Intellectual Property Law Commons^™

Ai Patents: A Data Driven Approach, Brian S. Haney

Chicago-Kent Journal of Intellectual Property

While artificial intelligence (AI) research brings challenges, the resulting systems are no accident. In fact, academics, researchers, and industry professionals have been developing AI systems since the early 1900s. AI is a field uniquely positioned at the intersection of several scientific disciplines including computer science, applied mathematics, and neuroscience. The AI design process is meticulous, deliberate, and time-consuming – involving intensive mathematical theory, data processing, and computer programming. All the while, AI’s economic value is accelerating. As such, protecting the intellectual property (IP) springing from this work is a keystone for technology firms acting in competitive markets.

Choosing The Consequences Of Tam And Brunetti, Alfred C. Yen

Chicago-Kent Journal of Intellectual Property

In Matal v. Tam and Iancu v. Brunetti, the Supreme Court did something it has never done before – namely apply strict First Amendment scrutiny to trademark law. This is a big deal. Many have argued, to relatively little effect, that intellectual property laws, like trademarks, raise serious free speech problems. It is therefore significant news for the Court to declare portions of the Lanham Act unconstitutional not once, but twice.

Ranking Parallel Petitions Before The Ptab: A Survey, Monica Grewal, Heather Petruzzi, Wenli Gu Phd

Chicago-Kent Journal of Intellectual Property

To understand the trends in recent ranking practice, this article an-alyzes a subset of ranked parallel petitions that received an institution decision before or on February 20, 2020. Using a search filter in Docket Navigator to locate multiple petitions challenging the same pa-tent, the authors identified 39 occurrences of ranked parallel petitions that challenge the same claims of the same patents, as well as 2 occur-rences of ranked parallel petitions that challenge different claims of the same patent.

Unfettered Discretion: A Closer Look At The Board's Discretion To Deny Institution, Joel D. Sayres, Reid E. Dodge

Chicago-Kent Journal of Intellectual Property

To ensure that the doorway to IPRs was not limitless, Congress de-lineated a specific threshold before a trial could be instituted. That threshold is set forth in 35 U.S.C. § 314(a), which provides that IPR may not be instituted unless the petition “shows that there is a reasonable likelihood that the petitioner would prevail with respect to at least 1 of the claims challenged in the petition.” However, the Board has increas-ingly identified circumstances in which it will not institute IPR, even where a petitioner satisfies this statutory threshold. Indeed, the Board has seemingly adopted the view that it has …

Expert Discovery Protections: Comparing District Courts With The Ptab, Blaine M. Hackman, Vi T. Tran, Katherine A. Helm

Chicago-Kent Journal of Intellectual Property

Expert witness testimony can be critical in patent litigation in all forums. In Patent Trial and Appeal Board (“PTAB”) proceedings, particularly inter partes review (“IPR”) and post-grant review (“PGR”), expert testimony through declarations and depositions plays a central role in both challenging and defending patents. In district courts, live expert testimony is key to proving infringement and invalidity. Accordingly, the legal protections governing the disclosure of expert testimony in discovery in both forums are carefully proscribed, but with notable distinctions.

Post-Ait Review Of Real Party In Interest Decisions, Stephanie M. Brooker, Robert Breetz, Matthew Johnson, Thomas Ritchie

Chicago-Kent Journal of Intellectual Property

Throughout the Patent Trial and Appeal Board’s (“PTAB”) history, patent owners have tried to leverage a petitioner’s alleged failure to name all real parties-in-interest (“RPIs”) as a way to achieve denial of an inter partes review (“IPR”) petition or trial termination. The effectiveness of those efforts has ebbed and flowed. Initially, some PTAB panels viewed naming of RPIs as a jurisdictional requirement, concluding that RPI-naming errors were not fixable after the 35 U.S.C. § 315(b) one-year bar. Petitioners could lose their petition filing date based on RPI missteps, resulting in then untimely petitions. Later decisions backed away from that hardline …

Renegade Riders And The Marks They Love: Can The Government Tear That Patch Right Off Your Leather Jacket?, Angela M. Nieves

Chicago-Kent Journal of Intellectual Property

A collective membership mark is a type of non-commercial trademark used to identify and associate with something or someone. In February 2019, a California district court ruled that the government could not forcibly seize from the Mongols Motorcycle Club their prized collective membership marks, seemingly halting a ten-year legal tug of war. The court held that forfeiture of these marks was not only unconstitutional, it was illogical.

This Comment explains how and why expressive marks like the Mongols’ should not be automatically deemed off limits to the government. It proposes a trademark-specific doctrine to help courts draw a constitutional line …

The Eleventh Auer: The Effect Of Kisor V. Wilkie On Rulemaking And Adjudication At The United States Patent And Trademark Office, Andrew Schneider, Jonathan Stroud

Chicago-Kent Journal of Intellectual Property

Courts have long deferred to an agency’s interpretation of an ambiguous rule or statute, in light of the agency’s relevant technical expertise. But some judges prefer that Article III courts review everything; and deferring often involves relying on an agency’s interpretation of a genuinely ambiguous statute—the oft-discussed Chevron deference doctrine. This Article analyzes the more nuanced Auer deference, where a court defers to an agency’s later interpretation of its own ambiguous rule or regulation. Recently, the Supreme Court took and decided Kisor v. Wilkie, which dramatically modified the Auer doctrine. While Kisor appealed a claim for veteran’s benefits that implicated …

Patents, Information, And Innovation, Brenda M. Simon

Brooklyn Law Review

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 …

Predicting Administrative Patent Challenges, Talia Bar, Brendan Costello

Minnesota Journal of Law, Science & Technology

No abstract provided.

The Problem Of Modern Monetization Of Memes: How Copyright Law Can Give Protection To Meme Creators, Mark Marciszewski

Pace Intellectual Property, Sports & Entertainment Law Forum

Some legal questions answered in this article on the horizon for the courts and lawyers is how should courts apply copyright law to popular media made by small scale creators and shared on the internet, otherwise known as "memes."

Part II of this article will focus on validity of potential copyright protection in internet memes. It will start by describing the increased monetization surrounding memes and how this monetization calls for greater interest for meme creators to protect their work. It will then describe the merits of individual copyright interests in internet memes.

Part III of this article will focus …

Good Initiative, Bad Judgement: The Unintended Consequences Of Title Ix's Proportionality Standard On Ncaa Men's Gymnastics And The Transgender Athlete, Jeffrey Shearer

Pace Intellectual Property, Sports & Entertainment Law Forum

Title IX fails to provide the tools or guidelines necessary to equalize opportunities for all student athletes in the collegiate setting despite the government’s continuous effort to explain the law. This failure is because judicial precedent has largely developed around the binary proportionality test of compliance. Title IX was originally intended to equalize educational opportunities for male and female students in order to remedy past discrimination in our society. However, the application of Title IX has frequently created fewer opportunities in athletics due to the unintended relationship between the proportionality standard and the social phenomenon that is the commercialization of …

America's Newest Boogeyman For Deviant Teen Behavior: Violent Video Games And The First Amendment, Joseph C. Alfe, Grant D. Talabay

Pace Intellectual Property, Sports & Entertainment Law Forum

Are violent video games harming America’s youth? Is it possible a series of interconnected circuit boards can influence children (or even adults) to become, themselves, violent? If so, how should our society-- and government-- respond?

To properly answer this last query, violent video games must be viewed through the lens of the First Amendment. Simply put: do games depicting grotesque acts of depravity so profound as to negatively influence the psyche warrant the full constitutional protections ordinarily guaranteed under the mantle of free speech and expression? Are these guarantees without limit? If not, how far may the government go in …

Copyright Reform: Imagining More Balanced Copyright Laws, Michelle M. Wu

Georgetown Law Faculty Publications and Other Works

Earlier chapters of this book provide a history of copyright and libraries in the United States, a review of outdated language in the existing copyright code, and a discussion of actions by both copyright owners and the public to rebalance copyright outside of legislation. This chapter simply imagines what copyright could be if we disregard the known political and legal obstacles. It starts with no constraints, which one might argue is both impractical and foolish. Why spend time discussing what could be when treaties, self-interest, and powerful industry lobbies stand in the way?

The answer is simply that environments can …

Biomedcentral (Bmc) 2019 – 2020, Anqi Shi, Heather Morrison

Copyright, Fair Use, Scholarly Communication, etc.

Key points

• Open access commercial publishing pioneer BMC is now wholly owned by a private company with a portfolio including lines of business that derive revenue from journal subscriptions, book sales, and textbook sales and rentals
• Two former BMC fully OA journals, listed in DOAJ from 2014 – 2018 as having CC-BY licenses, are now hybrid and listed on the Springer website and have disappeared from the BMC website
• 67% of BMC journals with APCs in 2019 and 2020 increased in price and 11% decreased in price.
• Journals with price increases had a higher average APC in 2019, i.e. more …

Creative Destruction: Copyright's Fair Use Doctrine And The Moral Right Of Integrity, Cathay Y. N. Smith

Pepperdine Law Review

This Paper explores the role of copyright’s fair use doctrine as a limit on the moral right of integrity. The moral right of integrity gives an author the right to prevent any distortion, modification, or mutilation of their work that prejudices their honor or reputation. Actions that have been found to violate an author’s moral right of integrity include, for instance, altering a mural by painting clothing over nude figures, selling separated panels of a single work of art, and displaying sculptures with holiday ribbons. At the same time, copyright’s fair use doctrine allows follow-on creators to transform original works …

Don't Go Breakin' My (3d Bioprinted) Heart: Dissecting Patentability And Regulation Of 3d Bioprinted Organs, Anna Marie Whitacre

Georgia Journal of Law & Technology

In light of the growing realism of 3D bioprinted organs, legal issues arising from these concerns can easily bleed into our society. This bleeding demands exploration. Should 3D bioprinted organs be regulated as natural organs or as medical devices? Are 3D bioprinted organs patentable? What happens if a 3D bioprinted organ is subject to a successful patent infringement suit? Does the recipient face a Repo Men fate?

The beginning of this note dissects the scientific underpinnings of 3D bioprinted organs. Part II explores statutory authority and controlling, or otherwise persuasive, case law that pertains to subject-matter patentability. Current rights associated …

Feeling Cute, Might [Have To] Delete Later: Defending Against The Modern Day Copyright Troll, Austin Joseph

Georgia Journal of Law & Technology

The age-old clash between celebrities and paparazzi has reached a new high. With the trend moving towards the monetization of social media, evolution in mobile camera technology, and lighting-fast sharing capabilities, the need for paparazzi decreases with each year. Because paparazzi want to remain desirable, the infamous conduct of “copyright trolling” is sweeping the intellectual property scene. “Copyright trolling” is the act of searching social media and suing multiple celebrities when the celebrity post a photo of themselves without first paying the licensing fee. Within this year alone, multiple celebrities like Rebel Wilson, Ariana Grande, and Liam Hemsworth have been …

Shockingly Evil: The Cruel Invasive Appropriation And Exploitation Of Victims' Rights Of Publicity In The True Crime Genre, Ashton Williams

Georgia Journal of Law & Technology

America's obsession with the true crime genre has evoked an explosion in volume and variety of recreations of the country's most prolific crimes. The never-ending re-enactments constantly barrage the victims and family members of those who suffered at the hands of the killers. The nightmare of the crimes they already endured never cease, as victims are forced to relive their worst torments via movies, television shows, and podcasts discussing the crimes. Producers and directors are currently free to appropriate and capitalize off of individuals' images without so much as a consultation. From dramatic depictions by actors to docuseries evaluations of …

"You Got Too Much Dip On Your Chip!" How Stagnant Copyright Law Is Stifling Creativity, Taylor Bussey

Georgia Journal of Law & Technology

Over time, our concept of what qualifies as an author has changed–specifically with the dominance of the internet. Tangentially, our idea of what it means to be a joint author has changed. What once would have required physical proximity now can be accomplished via the internet in a matter of seconds. Authors from all around the globe can collaborate. Geographic limitations present virtually no constraint on the number of individuals that can contribute to a work. Human creativity, however, has remained the same. When creating, authors naturally draw on their human experience. Without tailoring modern copyright law to modern trends …

The Economic Burdens Of Life: Trade Secrecy And The Insulin Pricing Crisis In The United States, Emily Hanson

Georgia Journal of Law & Technology

Approximately one in every ten Americans lives with diabetes, a condition that inhibits the body’s ability to regulate blood sugar. The majority of those with diabetes rely on insulin injections to control the condition and avoid the dire health consequences that can quickly result from insufficient insulin. The price of insulin has risen 700% in the past two decades, with burdensome if not disastrous consequences for individual patients and for public health more generally. Federal law provides a pathway for manufacturers of follow-on pharmaceuticals, including insulin, to obtain abbreviated approval from the FDA without repeating costly clinical trials by showing …

The Principles Of Esports Engagement: A Universal Code Of Conduct, Yen-Shyang Tseng

Georgia Journal of Law & Technology

Section I of this article provides a brief background of esports and the ESA. Section II states the four principles of esports engagement announced by the ESA. Section III applies these four principles by reviewing specific problems that have plagued the video game and esports industries, such as toxicity (especially towards women and other minorities), swatting, cheating, and other malicious behavior. This article concludes by discussing implementation of a universal code of conduct in esports based on the principles of esports engagement.

On Equipoise, Knowledge, And Speculation: A Unified Theory Of Pleading Under The Defend Trade Secrets Act -- Jurisdiction, Identification, Misappropriation, And Inevitable Disclosure, William Lynch Schaller

Georgia Journal of Law & Technology

No abstract provided.

Table Of Contents

Georgia Journal of Law & Technology

No abstract provided.

Searches Of The Person: A New Approach To Electronic Device Searches At Canadian Customs, Justin Doll

Canadian Journal of Law and Technology

What goes through your mind at customs? As you wait in that folded line, edging closer to a row of enclosed booths manned by uniformed officers, surrounded by security cameras and warning signs? Perhaps you’re trying to act naturally, then wondering if it shows? Perhaps you’re mentally recalculating the amount you’ve scribbled onto your customs declaration? Or perhaps you’re exhausted from your flight, maybe nursing a bit of a hangover, not thinking about much at all? When you finally get to the front of the line, how do you expect your conversation with the customs officer to go?

According to …

Defective Patent Deference, Tejas N. Narechania

Washington Law Review

The Supreme Court’s implicit deference to the Office of the Solicitor General in patent cases is well-documented: What the Solicitor General requests, the Solicitor General typically receives. But we know far less about how the Solicitor General arrives at these preferred policy positions, or why the Solicitor General comes to advocate for some outcomes over others. This is problematic. In practically every other corner of the administrative state, an agency earns substantial deference to its views only where robust procedural protections attend to the policymaking process, where the agency’s outcome reflects its substantive expertise, and where the agency may, through …

U.S.-U.K. Executive Agreement: Case Study Of Incidental Collection Of Data Under The Cloud Act, Eddie B. Kim

Washington Journal of Law, Technology & Arts

In March 2018, Congress passed the Clarifying Lawful Overseas Use of Data Act, also known as the CLOUD Act, in order to expedite the process of cross-border data transfers for the purposes of criminal investigations. The U.S. government entered into its first Executive Agreement, the main tool to achieve the goals of the statute, with the United Kingdom in October 2019. While the CLOUD Act requires the U.S. Attorney General to consider whether the foreign government counterpart has a certain level of robust data privacy laws, the relevant laws of the United Kingdom have generally been questioned numerous times for …

Kenya’S Intellectual Property Bill, 2020, And Its Shortcomings In Adopting All Lawful Trips Public Health Flexibilities, Brook K. Baker

Joint PIJIP/TLS Research Paper Series

Given the importance of access to medicines to human rights and well-being in Kenya, it is appropriate to analyze whether Kenya has currently incorporated the allowed public health flexibilities to the greatest extent possible in its draft Intellectual Property Bill, 2020. This analysis will focus on the patent, utility model, and enforcement measures only as they are the ones directly relevant to access to medicines and other health technologies. The analysis starts with the premise that Kenya wishes to avoid granting unwarranted patents on unworthy inventions, especially with respect to medicines and other health technologies. In particular, the assumption is …

Masthead

Washington Journal of Law, Technology & Arts

No abstract provided.

Table Of Contents

Washington Journal of Law, Technology & Arts

No abstract provided.