnelly

Law Student Publications

Designer fashion brands are well-known for their aggressive brand protection techniques and unwavering commitment to protecting the exclusivity of their products. After all, it is this exclusivity that drives demand for luxury products in the first place. Additionally, a new trend of duplicate or “dupe” products that are more accessible, noncounterfeited replicas of high-end goods presents a new problem for these luxury brands. Despite high-end brands’ best efforts, the luxury goods industry is still plagued by counterfeiting and piracy issues, as well as the emerging threat of replicated dupe products that drive luxury sales down. From notorious counterfeit marketplaces like …

Disharmony In Patent Law: A Comparative Study Of Patent Eligibility Of Biological Subject Matters Between China And The United States, Xiongying Tu

Cybaris®

Disharmonies in intellectual property rights have led countries, like China and the U.S., to implement patent laws tailored to their unique culture, values, and goals while complying with international treaties. China's exclusion of treatment and diagnosis methods from patent protection prioritizes healthcare accessibility, whereas the U.S.'s allowance of patentability fosters medical innovation. Similarly, China's exclusion of animal and plant patentability aligns with cultural and agricultural values, emphasizing resource accessibility and food security. Protecting genetic resources poses challenges, with China aligning its patent law proactively with the CBD principles and the U.S. prioritizing unrestricted access. China's approach to human stem cell …

Legislative Report: Protecting Lawful Streaming Act Of 2020, Melissa Rezzag

Cybaris®

No abstract provided.

Arbitration As A Dispute Resolution Mechanism For Cross-Border Intellectual Propery Disputes, Kat Gritsenko

Cybaris®

No abstract provided.

From Global To Local: Abitron And The Altered Landscape Of U.S. Trademark Law, Alex Furcich

Cybaris®

No abstract provided.

Masthead

Cybaris®

No abstract provided.

Applying Current Copyright Law To Artificial Intelligence Image Generators In The Context Of Anderson V. Stability Ai, Ltd., Matthew Lindberg

Cybaris®

No abstract provided.

Pocket Castles And Custom Skin: Championing Transparency In The Monetization Of User-Generated Content In Video Games, Jakob Stokes

Cybaris®

No abstract provided.

Masthead

Cybaris®

No abstract provided.

The Generative Ai Pirate? The Intersection Of Copyrights And Generative Ai In Literary Works, Brianne M. Culliton

Cybaris®

No abstract provided.

The Ungraceful Grace Period: Defining 35 U.S.C. § 102(B)'S Grace Period Exceptions Post-Helsinn, Adam Burstain

Cybaris®

No abstract provided.

African Americans And Women In The Us Ip Economy, Arneda K. Perkins

Cybaris®

No abstract provided.

Tiktok, Copyright, And Justice, Brittany Morris

Journal of Law, Technology, & the Internet

In 2019, the Copyright Office refused registration for two "dances" that were highly recognizable and traceable to specific individuals. The "Carlton" was refused because it is a "simple routine that is not registrable as a choreographic work." The "Milly Rock" was also refused registration on the same grounds. Epic Games was selling the dances as an add-on to its wildly popular video game, Fortnite, which primarily derives profits from microtransactions. The app TikTok is experiencing an analogous problem. In July 2021, Black Creators were on strike from the app.1 They alleged that the original dances they created for the app …

The Notes You Don’T Play: An Empirical Analysis Of The Ninth Circuit’S Filtration Problem In Music Copyright Cases, Robert D. Capodilupo

Fordham Intellectual Property, Media and Entertainment Law Journal

The Ninth Circuit’s approach to music copyright cases has failed to provide artists with a clear landscape of the boundaries of copyright protection for creative works. Perhaps most disconcerting is the doctrine’s lack of rigid guidance as to which elements of a composition are protected by copyright. Since the court’s controversial ruling in Williams v. Gaye, which showcased the court’s failure to differentiate between protectable and unprotectable musical elements, the literature has taken a greater interest in analyzing the effects of this muddied doctrine. In their 2019 article, Christopher Jon Sprigman and Samantha Fink Hedrick theorize how the doctrine of …

Forming A More Perfect Union With Blockchains And Nfts: Why The United States Should Embrace An E-Government, Alexandria Labaro

Fordham Intellectual Property, Media and Entertainment Law Journal

This Note analyzes blockchain and non-fungible token (“NFT”) technology in the government, emphasizing the benefits of technological integration for improved data security and streamlined bureaucratic processes. It follows the growing popularity of “e-government” practices across the globe and considers factors associated with integrating blockchain and NFT technology in U.S. governmental procedures.

Misappropriation Of Drawing Power (Free-Riding) In Trademarks, Tony Bortolin

Fordham Intellectual Property, Media and Entertainment Law Journal

This Article advances the cause of action regarding the Misappropriation of Drawing Power (“free-riding”). It is a form of anti-dilution, along the lines of European Union laws regarding parasitism, and is analogous to other laws such as the protection of personality rights. It could also help settle long-standing debates in the trademark field, such as those regarding dilution by blurring, initial-interest confusion, comparative advertising, and whether and how to protect marks beyond the geographical scope of the plaintiff’s sales (such as protecting U.S. marks used internationally).

Business Empire To Patent Umpire: Amazon And The Ascent Of Platform Patent Adjudication, Shih-Wei Chao

Fordham Intellectual Property, Media and Entertainment Law Journal

A trend in patent law is mounting, one which this Article refers to as Platform Patent Adjudication. Amazon’s Patent Evaluation Express (“APEX”) now allows patent owners and sellers to resolve infringement disputes without using courts, and even without traditional alternative dispute resolution mechanisms like arbitration or mediation, but instead entirely within the platform setting. Amazon touts, and many practitioners agree, that its procedure is much less expensive and much quicker than litigating in court. But why is Amazon doing this? And why have other platforms not done this before? This Article takes a step back to examine the conditions and …

Foreign Intelligence Surveillance Act Section 702: The Good, The Bad, And A Proposal To Make It Less Ugly, Kevin Burns

Fordham Intellectual Property, Media and Entertainment Law Journal

Section 702 of the Foreign Intelligence Surveillance Act (“FISA”) has been controversial since its inception. Created to allow intelligence collection against targeted foreign persons, electronic surveillance under Section 702 casts a wide net, often capturing communications sent to or by United States persons. Opponents point to the invasion of privacy such collection presents, and to the well-documented abuse and biased use of Section 702 data against U.S. citizens. This Note argues that despite this, Section 702 is a vital tool in the fight against terrorism and drug trafficking and the case against Section 702 is weaker than it appears. This …

A Glance Not Taken—When Claim Interpretation Ignores The Best Evidence, David R. Soucy, Esq.

Fordham Intellectual Property, Media and Entertainment Law Journal

A little-known but longstanding rule of patent law is that the article “a” means one or more than one when recited within a patent claim. But the commonly understood meaning of “a” is a numerosity of just one. The case of Salazar v. AT&T Mobility is about the misapplication of the patent law general rule of indefinite articles to find that the term “a microprocessor” means just one microchip. That fundamental tenet states that “a” means one or more than one, unless a patentee disavowed that meaning as evidenced by: (1) other language of the claims (i.e., dependent …

Good Readers, Good Writers, And Ai: Tool, Collaborator, Author?, Katherine Jung

Fordham Intellectual Property, Media and Entertainment Law Journal

Artificial Intelligence (“AI”) systems have revolutionized the world of creative writing. Beyond providing simple grammar or spelling assistance, the most advanced of these systems can now play a collaborative role in the writing process, increasing productivity while pushing content in new and surprising directions. AI-generated creativity raises compelling questions in the context of copyright law, which has long been predicated on the assumption of human authorship. The capacity of AI to one day generate writing at a level of mastery on par with human beings complicates traditional notions of creativity, the protection of which the entire copy …

Algorithmic Dead Hands: What Is Dead May Never Die, Zachary L. Catanzaro

Fordham Intellectual Property, Media and Entertainment Law Journal

Can we transcend death? By harnessing large language models and the invasive data harvesting of surveillance capitalism, AI systems now offer testators unprecedented posthumous control over property and heirs. These algorithmic ‘dead hands’ promise a seductive form of digital immortality, but if left unchecked, they threaten to spawn a novel breed of perpetuities. This technology risks birthing a digitized techno-feudal Necrocracy marked by inalienable property, extreme wealth consolidation, and the dead’s perpetual dominion over the living.

While modern reforms have weakened the common law’s traditional hostility to dead hand control, these reforms failed to anticipate technologically embodied intentionality persisting beyond …