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Articles 31 - 60 of 70
Full-Text Articles in Science and Technology Law
Walking The Line: Why The Presumption Against Extraterritorial Application Of U.S. Patent Law Should Limit The Reach Of 35 U.S.C. § 271(F), Jennifer Giordano-Coltart
Walking The Line: Why The Presumption Against Extraterritorial Application Of U.S. Patent Law Should Limit The Reach Of 35 U.S.C. § 271(F), Jennifer Giordano-Coltart
Duke Law & Technology Review
The advent of the digital era and the global market pose unique challenges to intellectual property law. To adapt, U.S. patent laws require constant interpretation in the face of rapidly changing technological advances. In AT&T Corp. v. Microsoft Corp., the Federal Circuit interpreted 35 U.S.C. § 271(f) in a technology-dependent manner in order to effectuate the purpose of the law with respect to global software distribution. However, the Federal Circuit failed to consider the presumption against extraterritorial application of U.S. law, and its decision now risks international discord and harm not only to the American software industry, but other U.S. …
Where Will Consumers Find Privacy Protection From Rfids?: A Case For Federal Legislation, Serena G. Stein
Where Will Consumers Find Privacy Protection From Rfids?: A Case For Federal Legislation, Serena G. Stein
Duke Law & Technology Review
With the birth of RFID technology, businesses gained the ability to tag products with practically invisible computer chips that relay information about consumer behavior to remote databases. Such tagging permits retailers and manufacturers to track the purchases, identities, and movements of their customers. In the absence of enforceable regulations, society risks being subjected to an unprecedented level of Orwellian surveillance. This iBrief addresses consumer privacy concerns stemming from the proliferation of RFID technology. It discusses why tort law, state legislation, FTC guidelines, and proposed regulations are insufficient methods to alleviate consumer privacy concerns and suggests amending various federal privacy laws, …
Is Kelly Shifting Under Google’S Feet? New Ninth Circuit Impact On The Google Library Project Litigation, Cameron W. Westin
Is Kelly Shifting Under Google’S Feet? New Ninth Circuit Impact On The Google Library Project Litigation, Cameron W. Westin
Duke Law & Technology Review
The Google Library Project presents what many consider to be the perfect fair-use problem. The legal debate surrounding the Library Project has centered on the Ninth Circuit’s Kelly v. Arriba Soft. Yet recent case law presents new arguments for both sides of the Library Project litigation. This iBrief analyzes two Ninth Circuit district court decisions on fair use, Field v. Google, Inc. and Perfect 10 v. Google, Inc., and their impact on the Library Project litigation.
Does Information Beget Information?, Dennis S. Karjala
Does Information Beget Information?, Dennis S. Karjala
Duke Law & Technology Review
Using the language of mathematics, Professor Polk Wagner has recently argued that the impossibility of fully appropriating the value of information in a rightsholder leads to the surprising conclusion that expanding the degree of control of intellectual property rights will, in the long run, increase the sum total of information not subject to ownership claims and therefore available as part of the cultural and technological base on which new growth and development can occur. Indeed, he claims that open information will grow according to the formula for compound interest, where the interest rate is 100% plus or minus a factor …
Unnecessary Indeterminacy: Process Patent Protection After Kinik V. Itc, John M. Eden
Unnecessary Indeterminacy: Process Patent Protection After Kinik V. Itc, John M. Eden
Duke Law & Technology Review
In Kinik v. International Trade Commission, the U.S. Court of Appeals for the Federal Circuit suggested in dicta that the defenses available to foreign manufacturers in infringement actions under 35 U.S.C. § 271(g) in Federal district courts do not apply to exclusion actions before the International Trade Commission. This iBrief argues that this decision is problematic for three reasons: (1) the Federal Circuit’s decision is inconsistent with the ITC’s longstanding tradition of consulting the patent statute when adjudicating exclusion actions under 19 U.S.C. § 1337, (2) the court’s suggestion that the ITC should be given broad discretion to resolve conflicts …
Patent Misuse In Patent Pool Licensing: From National Harrow To “The Nine No-Nos” To Not Likely, Daniel P. Homiller
Patent Misuse In Patent Pool Licensing: From National Harrow To “The Nine No-Nos” To Not Likely, Daniel P. Homiller
Duke Law & Technology Review
Courts and the Justice Department’s Antitrust division have become increasingly tolerant of patent licensing practices that were previously viewed with suspicion. This trend has put pressure on the doctrine of patent misuse, which arose in the 1940s as a doctrine distinct from, but closely related to, standard antitrust analysis. The U.S. Court of Appeals for the Federal Circuit recently overturned an International Trade Commission order that held unenforceable, on the grounds of patent misuse, six patents licensed as a package by U.S. Philips Corporation. The Federal Circuit’s decision raises the question of just how much remains of the doctrine of …
Barriers To Innovation: Intellectual Property Transaction Costs In Scientific Collaboration, Megan Ristau Baca
Barriers To Innovation: Intellectual Property Transaction Costs In Scientific Collaboration, Megan Ristau Baca
Duke Law & Technology Review
The institution of university science research has evolved over the past century, from one of open science and free information to one of competition and jealously guarded intellectual property rights. This iBrief analyzes the background factors driving the evolution of the institution of science, evaluates the net effects on the progress of science, and considers potential short-term solutions to alleviate the legal transaction costs necessary for scientific collaboration.
Better To Give Than To Receive: Evaluating Recent Ip Donation Tax Policy Changes, Don Macbean
Better To Give Than To Receive: Evaluating Recent Ip Donation Tax Policy Changes, Don Macbean
Duke Law & Technology Review
Over the past decade, charitable contributions of intellectual property have grown rapidly. This growth has coincided with tremendous abuse as firms have sought inflated valuations of donated intellectual property in order to claim larger tax deductions. In 2004, Congress responded by passing section 882 of the American Jobs Creation Act, which drastically changed the rules governing donations of intellectual property. This iBrief argues that Congress, in addressing overvalued intellectual property donations, went too far in its efforts by failing to fully consider the importance of positive donor incentives. After discussing other proposed policies, this iBrief suggests a hybrid policy that …
From Deepsouth To The Great White North: The Extraterritorial Reach Of United States Patent Law After Research In Motion, Daniel P. Homiller
From Deepsouth To The Great White North: The Extraterritorial Reach Of United States Patent Law After Research In Motion, Daniel P. Homiller
Duke Law & Technology Review
In the Internet age, complex telecommunications systems are often deployed with little regard for international borders. In NTP, Inc. v. Research in Motion, Ltd., the Federal Circuit determined that one such system infringed several U.S. patents, despite the fact that an essential element of the system was located outside the territorial United States. This iBrief argues that the Federal Circuit erred in invoking the "control and beneficial use" test, which it culled from the very few prior cases addressing extraterritorial application of U.S. patent law. In doing so, the court disregarded the Supreme Court's direction in Deepsouth Packing Co. v. …
A New Paradigm For Intellectual Property Rights In Software, Mark H. Webbink
A New Paradigm For Intellectual Property Rights In Software, Mark H. Webbink
Duke Law & Technology Review
A Winter 2004 article by Bradford L. Smith and Susan O. Mann of Microsoft published in The University of Chicago Law Review suggests that the development and growth of the software industry in the U.S. is a direct outgrowth of the implementation of intellectual property regimes, specifically copyright and patent, with respect to software in the late 1970s and early 1980s. This paper suggests that such patents were neither the sole nor the principal factor for the development of the software industry, that concerns about patents manifested prior to or soon after their application to software have proven true, and …
Troll Or No Troll? Policing Patent Usage With An Open Post-Grant Review, David G. Barker
Troll Or No Troll? Policing Patent Usage With An Open Post-Grant Review, David G. Barker
Duke Law & Technology Review
In December 2004, a mystery business, JGR Acquisitions Inc., purchased the patent portfolio of bankrupt Commerce One at auction. Commerce One had not previously enforced the acquired patents and many companies were using the patented technologies at the time of the auction. Patent watchdog groups argued that JGR--a potential patent troll formed solely to purchase Commerce One's patents--should not be able to use the patents as a vehicle to extract licensing fees and that the patents should lapse into the public domain. Under current law, however, there is no provision for patents to be invalidated merely because they are used …
Willful Infringement And The Evidentiary Value Of Opinion Letters After Knorr–Bremse V. Dana, Joshua Stowell
Willful Infringement And The Evidentiary Value Of Opinion Letters After Knorr–Bremse V. Dana, Joshua Stowell
Duke Law & Technology Review
Recently, the Federal Circuit in Knorr-Bremse v. Dana overruled almost twenty years of precedent by striking down the adverse inference doctrine, which had created a negative presumption against any alleged patent infringer for failing to obtain and disclose a patent opinion letter at trial. The decision, while strongly supported by numerous intellectual property and business associations, has created uncertainty for patent attorneys regarding the use of opinion letters in litigation and the acceptable methods for proving willful infringement. This iBrief addresses two specific questions left unanswered by the decision. It concludes that (1) Federal Circuit precedent strongly suggests that the …
Patent Damage Strategies And The Enterprise License: Constructive Notice, Actual Notice, No Notice, James W. Soong
Patent Damage Strategies And The Enterprise License: Constructive Notice, Actual Notice, No Notice, James W. Soong
Duke Law & Technology Review
For the patent owner, early provision of patent notice can help maximize recoverable infringement damages during subsequent litigation. This iBrief recognizes a growing trend of infringement suits predicated on patented enterprise software technology, and analyzes application of patent notice principles against industry convention. This iBrief examines the licensing paradigm of enterprise software and questions whether mechanical compliance with the marking statute should qualify as constructive notice. Borrowing from analogous Federal Circuit principles, this iBrief concludes by proposing alternate notice theories that would empower patentees to seek increased remedies consistent with industry reality, case law, and fundamental statutory purpose.
Protecting The Next Small Thing: Nanotechnology And The Reverse Doctrine Of Equivalents, Andrew Wasson
Protecting The Next Small Thing: Nanotechnology And The Reverse Doctrine Of Equivalents, Andrew Wasson
Duke Law & Technology Review
If even a fraction of the predictions about nanotechnology are realized, our society will be a dramatically different and better place than it is today. Yet, due to the infancy of the field, it is still unclear how traditional patent doctrine will be applied to nanotechnology. As it stands, the creators of nanoscale versions of traditional products might face infringement claims from traditional patent holders. The reverse doctrine of equivalents serves as a possible mechanism to equitably excuse the literal infringement of traditional patents by nanotech inventors in a way that encourages the progress of science.
Where Do High Tech Commercial Innovations Come From?, Lewis Branscomb
Where Do High Tech Commercial Innovations Come From?, Lewis Branscomb
Duke Law & Technology Review
On February 19, 2004, Dr. Lewis Branscomb gave the Meredith and Kip Frey Lecture in Intellectual Property at Duke Law School. In his speech, Dr. Branscomb discussed various models for turning basic scientific inventions into high-tech innovations and highlighted the roles that universities, private investors, and intellectual property law play in each model. Dr. Branscomb concluded that this intermediary process is the most important step in getting high-tech innovations to market.
Should Juries Hear Complex Patent Cases?, Jennifer F. Miller
Should Juries Hear Complex Patent Cases?, Jennifer F. Miller
Duke Law & Technology Review
A debate has arisen within the legal community over the existence and constitutionality of a so-called "complexity exception" to the Seventh Amendment. This exception would give a judge the discretion to deny a jury trial in a civil case if he or she feels that the issue is too complex for a jury to decide properly. This iBrief discusses the constitutionality of the complexity exception and the arguments for and against its implementation, with particular emphasis on the application of the exception to patent infringement cases. The iBrief then postulates that, while a blanket exception for patent infringement cases may …
The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang
The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang
Duke Law & Technology Review
The Supreme Court established a two-part test for determining when an invention is "on sale" under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be "ready for patenting" and subject of a "commercial offer for sale." In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a "commercial offer for sale."
The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang
The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang
Duke Law & Technology Review
The Supreme Court established a two-part test for determining when an invention is "on sale" under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be "ready for patenting" and subject of a "commercial offer for sale." In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a "commercial offer for sale."
Patenting Computer Data Structures: The Ghost, The Machine And The Federal Circuit, Andrew Joseph Hollander
Patenting Computer Data Structures: The Ghost, The Machine And The Federal Circuit, Andrew Joseph Hollander
Duke Law & Technology Review
Courts view "data structures," the mechanism by which computers store data in meaningful relationships, differently than do computer scientists. While computer scientists recognize that data structures have aspects that are both physical (how they are stored in memory) and logical (the relationships among the stored information), the Federal Circuit, in its attempts to set clear standards of the scope of patentability of data structures, has not fully appreciated their dualistic nature. This i-brief explains what data structures are, explores how courts have wrestled with setting a limiting principle to determine their patentability, and discusses the resultant impact on claim drafting.
U.S. Infringement Liability For Foreign Sellers Of Infringing Products, Troy Petersen
U.S. Infringement Liability For Foreign Sellers Of Infringing Products, Troy Petersen
Duke Law & Technology Review
With the ever-increasing international flavor of business comes an important question for United States patent holders and foreign manufacturers alike: Can a company be held liable for patent infringement in the United States for selling an infringing product abroad that is later imported into the United States?
Pfaff Revisited: How The Federal Circuit Has Elaborated On The “Ready For Patenting” Standard, Jennifer F. Miller
Pfaff Revisited: How The Federal Circuit Has Elaborated On The “Ready For Patenting” Standard, Jennifer F. Miller
Duke Law & Technology Review
In Pfaff v. Wells Electronics, Inc., the Supreme Court established a two-part test to determine when an invention is "on sale" for purposes of Title 35 U.S.C. §102(b). In addition to being the subject of a commercial offer for sale, an invention must be "ready for patenting" in order to be considered "on sale." Since Pfaff, the Court of Appeals for the Federal Circuit has had numerous opportunities to expound upon how inventors can fulfill the latter condition. This iBrief will discuss the factors the Federal Circuit has determined are indicative of an invention's "ready for patenting" status.
3d Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?, Ben Quarmby
3d Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?, Ben Quarmby
Duke Law & Technology Review
With the advent of protein engineering, the determination of a protein’s 3D structure has taken on a whole new importance. This has prompted some to call for the United States Patent and Trademark Office [USPTO] to break with tradition and allow patents on the three-dimensional structural information of proteins. This iBrief will discuss whether such information would constitute patentable subject matter under 35 U.S.C. §101, and how much protection patents on this information could actually confer.
Fairplay Or Greed: Mandating University Responsibility Toward Student Inventors, Carmen J. Mccutcheon
Fairplay Or Greed: Mandating University Responsibility Toward Student Inventors, Carmen J. Mccutcheon
Duke Law & Technology Review
Over twenty years have passed since the enactment of The Patent and Trademark Law Amendments Act (Bayh-Dole Act) and universities continue to struggle with their technology transfer infrastructures. Lost in that struggle are those who could be considered the backbone of university research: the students. Graduate and undergraduate students remain baffled by the patent assignment and technology transfer processes within their various institutions. Efforts should be undertaken by universities to clarify the student's position in the creative process.
A Putative Inventor’S Remedies To Correct Inventorship On A Patent, Campbell Chiang
A Putative Inventor’S Remedies To Correct Inventorship On A Patent, Campbell Chiang
Duke Law & Technology Review
Inventorship is a required component of patents issued in the United States, and the penalty for filing a patent with incorrect inventorship is harsh: possible invalidation of the entire patent. This iBrief explores the background on inventorship in the United States patent system, and various remedies such as 35 U.S.C. §116, 35 U.S.C. §256, and interference proceedings in correcting errors in inventorship. This iBrief will then discuss the usefulness of these various remedies to a putative inventor who was left off the inventorship of a patent.
Sealing The Coffin On The Experimental Use Exception, Jennifer Miller
Sealing The Coffin On The Experimental Use Exception, Jennifer Miller
Duke Law & Technology Review
In a petition for writ of certiorari, Duke University requests that the Supreme Court reverse a Federal Circuit holding that, in its view, "seals the coffin on the experimental use exception for private universities." This iBrief discusses the Federal Circuit's decision in Madey v. Duke University and its possible effects on the progress of science.
Software Patent Law: United States And Europe Compared, Michael Guntersdorfer
Software Patent Law: United States And Europe Compared, Michael Guntersdorfer
Duke Law & Technology Review
Software is a global business. Patents are increasingly the protection of choice; as a consequence, international software patent laws are of growing importance to software vendors. This article focuses on European patent law and how it differs from United States law in regards to software technology. Statutes and relevant case law of both unions are discussed and compared, providing an introductory secondary source for scholars and practitioners.
Patent Royalties Extending Beyond Expiration: An Illogical Ban From Brulotte To Scheiber, Michael Koenig
Patent Royalties Extending Beyond Expiration: An Illogical Ban From Brulotte To Scheiber, Michael Koenig
Duke Law & Technology Review
A recent decision by the Seventh Circuit Court of Appeals, Scheiber v. Dolby Laboratories, Inc., called into question, yet dutifully applied, the somewhat disfavored Supreme Court patent case of Brulotte v. Thys Co. For thirty-eight years, Brulotte has served as an absolute prohibition on the collection of any patent royalties extending beyond the expiration date of the patent. As Justice Douglas stated in writing for the eight-Justice majority, "a patentee's use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se." Ostensibly, this concise and easily-applied exposition of the law seems sensible enough. …
Patentable Subject [Anti]Matter, Kristoffer Leftwich
Patentable Subject [Anti]Matter, Kristoffer Leftwich
Duke Law & Technology Review
The statements, "The laws of nature," "the principles of nature," "the fundamental truths," etc., are not patentable, have been oft repeated but seldom understandingly used. They have led to misunderstanding and much confusion, not limited to members of the bar. In fact, the words... are all words of broad and also elastic meaning and are frequently used carelessly and without any attempt at refined distinctions.
Festo: Blessing To Patent Holders Or Thorn In Their Sides?, Jennifer Miller
Festo: Blessing To Patent Holders Or Thorn In Their Sides?, Jennifer Miller
Duke Law & Technology Review
The Supreme Court makes another attempt to strike a balance between protecting an inventor's patent rights and ensuring adequate notice to the public of what constitutes patent infringement. This iBrief discusses the Supreme Court ruling in Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd. and its foreseeable effects on the practice of patent law.
Software Patents: What One-Click Buy And Safe Air Travel Have In Common, Michael Guntersdorfer
Software Patents: What One-Click Buy And Safe Air Travel Have In Common, Michael Guntersdorfer
Duke Law & Technology Review
Have you ever sat in an airplane, typing on your laptop, when the darn thing crashes for the one-millionth time? Have you ever then thought about how the airplane you are sitting in is controlled by software, too--the technical term being "fly by wire"--and then started sweating uncontrollably? Software controls not only air traffic but plenty of other safety-critical technologies: the tightrope walk of controlling the chain reaction of radioactive elements in nuclear power plants; the navigation and activation of missiles;3 the moves and cutting-depth of a surgical laser when correcting eye-sights; the list goes on... With such reliance on …