Intellectual Property Law Commons^™

Eliminating Cash Bail In Washington State—Amending Criminal Rule 3.2, Simran Kaur

Seattle University Law Review

This Note discusses the following three parts. Part I provides an overview of the cash bail system, its history, and its contemporary use in Washington state. Part II presents the effects of bail on pretrial release, analyzing low-income and racial inequalities and the adverse impacts it can have on the accused. Part III focuses on solutions and alternatives to the cash bail system, using other states as case studies.

Selective Patronage, Omari Scott Simmons

Seattle University Law Review

Contemporary academic corporate governance narratives have a blind spot. They focus on institutions, rules, regulations, processes, procedures, intermediaries, and market forces. Yet, missing in this narrative, is the impact of corporate leadership. Ignoring the “black box” of corporate leadership, particularly individual actors, renders an incomplete descriptive assessment as well as potential miscalculations. The examination of key historical figures and their corporate activism provides an important lens through which to identify potential challenges and opportunities related to the contemporary ESG movement.

Generally, this essay examines corporate leadership’s potential to address socio-political issues through the prism of Civil Rights Movement activism. Specifically, …

Promoting Corporate Diversity: The Uncertain Role Of Institutional Investors, Jill Fisch

Seattle University Law Review

Two developments are having an impact on corporate decisions. One is the increased engagement by institutional intermediaries and a shift in the focus of that engagement from corporate governance to environmental and social issues. The other is a heightened societal awareness of diversity, equity, and inclusion (DEI) issues, particularly the importance of diversity in corporate leadership. This Article considers the intersection between the two. It describes how institutional investors have focused their attention on increasing diversity in corporate leadership, the potential motivations for that focus, and the impact of that focus, to date. It highlights the tensions that result from …

Reframing The Dei Case, Veronica Root Martinez

Seattle University Law Review

Corporate firms have long expressed their support for the idea that their organizations should become more demographically diverse while creating a culture that is inclusive of all members of the firm. These firms have traditionally, however, not been successful at improving demographic diversity and true inclusion within the upper echelons of their organizations. The status quo seemed unlikely to move, but expectations for corporate firms were upended after the #MeToo Movement of 2017 and 2018, which was followed by corporate support of the #BlackLivesMatter Movement in 2020. These two social movements, while distinct in many ways, forced firms to rethink …

Policing For Profit: A Constitutional Analysis Of Washington State’S Civil Forfeiture Laws, Julia Doherty

Seattle University Law Review

The summer of 2020 reignited a conversation about the relationship between race and policing in the United States. While many have taken the opportunity to scrutinize the racially discriminate components of our criminal justice system, comparable aspects of civil law must be equally scrutinized. A particular area of concern pertains to racially biased policing and the concept of “policing for profits” with Black, Indigenous, and people of color communities (BIPOC), which is accomplished mainly through civil asset forfeiture at a state and federal level.

America’S Hidden Citizens: The Untold Stories Of The Unconscionable Deportations Of Its International Adoptees, Halley Cody

Seattle University Law Review

This Note addresses how the U.S. should rectify the harms it has perpetrated on non-citizen adoptees by amending the current deportation statutes to prevent their deportation. Part I addresses the history of adoption in the U.S. and related effects on immigration law. Part II highlights the stories of Adam Crapser and Philip Clay, who were adopted by American families who failed to naturalize them as minors, and who were subsequently deported after they sustained criminal records. Part III examines the policy goals behind deportation as a consequence of criminal convictions, as well as remedies instituted to prevent unwarranted deportation and …

Inadequate Privacy: The Necessity Of Hipaa Reform In A Post-Dobbs World, Katherine Robertson

Seattle University Law Review

Part I of this Comment will provide an overview of HIPAA and the legal impacts of Dobbs. Part II will discuss the anticipatory response to the impacts of Dobbs on PHI by addressing the response from (1) the states, (2) the Biden Administration, and (3) the medical field. Part III will discuss the loopholes that exist in HIPAA and further address the potential impacts on individuals and the medical field if reform does not occur. Finally, Part IV will argue that the reform of HIPAA is the best avenue for protecting PHI related to reproductive healthcare.

On The Appeal Of Drug Patent Challenges, Charles Duan

American University Law Review

Administrative patent challenge proceedings, the most prominent form of which is inter partes review, have attracted much controversy. In particular, the pharmaceutical industry and its supporters have criticized the proceedings as unfairly biased toward canceling valuable drug patents. Yet there has been little study of the real-world, practical impact of these administrative proceedings on drug patents or pharmaceutical markets.

This Article reviews the universe of administrative challenges on drug patents that have proceeded through appeal to the Federal Circuit. The majority of patents challenged this way are deemed unpatentable at both the agency and appellate levels, and that administrative cancellation …

Raising The Threshold For Trademark Infringement To Protect Free Expression, Christine Haight Farley, Lisa P. Ramsey

American University Law Review

The First Amendment right to free speech limits the scope of rights in trademark law. Congress and the courts have devised various defenses and common law doctrines to ensure that protected speech is exempted from trademark infringement liability. These defensive trademark doctrines, however, are narrow and often vary by jurisdiction. One current example is the speechprotective test first articulated by the Second Circuit in Rogers v. Grimaldi, expanded by the Ninth Circuit, and recently restricted by the Supreme Court in Jack Daniel’s Properties v. VIP Products to uses of another’s mark within an expressive work that do not designate the …

Keeping It Real: Property Analogies For Graffiti Infringement, Shelby Pickar-Dennis

University of Colorado Law Review

No abstract provided.

Trademark's Grip Over Sustainability, Daniel R. Cahoy

University of Colorado Law Review

Entrepreneurs and larger firms are waking up to the fact that there is a viable market for recycled, repaired, and even upcycled goods. There is also an increasing desire on the consumer end for more sustainable products as well as measures to reduce landfill and other product disposal harms to the environment. Although some legal barriers to this new market are being actively debated, other barriers have taken a back seat and seem primed to surge only when increased business activity exposes the liability. This is the case with trademark law, which has the potential to substantially deter the small-firm …

Intellectual Property, Antitrust, And Access To Essential Technologies, Joy Y. Xiang

Lewis & Clark Law Review

This Article explores whether and how we may leverage antitrust law to calibrate the exploitation of intellectual property (“IP”) rights—e.g., IP licensing—to facilitate needed access to essential technologies. The Article’s motivation is to help developing countries find an effective way to address their complaints that owners of IP-protected technologies refuse to license needed technologies or charge unfairly high prices. The Article concludes that leveraging antitrust law unilaterally to address these typical challenges developing countries experience in accessing essential technologies may be more effective and efficient than attempting to change the IP regime. The IP regime is governed by negotiated and …

Data Property, Christina Mulligan, James Grimmelmann

Faculty Scholarship

No abstract provided.

Vested Patents And Equal Justice,, Adam J. Macleod

Faculty Articles

In a time of renewed interest in equal justice, the vested patent right may be timely again. Vested patent rights helped marginalized Americans to secure equal justice earlier in American history. And they helped to make sense of the law. Vested patent rights can perform those tasks again today.

The concept of vested rights render patent law coherent. And it explains patent law 's interactions with other areas of law, such as property, administrative, and constitutional law. The vested rights doctrine also can serve the requirements of equal justice, as it has several times in American history. Vested rights secure …

Health Monitoring From Home: Legal Considerations Of Wearable Technology In Telemedicine, Polina Declue

SMU Science and Technology Law Review

The COVID-19 pandemic created the necessity to access medical care from one’s home, giving rise to a new standard of healthcare through “telemedicine.” However, although efficient in many ways, the most significant limitation of telemedicine was the inability of doctors to monitor their patients’ conditions remotely. Wearable devices, also known as “wearables,” provide a way to bridge the gap. Over the last five years, wearables grew to be one of the fastest-growing industries in healthcare, seeing over $5 billion in growth. However, this also came with a myriad of legal concerns that may prevent wearables from being utilized efficiently. This …

Hub-And-Spoke Conspiracies: Can Big Data And Pricing Algorithms Form The Rim?, Bradley C. Weber

SMU Science and Technology Law Review

A hub-and-spoke conspiracy is a metaphor used to describe an antitrust cartel that includes a firm at one level of a supply chain—such as a buyer or supplier—who acts like the “hub” of a wheel. Vertical agreements up or down the supply chain act as the “spokes,” and a horizontal agreement among the spokes acts as the “rim” of the wheel. Courts have considered hub-and-spoke conspiracies for more than eighty years, and there is large body of case law that pertains to the evidence that is necessary for proving this type of antitrust conspiracy.

With the rise of modern digital …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Employee Monitoring: As Technology Advances Yet The Electronic Communications Privacy Act Stays In The Past, Isabela Possino

SMU Science and Technology Law Review

Since the Electronic Communications Privacy Act of 1986 was enacted, the United States has endured an evolution of technology. While progressive at its inception, the ECPA has since been met with a tumultuous response from scholars, courts, and others trying to understand its purpose and application regarding privacy rights and the monitoring of communications. Specifically, since the COVID-19 pandemic, the ECPA has remained at the forefront of debate with respect to employee monitoring and surveillance practices. This article provides an overview of the ECPA and explains why today’s technological advancements have surpassed the protections afforded by the Act, leaving employees …

Houston Security Camera Ordinance: Reasonable Safety Measure Or Orwellian Surveillance, Clint Nuckolls

SMU Science and Technology Law Review

A new ordinance went into effect in Houston, Texas in July 2022, which looks to leverage technology and require certain businesses to install surveillance cameras at their own cost and turn footage over to the police on demand without a warrant. The ordinance specifically requires bars, nightclubs, convenience stores, sexually oriented businesses, and game rooms to install surveillance cameras, with accompanying lighting at all places where customers are permitted, keep the cameras running at all times, even when the business is closed, and store the footage for at least thirty days, all at the expense of the business owners. The …

Preventing Intimate Image Abuse Via Privacy-Preserving Credentials, Janet Zhang, Steven M. Bellovin

SMU Science and Technology Law Review

The problem of non-consensual pornography (“NCP”), sometimes known as intimate image abuse or revenge porn, is well known. Despite its distribution being illegal in most states, it remains a serious problem, if only because it is often difficult to prove who uploaded the pictures. Furthermore, the Federal statute commonly known as Section 230 generally protects Internet sites, such as PornHub, from liability for content created by their users; only the users are liable, not the sites.

One obvious countermeasure would be to require Internet sites to strongly authenticate their users, but this is not an easy problem to solve. Furthermore, …

Revolutionizing Justice: Unleashing The Power Of Artificial Intelligence, Samuel D. Hodge Jr.

SMU Science and Technology Law Review

The practice of law is changing, and most lawyers are unprepared for this metamorphosis. This statement is not an exaggeration but the acknowledgment that artificial intelligence (“AI”) has altered the way lawyers do business. Instead of having a “battle of forms,” attorneys will now be confronted with the “battle of computers.” Linking artificial intelligence and the law, however, is a natural progression. Both operate in similar fashions: each examines and applies “historical examples in order to infer rules to apply to new situations.”

While many attorneys are unsure how to integrate this new technology into their practices, they already use …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Cryptocurrency’S Clash With Bankruptcy: Insolvent Crypto Exchange Companies Create Difficulties For Courts & Customers, Mary Taylor Stanberry

SMU Science and Technology Law Review

This comment explores the novelty of cryptocurrency, its legal ambiguity in the realms of securities, property, and tax law, and the difficulties arising from insolvent crypto-exchange company’s estates within the context of the United States Bankruptcy Code. For the purposes of this comment, individuals who invested in crypto-exchange platforms will be referred to as “customers” rather than “investors” to avoid potential confusion in the context of 11 U.S.C. § 507 of the Bankruptcy Code. Customers who invested with insolvent crypto-exchange companies are concerned about being last in line for repayment of their investments based on traditional bankruptcy creditor priority. These …

Texas’S Water Future: Legal, Business, Environmental, And Regulatory Concerns, Robert Royce

SMU Science and Technology Law Review

Around the world freshwater is increasingly scarce, and Texas is no different. Texas continuously operates at a shortage, where freshwater supply cannot meet demand. Projections show that this deficit will increase over the next decade, which would cause billions of dollars in losses for the Texas economy. But Texas is in a unique position to correct its water problems and take corrective measures to avoid such losses. Innovations around hydraulic fracturing in the oil and gas industry, namely recyclable “produced water” and the burgeoning “water midstream” sector will play an important role in remediating Texas’ freshwater scarcity concern. Furthermore, the …

Antitrust Accountability Delayed: State Antitrust Enforcement And Multidistrict Litigation, Roger P. Alford

SMU Science and Technology Law Review

State Attorneys General play a crucial role in the enforcement of antitrust laws. Defendants have successfully delayed state enforcement proceedings by centralizing them with private lawsuits in multidistrict litigation. A new venue law has foreclosed that delay tactic, placing State Attorneys General on equal footing with federal antitrust enforcers in deciding where, when, and how to prosecute antitrust cases.

Tiktok’S Fall From Grace: How Growing Security Concerns In Chinese Technology Affect U.S. Courts And Presidential Successors, Madeline Cartwright

SMU Science and Technology Law Review

In recent years, the United States government has warned that China may use Chinese companies as a vehicle for infiltrating American data security. The U.S. first acted on this warning in 2017 when it effectively banned Huawei—one of the world’s largest telecom companies—from the U.S. market. Then-president Donald Trump subsequently turned the controversy to the popular social media app, TikTok, in an attempted ban over alleged privacy issues. Personal data collection and the legal implications behind trying to ban China-linked apps is an increasingly controversial topic in American politics. This article assesses the lawsuits following these groundbreaking governmental movements, including …

Data For Sale: Navigating The Role Of Data Brokers And Reproductive Health Information In A Post-Dobbs World, Heather Chong

SMU Science and Technology Law Review

Data privacy is a growing concern in our fast-paced society, as it has become increasingly necessary to relay and retain information digitally. However, the United States trails behind its counterparts in terms of the strength of existing data protection legislation. Unlike the European Union and its General Data Protection Regulation (“GDPR”) law, the United States has no similar comprehensive data protection act. This lack of legislation has led to the exploitation of people’s private data and allowed companies to utilize loopholes in current laws to access sensitive health information. Data brokers have been collecting and reselling consumers’ personal information, including …

Unilaterally Altering The Bargain: Trips, Section 107a, And The Regulatory Review Exception Under Indian Patent Law, Eashan Ghosh, Afzal B. Khan

Indian Journal of International Economic Law

In 2003, Section 107A of the Patents Act wrote a regulatory review exception into Indian law. Its beholden purpose is to enable patent-protected pharmaceutical products to be brought to Indian markets quicker and in large numbers. Emboldened by a WTO decision brake-testing a similar Canadian statute, Indian pharmaceutical manufacturers have consistently claimed Section 107A benefits from domestic courts. Lately, the economic trail of these benefits has grown to implicate entities abroad. Pushback to this trend from patentees has duly arrived. It has culminated in a stack of Delhi High Court decisions in Bayer v. Union of India. Bayer writes three …

“Hits & Writs, Take Two”: Revising The Laws Of De Minimis Music Sampling, Jeffrey Prystowsky

Roger Williams University Law Review

No abstract provided.

Equitable Ecosystem: A Two-Pronged Approach To Equity In Artificial Intelligence, Rangita De Silva De Alwis, Amani Carter, Govind Nagubandi

Michigan Technology Law Review

Lawmakers, technologists, and thought leaders are facing a once-in-a-generation opportunity to build equity into the digital infrastructure that will power our lives; we argue for a two-pronged approach to seize that opportunity. Artificial Intelligence (AI) is poised to radically transform our world, but we are already seeing evidence that theoretical concerns about potential bias are now being borne out in the market. To change this trajectory and ensure that development teams are focused explicitly on creating equitable AI, we argue that we need to shift the flow of investment dollars. Venture Capital (VC) firms have an outsized impact in determining …