Intellectual Property Law Commons^™

A Program To Improve The Efficiency And Quality Of Patent Examination, N. Hylton, Keith, Lynn Richards, Madisyn

Santa Clara High Technology Law Journal

In this article we suggest three novel amendments to U.S. patent law to increase efficiency and decrease costs. We first contend that while the assertion of invalid patents is detrimental because of anticompetitive effects, such competition concerns should place no duty upon applicants to disclose prior art at the outset. Additionally, we argue that to avoid resource waste, the USPTO should outsource prior art searches for certain applications, as in Japan. Finally, we propose a system where patentees have the option to elect to a patent box regime that reduces their taxes on patent profits substantially (e.g., from 21% to …

Front Matter

SMU Science and Technology Law Review

No abstract provided.

Debugging The Trademark Laws Part Ii: Criminal Penalties For Trafficking In Counterfeit Microelectronics, Patricia E. Campbell

SMU Science and Technology Law Review

Counterfeit microelectronics have been a persistent problem in government and industry supply chains for many years. Counterfeit electronic parts (e.g., integrated circuits, transistors, capacitors) pose serious risks to human health and safety, harm the economy, and jeopardize national security. Trafficking in counterfeit goods and services was first criminalized in 1984, and Congress has acted on several occasions to increase the corresponding penalties. Nevertheless, the trade in counterfeit microelectronics continues to evolve to meet market demands, and relatively few criminal cases have been brought for trafficking in counterfeit microelectronics. While several factors may contribute to this apparent lack of enforcement, the …

The Artificial Intelligence Trolley Problem: Governance In The Post-Chevron World, James M. Cooper, Kashyap Kompella

SMU Science and Technology Law Review

This Essay addresses a growing Constitutional challenge in public governance: the increasing delegation of consequential decisions to algorithmic systems that encode value trade-offs between liberty and security, equity and efficiency, and expression and control, without visibility, legal justification, or institutional oversight. We view this hidden normative choice an example of the “Artificial Intelligence (AI) Trolley Problem.” Like the classic moral dilemma, it involves unavoidable sacrifices among competing goods. Unlike its philosophical counterpart, however, algorithmic trade-offs occur silently. They are embedded in data proxies, optimization logic, and model design, and insulated from scrutiny by claims of technical neutrality. This Essay argues …

Systemic Risk And The Social Contract, Kevin Frazier

SMU Science and Technology Law Review

The stability of the constitutional order turns, in part, on a stable economy and reliable advances in technology. Political order cannot withstand economic collapse or a massive technological failure. Such crises chip away at the collective will to adhere to the social contract because they indicate the government may not have the capacity to uphold its end of the bargain—protecting individual liberty from broad threats. “Unprecedented” economic downturns, however, have a precedent of emerging from the very deliberate decision of some actors to pursue extremely risky behavior in their self-interest at the expense of the public. Societal disruption from over-dependence …

Retail Innovation Through Ai: Benefits And Liabilities, W. Michael Schuster, Simon E. Corrigan

SMU Science and Technology Law Review

This article investigates the transformative capabilities of artificial intelligence (AI) within the retail industry. We highlight significant opportunities for product customization, innovation, and enhanced supply chain efficiency, while also examining complex legal challenges associated with AI-generated content. In particular, concerns in the copyright realm are highlighted— including documented biases against AI-produced works. Recognizing these issues, retailers should adopt proactive legal strategies, ensure transparency, and consider hybrid human-AI collaborative approaches. Strategically addressing these issues will help maximize consumer and business benefits while mitigating legal exposure.

Robot Regulators, Brian L. Frye

SMU Science and Technology Law Review

No abstract provided.

Visual Legal Rhetoric In The Age Of Generative Ai And Deepfakes: Renaissance Or Dark Ages?, Michael D. Murray

SMU Science and Technology Law Review

The paradoxical development of visual generative AI tools, such as OpenAI’s DALL-E 3, Midjourney, and Stable Diffusion, simultaneously signals a renaissance and a potential dark age in visual rhetoric and communication. On the one hand, these tools democratize the creation of visual content, empowering attorneys and others to become artists and illustrators of their legal communications without needing to learn how to draw. These AI systems can simplify complex legal concepts, bridge language barriers, and enhance advocacy. But on the other hand, the proliferation of deepfakes presents significant challenges for visual rhetoric. Deepfakes can quickly and easily create realistic but …

Willful Ignorance Or Embracing Ai To Find Prior Art? Uspto Misses The Mark, Henry H. Perritt Jr.

SMU Science and Technology Law Review

Artificial intelligence (AI) is frequently in the news. Policymakers and business executives must decide whether it is a revolutionary phenomenon, likely to overturn established enterprises and practices, or if it is a mere modest advancement in decades-old natural language capability over-advertised by Silicon Valley seeking the “next big thing” and hyped by reporters eager for the next byline. The patent office and the patent bar are not immune from the turmoil. The USPTO has issued several policies and inquiries related to the impact of AI on various aspects of patent prosecution. Most recent is a Request for Comments on the …

From Ambiguity To Overreach: The Ftc's Questionable Authority To Ban Non-Competes, Taylor Ray Pelton

Cybaris®

No abstract provided.

Patching The Cfaa So Researchers No Longer Pay, Joshua Baker

Cybaris®

No abstract provided.

A Fear Of Ideas? Social Media, Foreign Influence, And National Security In A New Era Of Great-Power Competition, Michael Park

Fordham Intellectual Property, Media and Entertainment Law Journal

The recent spate of legal restrictions on the use of TikTok and other foreign-controlled social media applications highlight concerns over personal data collection, but also how fears over the potential foreign influence of ideas from adversarial foreign governments—whether by propaganda, censorship, or disinformation—have re-emerged in the national security debate. Yet there are concerns that this new era of great power competition will be the basis for justifying overreaching speech regulations that hinder access to information and ideas under the aegis of national security. This work attempts to examine the recent enactment of speech restrictions or bans on foreign-controlled applications within …

Reevaluating Force Majeure Clauses In The Aftermath Of The Covid-19 Pandemic And Its Implications On The Entertainment Industry, Esther Animalu

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Protecting What's Yours: Rights, Risks, And Realities In Ip And Entertainment, Fordham Iplj

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Ozempic Paradox: How Much Is Too Much In The Race For Weight Loss And Diabetes Treatment?, Jack Bekos

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

The Right To (Digital) Identity, Sarah M. Snow

Fordham Intellectual Property, Media and Entertainment Law Journal

Identity verification is a prerequisite for full participation in modern society. Access to financial services, employment, housing, healthcare, education, and civic engagement all hinge on an individual’s ability to prove their identity. Millions of Americans—particularly marginalized groups—struggle with the rigid, bureaucratic, and often discriminatory processes of traditional identity verification systems. Without legally recognized identification, individuals are effectively excluded from economic and civic life. This Note argues that the ability to prove one’s identity is a protected interest. It proposes adoption of a federal Self-Sovereign Identity (SSI) as a legal and technological mechanism to guarantee all Americans have access to a …

Generative Ai Is Doomed, Eric Goldman

Marquette Intellectual Property & Innovation Law Review

Eric Goldman delivered this talk as the 2024 Nies Lecture at Marquette University School of Law, in Milwaukee, Wisconsin. The talk compares the recent proliferation of generative AI with the Internet’s proliferation in the mid-1990s. In each case, it was clear that the technology would have revolutionary but uncertain impacts on society. However, the public sentiments toward the two innovations have differed radically. The Internet arrived during a period of widespread techno-optimism, creating a regulatory environment that fostered the Internet’s growth. Generative AI, in contrast, has arrived during widespread techno-pessimism and following decades of conditioning about the dangers of “AI.” …

Beyond The Hype: The Use Of “Artificial Intelligence” In Healthcare And The Legal And Business Risks Associated With This New Technology, Greg Gulick

Marquette Intellectual Property & Innovation Law Review

None.

What Can Copyright Law Learn From Greek Tragedy?, Mira Moldawer

Marquette Intellectual Property & Innovation Law Review

None.

My Body, My Voice: Defining Vocal Identity Rights To Combat Ai-Generated Deception, Kamran Moos

Marquette Intellectual Property & Innovation Law Review

Kamran Moos emphasizes the growing risk of nonconsensual AI-generated voice misappropriation and suggests a novel legal framework to address the issue. Moos explains how AI models have made voice replication quick and easy, in some cases requiring only a two-second voice clip to produce a convincing audio recording. These AI-generated recordings can be used to carry out identity theft, misinformation, and commercial exploitation. Moos argues that current legal frameworks, such as the right of publicity, misappropriation, and copyright law, are inadequate to protect individuals from AI-generated voice misappropriation. He advocates for a new legal framework rooted in copyright and property …

Tech Addiction: The Legal Limits Of A Growing Concept, Haneen Abu Ghanem

Marquette Intellectual Property & Innovation Law Review

None.

The Laboratory Of Repair: Testing California’S Right To Repair Law In The Post-Analytical Phase, John Wilson

Marquette Intellectual Property & Innovation Law Review

None.

Characters In Copyright Law: Extraordinary Rules For Ordinary Content, Robert F. Helfing

Marquette Intellectual Property & Innovation Law Review

Characters are a breed apart in copyright law. Only they have a special standard of creativity. Only they must have unique elements to qualify for protection. Only they are exempt from analysis as derivative works when they appear in multiple works, and only they are required to maintain consistent features in order to maintain protection previously earned. These and other idiosyncrasies do not follow naturally from precedent or statutory law, but operate heedless of and even contrary to legal authority.

This article shows that, after fifty years of undifferentiated treatment, the courts suddenly began to apply divergent rules to characters. …

Stars, Statutes, And Sharing: Designing Global Ip Frameworks For Space-Based Discoveries, Ed Koellner

Marquette Intellectual Property & Innovation Law Review

As humanity stretches farther into space physically, commercially, and intellectually, contemporary legal frameworks are beginning to creak under the pressure. Intellectual property laws seem to be playing catch-up. Those laws were written for a world bound by borders and gravity, not for orbital labs, the Earth’s Moon, or AI-generated inventions drifting above the Earth.

This article takes a closer look at the increasingly complex intersection of space law, intellectual property, and artificial intelligence. This domain is no longer reserved for state-led missions or high-level treaties. Now and in the near future, a university lab or a private startup might be …

The Role Of Antitrust In Innovation: Standard Essential Patents, Alexandra Perez

Marquette Intellectual Property & Innovation Law Review

A Standard Essential Patent (SEP) is a patent that is chosen to streamline a chosen industry standard to promote economic growth and consumer satisfaction. Consumers interact with SEPs in almost everything they do in their daily life, from connecting to WIFI to charging any device. This is possible because the patent selection process requires patent owners to license their patents on fair, reasonable, and non-discriminatory terms (FRAND) upon selection.  Yet, without proper regulation, this is easier said than done. Often SEP implementers are left with two options, entering exploitative agreements or rely on litigation to address unchecked anticompetitive behavior. This …

Can Miley Cyrus Really Buy Her Own Flowers: An Analysis Of Answer Songs In Relation To Fair Use, Emmeline Eike

Marquette Intellectual Property & Innovation Law Review

September 16, 2024, Tempo Music Investments LLC filed a copyright infringement complaint against Miley Cyrus. The complaint is due to the striking similarities between Cyrus’s song, Flowers, and Bruno Mars’s song When I Was Your Man. Tempo Music attributes Cyrus’ success with Flowers in 2023 to When I Was Your Man’s existence and not purely from the song itself.  In discussing this lawsuit, this comment explores how likely a fair use claim is to succeed, while also analyzing how the parody fair use defense is currently applied to songwriting. Additionally, it also discussed parodies vs. answer/response songs, specifically what the …

Virtual Court Proceedings And Their Effect On Criminal Defendants’ Rights, Hunter J. Phillips

Marquette Intellectual Property & Innovation Law Review

This Comment examines whether implementing virtual evidentiary proceedings diminishes a criminal defendant’s Constitutional rights. Part One introduces the Confrontation Clause and judicial interpretations that shape its modern legal view.

Part One also introduces the importance of face-to-face testimony and how the Confrontation Clause is founded upon that principle. Part One concludes by offering psychological research that highlights the im-portance of face-to-face proceedings that allow for effective criminal proceedings. Part Two introduces legislation that hinders defendants’ Confrontation rights and critically analyzes that legislation. Part Three argues for the abandonment of virtual criminal proceedings and highlights other factors that should be considered …

Medellín Manifesto On Transnational Value Chains And International Law, Diane Desierto

Journal Articles

Global Value Chains (GVCs) have been heralded as the ‘new world of trade’, yet they branch far beyond what has traditionally been considered ‘trade’—they interact with and are informed by multiple legal regimes often in ways unrelated to the theoretical and practical bases of those regimes. Building on the 2016 IGLP Manifesto, which sought to place law at the centre of GVC research, the Medellín Manifesto’s aspiration is to establish a research agenda that is specifically focused on international law: one that treats GVCs as amorphous and transnational legal creatures—they are transnational value chains (TVCs); one that recognises that the …

Streaming, Copyright And Creators: A Canadian Perspective, Graham Reynolds

All Faculty Publications

This paper will provide an introduction to streaming and copyright in Canada. It will proceed in five parts. Following this introduction, Part 2 of this paper will define streaming, discuss some of the benefits that flow from the widespread use of streaming services, and outline the extent to which streaming technologies are in use in Canada today. In so doing, this paper will distinguish between three types of streaming services: streaming services that secure authorization from rights-holders before making content available; streaming services that rely on technological measures or liability exemptions in order to host content in a non-infringing manner; …

Artificial Intelligence And Music Mash-Ups: Monetizing An Opt-In Closed Universe Database To Preserve Royalties And Credit For Composer And Sound Recording Rights Holders, Michael M. Epstein

Marquette Law Review

This Article charts the development of an opt-in database of music publishing and sound recording catalogues that would allow music industry stakeholders to profit from those who use artificial intelligence to generate new creative content from existing intellectual property. The database would be a portal to content that rights holders would consent to include in a library made available to the public. The database could be advertiser-supported, allowing for no-cost access by the public, or users could pay for a blanket license or per- search fee. Proceeds from the database would be distributed to rights holders based on the content …