Intellectual Property Law Commons^™

How Not To Apply Actavis, Michael A. Carrier

NULR Online

No abstract provided.

Section 337 And The Gatt: A Necessary Protection Or An Unfair Trade Practice?, Nathan G. Knight Jr.

Georgia Journal of International & Comparative Law

No abstract provided.

Changing Trends In The Content And Purpose Of Mexico's Intellectual Property Right Regime, Alan S. Gutterman

Georgia Journal of International & Comparative Law

No abstract provided.

Proposed Secondary Liability Regimes For Trademark Infringement Online: Commentary, Irene Calboli, Jane Ginsburg, Amy Cotton, Bob Weigel, Bruce Rich, Miguel Peguera

Faculty Scholarship

No abstract provided.

The Curious Incident Of The Supreme Court In Myriad Genetics, Dan L. Burk

Notre Dame Law Review

Often what is not said is as significant as what is said. In its recent Myriad Genetics decision, the United States Supreme Court is curiously silent about the relationship between its holding in that case and the holding in its immediately previous patent subject matter case, Mayo v. Prometheus. This reticence is all the more puzzling given that the Court initially remanded Myriad to the lower courts for reconsideration in light of the Mayo holding. The Court’s silence regarding Mayo leaves uncertain the relationship between the “products of nature” doctrine that serves as the basis for the Myriad decision, and …

Constitutional Limits On Surveillance: Associational Freedom In The Age Of Data Hoarding, Deven R. Desai

Notre Dame Law Review

Protecting associational freedom is a core, independent yet unappreciated part of the Fourth Amendment. New surveillance techniques threaten that freedom. Surveillance is no longer primarily forward looking. Today, changing technology allows law enforcement and intelligence services to obtain the same, if not more, information about all of us by looking backward. This shift massively expands the government’s ability to examine, investigate, and deter exercise of the freedom of association.

Forward-looking surveillance has limits that don’t apply to backward-looking surveillance. Some limits are practical such as the cost to place a person in a car to follow a suspect. Some are …

The Vonage Trilogy: A Case Study In "Patent Bullying", Ted Sichelman

Notre Dame Law Review

This Article presents an in-depth case study of a series of infringement suits filed by “patent bullies.” Unlike the oft-discussed “patent trolls”—which typically sell no products or services and perform no R&D—patent bullies are large, established operating companies that threaten or institute costly patent infringement actions of dubious merit against smaller companies, usually in order to suppress competition or garner licensing fees. In an ideal world of high-quality patents and optimal patent licensing and litigation, infringement suits by aggressive incumbents would have a cleansing, almost Darwinian effect. Yet, defects and distortions in patent examination, licensing, and litigation—the very problems that …

Toward A Patent Exhaustion Regime For Sustainable Development, 32 Berkeley J. Int'l Law. 330 (2014), Benjamin Liu

UIC Law Open Access Faculty Scholarship

This Article argues that the current exhaustion doctrine, when applied to the refurbishing industry, fails to balance its mandate of promoting technological progress with the broader program of sustainable development and is therefore unsuitable for countries on the modernization path. First, what constitutes an infringing “making” remains underdetermined. Second, the evidentiary hurdle for proving legal refurbishment is too onerous for the low margin and under-resourced refurbishing industry. Finally, the all-or-nothing approach to judging infringement fails to account for the nuanced cost-benefit nexus that exists between patentees, refurbishers, and society at large and discourages private ordering. To recalibrate the balance between …

Promoting Progress: A Qualitative Analysis Of Creative And Innovative Production, Jessica Silbey

Faculty Scholarship

This chapter is based on data collected as part of a larger qualitative empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents and business partners. Broadly, the project involves the collecting and analysis of these interviews to understand how and why the interviewees create and innovate and to make sense of the intersection between intellectual property law and creative and innovative activity from the ground up. This chapter specifically investigates the concept of “progress” as discussed in the interviews. “Promoting progress” is the ostensible goal of the intellectual property protection in the United States, but what …

Trade Secret Fair Use, Deepa Varadarajan

Faculty Publications By Year

Trade secret law arose to help companies protect confidential information (e.g., the Coca-Cola formula) from competitors seeking to copy their innovative efforts. But companies increasingly use trade secret law to block a wide swath of information from the scrutinizing eyes of consumers, public watchdog groups, and potential improvers. Companies can do this, in part, because trade secret law lacks clear limiting doctrines that consider the social benefits of unauthorized use. For example, trade secret law makes no allowance for the departing employee that uses proprietary information to create a substantially improved product or disclose public health risks.

This Article argues …

Trade Secret Fair Use, Deepa Varadarajan

Fordham Law Review

Trade secret law arose to help companies protect confidential information (e.g., the Coca-Cola formula) from competitors seeking to copy their innovative efforts. But companies increasingly use trade secret law to block a wide swath of information from the scrutinizing eyes of consumers, public watchdog groups, and potential improvers. Companies can do this, in part, because trade secret law lacks clear limiting doctrines that consider the social benefits of unauthorized use. For example, trade secret law makes no allowance for the departing employee that uses proprietary information to create a substantially improved product or disclose public health risks.

This Article argues …

Unpacking Patent Assertion Entities (Paes), Christopher A. Cotropia

Law Faculty Publications

In Part I, we explain several theories on why PAEs are beneficial or detrimental to the patent system. These theories outline distinct categories of patent holders who enforce their patents. Transforming the distinct categories into a coding scheme, we detail in Part II the methodology we used to generate the dataset. Part III provides descriptive statistics of 2010 and 2012 patent litigation. We discuss implications of the data, including points of disagreement between our data and the data of others, in Part IV. We also describe some areas of future study, many of which we are presently undertaking. Finally, we …

How Copyright Law May Affect Pop Music Without Our Knowing It, Peter K. Yu

Faculty Scholarship

Commissioned for a symposium on copyright law and the creation of music, this article explores five questions about popular music that can be illuminated by greater insights into copyright law and the music business. Why do popular songs usually last for fewer than five minutes? Why are professional songwriters dissatisfied with Pandora and Spotify? Why can we bring European CDs back to the United States? Why can't YouTube videos be created with ASCAP/BMI licenses? Are digital downloads sales or licenses? And as a bonus: Why did the royalty rate for sheet music stay at seven cents per copy?

It is …

Patent Claim Interpretation Review: Deference Or Correction Driven?, Christopher A. Cotropia

BYU Law Review

This Article examines the Federal Circuit’s review of claim constructions by lower tribunals to determine whether the Federal Circuit defers to lower court constructions or is making its own, independent determination as to the “correct” construction and ultimate result in the case.

The data collected from 2010 to 2013 indicates that the Federal Circuit affirms about 75% of lower court claim interpretations. While this finding is itself surprising, even more surprising is that these reviews do not appear to be driven by deference. Instead, the Federal Circuit is less likely to correct constructions that resulted in a patentee loss below, …

Where Is The Evidence? Realising The Value Of Grey Literature For Public Policy & Practice, A Discussion Paper, Amanda Lawrence, John Houghton, Julian Thomas, Paul Weldon

Copyright, Fair Use, Scholarly Communication, etc.

The internet has profoundly changed how we produce, use and collect research and information for public policy and practice, with grey literature playing an increasingly important role. The authors argue that grey literature (i.e. material produced and published by organisations without recourse to the commercial or scholarly publishing industry) is a key part of the evidence produced and used for public policy and practice. Through surveys of users, producing organisations and collecting services a detailed picture is provided of the importance and economic value of grey literature. However, finding and accessing policy information is a time-consuming task made harder by …

Shared Branding: Associated Use Of Trademarks And Trade Dress Through Shared Retail Space, Lanning Bryer, Scott Lebson, Francesca Montalvo

The Journal of Business, Entrepreneurship & the Law

This Article explores the increasingly popular marketing strategy of two or more unrelated companies offering their separate and distinct mono-branded goods and services in a shared commercial space--herein referred to as “shared branding.”

Is Internet Radio “Livin' On A Prayer”? With New Legislation, It “Will Make It, I Swear”, Kelsey Schulz

The Journal of Business, Entrepreneurship & the Law

This Comment discusses whether the IRFA would be the appropriate solution to the inequities in current copyright law as it pertains to digital music. Part I of this Comment will provide a more in-depth discussion of the history of copyright law and music distribution. It will examine the implications of the 1971 Sound Recording Act, the 1976 Copyright Act, and the Digital Performance Right in Sound Recordings Act of 1995. Part II will provide a critique of the current state of the law, including a look at the Digital Millennium Copyright Act of 1998 and its effects on the respective …

The Shield Act: A Good Attempt At Curbing Patent Trolls That Leaves Us Wanting More, Adina Sivaraman

The Journal of Business, Entrepreneurship & the Law

This Comment explores the SHIELD Act in its entirety. Part II examines the historical background of the patent troll issue--focusing on former legislation and case law that sought to curb patent troll lawsuits. Part III discusses what the SHIELD Act is and what it aims to do. Part IV analyzes the positive and negative effects that the SHIELD Act would have if passed and takes a look at other options for limiting patent troll litigation, while ultimately contending that the SHIELD Act should be reformed to take a stronger stand against patent trolls by taking into account other proposed reforms. …

Whodunnit? Divided Patent Infringement In Light Of Akamai Technologies, Inc. V. Limelight Networks, Inc., Mark Tomlinson

The Journal of Business, Entrepreneurship & the Law

This Note provides background information on divided patent infringement in the United States with emphasis on landmark cases and the previous understanding of the Patent Act. Part II provides background information on the underlying controversies and the software at issue in each case. Part III discusses the opinions of the factions of the court, and Part IV dissects the reasoning of each. Part V examines the implications of Akamai on businesses and other method patent holders while acknowledging that the future of the court's holding remains uncertain.

Bibliography: The 2014 Conference Of The Intellectual Property Section Of The State Bar Of Nevada, Wiener-Rogers Law Library, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

Bibliographies

No abstract provided.