Intellectual Property Law Commons^™

Should The U.S. Government Actively Assert Its Own Patents?, Christopher J. Morten, Barry Datlof, Amy Kapczynski, Donna Meuth, Zain Rizvi

Faculty Scholarship

On March 10, 2021, our journal partnered with the Engelberg Center on Innovation Law and Policy to host a symposium addressing the role and impact of U.S. innovation policy on access to medicine. Our 2021 Symposium Issue — Volume 11, Issue 1 — captures that event.

The following article represents the second of four panels. This panel asked, “Should the U.S. government actively assert its own patents?” The panel was moderated by Christopher Morten, Deputy Director of NYU Law’s Technology Law & Policy Clinic. The panelists included Barry Datlof, Chief of Business Development and Commercialization in the Office of Medical …

Legal Internalism In Modern Histories Of Copyright, Shyamkrishna Balganesh, Taisu Zhang

Faculty Scholarship

Legal internalism refers to the internal point of view that professional participants in a legal practice develop toward it. It represents a behavioral phenomenon wherein such participants treat the domain of law (or a subset of it) as normative, epistemologically self-contained, and logically coherent on its own terms regardless of whether the law actually embodies those characteristics. Thus understood, legal internalism remains an important characteristic of all modern legal systems. In this Review, we examine three recent interdisciplinary histories of copyright law to showcase the working of legal internalism. We argue that while their interdisciplinary emphasis adds to the conversation …

Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh

Faculty Scholarship

In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious impli­cations for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copy­right adjudication that is at odds with the dominant approach under the Copyright …

The Use Of Technical Experts In Software Copyright Cases: Rectifying The Ninth Circuit’S “Nutty” Rule, Shyamkrishna Balganesh, Peter S. Menell

Faculty Scholarship

Courts have long been skeptical about the use of expert witnesses in copyright cases. More than four decades ago, and before Congress extended copyright law to protect computer software, the Ninth Circuit in Krofft Television Productions, Inc. v. McDonald’s Corp. ruled that expert testimony was inadmissible to determine whether Mayor McCheese and the merry band of McDonald’s characters infringed copyright protection for Wilhelmina W. Witchiepoo and the other imaginative H.R. Pufnstuf costumed characters. Since the emergence of software copyright infringement cases in the 1980s, substantially all software copyright cases have permitted expert witnesses to aid juries in understanding software code. …

Conundra Of The Berne Convention Concept Of The Country Of Origin, Jane C. Ginsburg

Faculty Scholarship

This essay explores one of the most important, but occasionally intractable, issues under the Berne Convention, the concept of Country of Origin. Article 5(4) of that treaty defines a work’s country of origin, but leaves out several situations, leaving those who interpret and apply the treaty without guidance in ascertaining the country of origin. I will call those situations the “Conundra of the country of origin,” and will explore two of them here. First, what is the country of origin of an unpublished work whose authors are nationals of different countries? Second, what is the country of origin of a …

International Law Association's Guidelines On Intellectual Property And Private International Law ("Kyoto Guidelines"): Applicable Law, Marie-Elodie Ancel, Nicolas Binctin, Josef Drexl, Mireille Van Eechoud, Jane C. Ginsburg, Toshiyuki Kono, Gyooho Lee, Rita Matulionyte, Edouard Treppoz, Dário Moura Vicente

Faculty Scholarship

The chapter “Applicable Law” of the International Law Association’s Guidelines on In­tellectual Property and Private International Law (“Kyoto Guidelines”) provides principles on the choice of law in international intellectual property matters. The Guidelines confirm the traditional principle of the lex loci protectionis for the existence, transferabil­ity, scope and infringement of intellectual property rights. The law applicable to the initial ownership of registered rights is governed by the lex loci protec­tionis whereas the law of the closest connection is applied to determine the ownership of copyright. For contracts, freedom of choice is acknowledged. With regard to ubiquitous or multi-state infringement and …

Trademarks In Conversation: Assessing Genericism After Booking.Com, Laura A. Heymann

Faculty Publications

It is a fundamental principle of U.S. trademark law that to serve as a trademark, a word or phrase must “indicate the source” of the goods or services with which it is associated and, conversely, that a term that is understood to be the common name of a good or service is “generic” and cannot be protected as a trademark. Yet it still seems difficult to determine exactly what each concept means, particularly when the actual “source” of any goods or services might be opaque to consumers.

In part, this difficulty comes from the fact that status as a trademark …

The Right Of Reattribution, Brian L. Frye

Law Faculty Scholarly Articles

Usually, authors love their works as their children: fiercely and unconditionally. Indeed, many authors refer to their works as their “children,” and some show far more solicitude for their aesthetic children than their actual ones. Of course, authors can also be cruel to their works. As William Faulkner famously observed, “In writing you must kill all your darlings.” But even such merciless culling doesn’t prevent authors from loving what survives. If anything, their love only deepens with each sacrifice.

But even the filial bond can be broken. Many disappointed parents have disowned their prodigal children. Sometimes the relationship can be …

The Wonderful World Of Patents: "They Do Things Differently There", David Vaver

Editorials and Commentaries

No abstract provided.

Former Chief Judge Paul Michel’S Keynote Address At The 64th Annual Intellectual Property Conference At The Uic John Marshall Law School — The Arc Of American Patent Law: Balance And Rebalance And Rebalance Intellectual Property Policy, 20 Uic Rev. Intell. Prop. L. 102 (2021), Paul Michel

UIC Review of Intellectual Property Law

No abstract provided.

Automated Trade Secret Asset Management: Sfp Classification, Eona Proofs, Blockchaining, And Dtsa Civil Seizure Orders, 20 Uic Rev. Intell. Prop. L. 145 (2021), R. Mark Halligan

UIC Review of Intellectual Property Law

No abstract provided.

This Is Fisa Calling To Let You Know You May Be Eligible For A Motion To Suppress: New Notice Requirement From United States V. Moalin, 20 Uic Rev. Intell. Prop. L. 166 (2021), Jennifer Armstrong

UIC Review of Intellectual Property Law

No abstract provided.

Trademark Law After Uspto V. Booking.Com: “Generic.Com” Takeover, 20 Uic Rev. Intell. Prop. L. 182 (2021), Paige Miller

UIC Review of Intellectual Property Law

No abstract provided.

Filtering Innovation Wheat From Chaff: Quick Citations As Indicators Of Patented Invention Value, 20 Uic Rev. Intell. Prop. L. 202 (2021), Richard Gruner

UIC Review of Intellectual Property Law

No abstract provided.

The Scope Of Employment Test Under The Work-Made-For-Hire Doctrine Revisited: How Covid-19, Remote Working, And The Restatement (Third) Of Agency Could Change It, 20 Uic Rev. Intell. Prop. L. 232 (2021), Diana Simon

UIC Review of Intellectual Property Law

No abstract provided.

A Proposal For A More Objective Method In Determining The Extent Of Similarities Between Musical Works For The Purpose Of Probative Copying, 20 Uic Rev. Intell. Prop. L. 251 (2021), Rachael Belensz

UIC Review of Intellectual Property Law

No abstract provided.

Carpenter V. United States: Step Forward For Smartphones And Their Data, But Maybe Not For Other Technologies, 20 Uic Rev. Intell. Prop. L. 308 (2021), Stephen Bartholomew

UIC Review of Intellectual Property Law

No abstract provided.

Is Gray V. Perry The One That Got Away? The Idea-Expression Dichotomy And Music Copyright Infringement, 20 Uic Rev. Intell. Prop. L. 290 (2021), Marisa Schutz

UIC Review of Intellectual Property Law

No abstract provided.

The Blur Between Fact And Fiction: Should Trademark Protections Extend To Aspects Of Fictional Works?, 20 Uic Rev. Intell. Prop. L. 451 (2021), Sam Walker

UIC Review of Intellectual Property Law

No abstract provided.

Replacing The Rogers Test: Will An Inquiry Into Non-Artistic Motive In Selecting Titles Of Expressive Works Remedy The Possibility Of Flagrant Deception?, 20 Uic Rev. Intell. Prop. L. 429 (2021), Sabina Nedkova

UIC Review of Intellectual Property Law

No abstract provided.