On Measuring The Expertise Of Patent-Pilot Judges: Encouraging Enhancement Of Claim-Construction Uniformity, 12 J. Marshall Rev. Intell. Prop. L. 309 (2013),
2013
UIC School of Law
On Measuring The Expertise Of Patent-Pilot Judges: Encouraging Enhancement Of Claim-Construction Uniformity, 12 J. Marshall Rev. Intell. Prop. L. 309 (2013), Etan S. Chatlynne
UIC Review of Intellectual Property Law
A Pilot Program to “encourage enhancement of expertise” in patent cases among district judges recently got underway in the federal courts. The program is designed to funnel patent cases to judges who volunteer to become “pilot judges.” The idea is that as these judges hear more patent cases and become more familiar with patent law, they will be able to craft claim constructions and opinions that are increasingly likely to survive the scrutiny of the Court of Appeals for the Federal Circuit. Unfortunately, the Federal Circuit’s jurisprudence may itself encumber these efforts because of a split among the Federal Circuit …
The Trademark/Domain Name Protection War: A Comparative Study Of The U.S., Udrp And Taiwanese Law, 12 J. Marshall Rev. Intell. Prop. L. 350 (2013),
2013
UIC School of Law
The Trademark/Domain Name Protection War: A Comparative Study Of The U.S., Udrp And Taiwanese Law, 12 J. Marshall Rev. Intell. Prop. L. 350 (2013), Chih-Hong (Henry) Tsai
UIC Review of Intellectual Property Law
Trademarks have ancient origins, and a long developmental history that has informed and shaped modern approaches to trademark disputes. Many of these disputes are familiar. Yet others are a product of technological developments, such as the threats modern trademark owners face as a result of young and vibrant domain names. The United States Congress and the Internet Corporation for Assigned Names and Numbers (ICANN) have each attempted to address conflicts between trademarks and domain names, while Taiwan has not. After surveying the U.S. and ICANN attempts, and comparing each to existing Taiwanese law, this Article provides a set of recommendations …
The Biosimilars Act: The United States’ Entry Into Regulating Biosimilars And Its Implications, 12 J. Marshall Rev. Intell. Prop. L. 322 (2013),
2013
UIC School of Law
The Biosimilars Act: The United States’ Entry Into Regulating Biosimilars And Its Implications, 12 J. Marshall Rev. Intell. Prop. L. 322 (2013), Shawn P. Gorman, Adrian Pishko, John Iwanicki, Judith Stone-Hulslander
UIC Review of Intellectual Property Law
The Patient Protection and Affordable Care Act is most well-known for creating a mandate requiring individuals to have health insurance. However, another provision of the Act, the Biologics Price Competition and Innovation Act, created a new process for companies to introduce biosimilars, products that are highly similar to licensed drugs in terms of purity, safety, and potency, but have minor differences in the inactive ingredients. This provision seeks to alleviate strain on companies introducing biosimilars by creating an abbreviated pathway for their approval by the Food and Drug Administration, similar to an Abbreviated New Drug Application under the Hatch-Waxman Act. …
As Seen On Tv: Your Compromising Cameo On National Reality Programming, 12 J. Marshall Rev. Intell. Prop. L. 403 (2013),
2013
UIC School of Law
As Seen On Tv: Your Compromising Cameo On National Reality Programming, 12 J. Marshall Rev. Intell. Prop. L. 403 (2013), Ryan Westerman
UIC Review of Intellectual Property Law
The pop-culture phenomenon of reality television has taken over national programming. With the click of a remote, viewers can gain an inside look into the daily lives of celebrity families, toddler pageant queens, wealthy housewives, even pregnant teenagers. Reality television also profiles different professions: repo-men, pawn shop owners, and real estate agents all have television time slots. While it seems everyone is desperate for their fifteen minutes of fame, there are still those who wish to avoid the public spotlight. However, a recent Illinois ruling may make avoiding prime-time attention impossible for certain individuals caught on tape in compromising, and …
“Cyberanarchy” In The Digital Age: Developing A System Of Human (Copy)Rights, 12 J. Marshall Rev. Intell. Prop. L. 424 (2013),
2013
UIC School of Law
“Cyberanarchy” In The Digital Age: Developing A System Of Human (Copy)Rights, 12 J. Marshall Rev. Intell. Prop. L. 424 (2013), Michael L. Boyle
UIC Review of Intellectual Property Law
“Cyberanarchy,” broadly refers to the idea that legal regulation of the Internet is an infeasible objective. One prime example is current online enforcement mechanisms’ inability to quell copyright infringement. These mechanisms do little more than perpetuate a technological arms race between copyright holders and infringers. Moreover, with notable public relations failures, such as the RIAA lawsuits and digital rights management schemes, society has taken on a nonchalant attitude towards online infringement. Examining traditional justifications behind obedience to the law, this blasé attitude takes root in societal feelings of inadequacy both in “normative” and “instrumental” perspectives of justice. Normatively, there lacks …
#Bewareofovershare: Social Media Discovery And Importance In Intellectual Property Litigation, 12 J. Marshall Rev. Intell. Prop. L. 449 (2013),
2013
UIC School of Law
#Bewareofovershare: Social Media Discovery And Importance In Intellectual Property Litigation, 12 J. Marshall Rev. Intell. Prop. L. 449 (2013), Jennifer K. Gregory
UIC Review of Intellectual Property Law
As the use of social media continues to expand, lawyers will increasingly rely on evidence gleaned from social media sources. This is already true in several areas of litigation, including various types of intellectual property litigation. Thus far, the rules of civil procedure, evidence, and professional conduct have addressed many of the issues that arise regarding the acquisition and use of social media evidence. Lawyers should at least investigate social media usage by key parties in each particular case in order to be aware of what social media evidence could be available. Lawyers are also responsible for having a basic …
Mad Men Posing As Ordinary Consumers: The Essential Role Of Self-Regulation And Industry Ethics On Decreasing Deceptive Online Consumer Ratings And Reviews, 12 J. Marshall Rev. Intell. Prop. L. 462 (2013),
2013
UIC School of Law
Mad Men Posing As Ordinary Consumers: The Essential Role Of Self-Regulation And Industry Ethics On Decreasing Deceptive Online Consumer Ratings And Reviews, 12 J. Marshall Rev. Intell. Prop. L. 462 (2013), Lucille M. Ponte
UIC Review of Intellectual Property Law
Technology provides consumers with new ways to avoid advertisements, such as fast forwarding through TV commercials and using filtering software to block pop-up ads. Accordingly brand sponsors and their advertising marketing firms have sought alternative methods to pierce through consumer resistance to ads. Social media offers an optimal platform to reach millions of consumers on a nearly daily basis who interact and often rely heavily on the reviews and rankings of fellow consumers. However, many of today’s branding campaigns now mask sponsored ads as ordinary consumer reviews or “Like” and “Don’t Like” responses to a service or product. Unbeknownst to …
Outspoken: Social Media And The Modern College Athlete, 12 J. Marshall Rev. Intell. Prop. L. 509 (2013),
2013
Texas A&M University School of Law
Outspoken: Social Media And The Modern College Athlete, 12 J. Marshall Rev. Intell. Prop. L. 509 (2013), Meg Penrose
UIC Review of Intellectual Property Law
The First Amendment to the United States Constitution grants American citizens the right to free speech. However, in the case of college athletes, this right is not without limitation. In exchange for the privilege of participating in college level athletics, college athletes voluntarily agree to terms that restrict their abilities to speak freely, specifically in the context of social media platforms. This article details situations in which college athletes have made offensive statements via social media for which they later needed to delete, explain, and apologize. These examples support the notion that restrictions on college athletes’ speech are not only …
The Emerging Reality Of Social Media: Erosion Of Individual Privacy Through Cyber-Vetting And Law’S Inability To Catch Up, 12 J. Marshall Rev. Intell. Prop. L. 551 (2013),
2013
UIC School of Law
The Emerging Reality Of Social Media: Erosion Of Individual Privacy Through Cyber-Vetting And Law’S Inability To Catch Up, 12 J. Marshall Rev. Intell. Prop. L. 551 (2013), Saby Ghoshray
UIC Review of Intellectual Property Law
The rise of social media means that data about a large number of people is available in public and quasi-public digital locations. Employers, keen on taking advantage of this additional data to decrease the risk associated with an offer of employment, are engaging in “cyber-vetting”—non-consenting social media searches conducted by third parties or the employers themselves. To the extent that current law applies to this practice, the regulation it provides is weak and attacks only part of the problem. Left unchecked, cyber-vetting has the potential to fundamentally alter the scope of prospective employees’ rights. This article surveys the legal and …
What Close Cases And Reversals Reveal About Claim Construction At The Federal Circuit, 12 J. Marshall Rev. Intell. Prop. L. 583 (2013),
2013
UIC School of Law
What Close Cases And Reversals Reveal About Claim Construction At The Federal Circuit, 12 J. Marshall Rev. Intell. Prop. L. 583 (2013), Thomas W. Krause, Heather F. Auyang
UIC Review of Intellectual Property Law
Claim construction is central to patent litigation and has been the focus of a voluminous body of scholarship. Researchers have collected data from all aspects of claim construction cases, looking for answers to questions such as why the Federal Circuit reverses district courts’ claim constructions so frequently, why Federal Circuit judges reach different conclusions from one another, and what methodologies these judges are utilizing. This paper takes a novel approach to analyze these questions. Rather than focus on all claim construction cases, this paper focuses only on cases where the Federal Circuit was divided and a dissent was written, and …
Should There Be A Presumption Favoring Awards Of Attorney’S Fees In Copyright Litigation?, 12 J. Marshall Rev. Intell. Prop. L. 630 (2013),
2013
John Marshall Law School
Should There Be A Presumption Favoring Awards Of Attorney’S Fees In Copyright Litigation?, 12 J. Marshall Rev. Intell. Prop. L. 630 (2013), William T. Mcgrath
UIC Review of Intellectual Property Law
Section 505 of the Copyright Act allows courts to award attorney’s fees to the prevailing party in a copyright case. Almost twenty years ago, the Supreme Court in Fogerty resolved a split among the circuits over the interpretation of that statute. First, it held that courts should apply several nonexclusive factors when determining if the prevailing party, whether defendant or plaintiff, should be entitled to recover attorney’s fees. Second, the Court refused to apply a presumption that the prevailing party will automatically recover attorney’s fees, opting instead for the districts courts to apply “equitable discretion” in awarding fees. But in …
Idea Into Practice: How Well Does U.S. Patent Law Implement Modern Innovation Theory, 12 J. Marshall Rev. Intell. Prop. L. 644 (2013),
2013
UIC School of Law
Idea Into Practice: How Well Does U.S. Patent Law Implement Modern Innovation Theory, 12 J. Marshall Rev. Intell. Prop. L. 644 (2013), Stephen M. Maurer
UIC Review of Intellectual Property Law
The U.S. Supreme Court’s decision in Graham v. John Deere (1966) placed neoclassical economic insights at the heart of modern patent law. But economic theory has moved on. Since the 1990s, legal scholars have repeatedly mined the discipline to propose ad hoc rules for individual industries, such as biotech and software. So far, however, they have almost always ignored the literature’s broader lessons for doctrine. This article asks how well today’s patent doctrine follows and occasionally departs from modern economic principles. The analysis begins by reviewing what neoclassical economists have learned about innovation since the 1970s. Legal scholars usually divide …
A Context-Sensitive Inquiry: The Interpretation Of Meaning In Cases Of Visual Appropriation Art, 12 J. Marshall Rev. Intell. Prop. L. 746 (2013),
2013
UIC School of Law
A Context-Sensitive Inquiry: The Interpretation Of Meaning In Cases Of Visual Appropriation Art, 12 J. Marshall Rev. Intell. Prop. L. 746 (2013), Elizabeth Winkowski
UIC Review of Intellectual Property Law
As Andy Warhol’s famous depiction of a soup can has demonstrated, the meaning of a work depends on its context. While the Campbell’s label signified one thing to shoppers in supermarkets, it raised new questions when presented as a work of art. Warhol’s work is just one example of what has come to be known as appropriation art, an artistic practice that borrows and repurposes images from the media, popular culture, and other sources. Unsurprisingly, this art form is in frequent tension with copyright law. This comment suggests that in analyzing the“purpose and character” factor of the fair use inquiry, …
Million-Card Monte: Reforming The Markush Claim Post-Aia To Save Synthetic Chemical Innovation, 12 J. Marshall Rev. Intell. Prop. L. 720 (2013),
2013
UIC School of Law
Million-Card Monte: Reforming The Markush Claim Post-Aia To Save Synthetic Chemical Innovation, 12 J. Marshall Rev. Intell. Prop. L. 720 (2013), Adam Sussman
UIC Review of Intellectual Property Law
The Markush patent claim arose as a solution to the challenging problem of describing inventions that could not be defined any other way than by a list of the members of a group. The original Markush group, claimed in 1923, listed only three alternatives; in the years since, the populations of these groups have swelled to totals beyond calculation, as pharmaceutical companies took advantage of the opportunity to claim multitudes of alternative chemical compounds by systematically iterating the functional groups at various molecular positions. However, without completing the now-impossible task of synthesizing and testing each of innumerable chemical compounds for …
Reverse Payment Settlements: The U.S. Supreme Court Has Finally Agreed To Resolve The Issue, 12 J. Marshall Rev. Intell. Prop. L. 787 (2013),
2013
UIC School of Law
Reverse Payment Settlements: The U.S. Supreme Court Has Finally Agreed To Resolve The Issue, 12 J. Marshall Rev. Intell. Prop. L. 787 (2013), Tyler Cho
UIC Review of Intellectual Property Law
Paragraph IV of the Hatch-Waxman Act provides a mechanism for litigating pharmaceutical patent infringement disputes. Many of these cases have been settled with “reverse payments” from the brand to the generic in return for delayed generic entry. The U.S. Federal Trade Commission (FTC) has contested a number of these settlements with mixed results. On July 16, 2012, the U.S. Court of Appeals for the Third Circuit issued a decision holding that pharmaceutical patent settlements that restrict generic entry and contain a payment to the generic company are presumptively unlawful under U.S. antitrust laws. By holding that a patent settlement can …
Directed To Or Encompassing A Human Organism: How Section 33 Of The America Invents Act May Threaten The Future Of Biotechnology, 12 J. Marshall Rev. Intell. Prop. L. 768 (2013),
2013
UIC School of Law
Directed To Or Encompassing A Human Organism: How Section 33 Of The America Invents Act May Threaten The Future Of Biotechnology, 12 J. Marshall Rev. Intell. Prop. L. 768 (2013), Ava Caffarini
UIC Review of Intellectual Property Law
Biotechnology is a rapidly growing field that has pushed the limits of patent eligible subject matter. In response to the expansion of biotechnology, critics have emerged with both economic and moral concerns over the development and patenting of these technologies. On the economic front, critics are wary of the potential development of an“anticommons.” On the moral front, critics are concerned with the potential to erode human dignity and “play God.” Congress has responded to the moral concerns with section 33 of the America Invents Act. Section 33 states that“[n]otwithstanding any other provision of law, no patent may issue on a …
I Like Cabernet And Merlot But I'M Not Drinking Bordeaux: Certified Confusion, 13 J. Marshall Rev. Intell. Prop. L. 203 (2013),
2013
UIC School of Law
I Like Cabernet And Merlot But I'M Not Drinking Bordeaux: Certified Confusion, 13 J. Marshall Rev. Intell. Prop. L. 203 (2013), Angela Huisingh
UIC Review of Intellectual Property Law
A trademark’s purpose is to help consumers identify a service or product’s source. To this end, trademark owners may prevent others from using their marks on similar goods. But to ensure that a few savvy businesspersons do not monopolize certain terms, the Lanham Act carves out specific exceptions to trademark protection. Some of these exceptions include indications of geographic origin, such as Bordeaux and Napa Valley. Wine, however, has long been identified primarily by the geographic region in which its grapes grow. To ameliorate this fundamental divide, and to preserve the integrity of their Geographical Indications in the eyes of …
How The Internet Has Removed The Historical Rationale For "Non-Analogous Arts", 13 J. Marshall Rev. Intell. Prop. L. 68 (2013),
2013
UIC School of Law
How The Internet Has Removed The Historical Rationale For "Non-Analogous Arts", 13 J. Marshall Rev. Intell. Prop. L. 68 (2013), Hal Milton
UIC Review of Intellectual Property Law
The growth of the Internet has affected countless aspects of daily life, including the patent system. Internet-based legal research has grown considerably, given the convenience of general search agents such as Google, legally-focused search agents such as Westlaw and Lexis, and patent-focused search agents such as the PAIR system of the United States Patent and Trademark Office. These legal research tools have not only made it easier to find prior art, they have also expanded the volume of information that is available to one of ordinary skill in the art. Consequently, the traditional rules of so-called “analogous arts” are changing. …
Chinese National Well-Known Trademarks And Local Famous Trademarks In Light Of The 2013 Trademark Law: Status, Effect, And Adequacy, 13 J. Marshall Rev. Intell. Prop. L. 225 (2013),
2013
UIC School of Law
Chinese National Well-Known Trademarks And Local Famous Trademarks In Light Of The 2013 Trademark Law: Status, Effect, And Adequacy, 13 J. Marshall Rev. Intell. Prop. L. 225 (2013), Paul Kossof
UIC Review of Intellectual Property Law
Chinese national well-known trademarks (中国驰名商标) and local famous trademarks (本地著名商标) are two distinct unique intellectual property rights in the People’s Republic of China (“PRC”). Intellectual property attorneys in the PRC, especially foreign consultants, often encounter challenges in understanding these trademark rights including various legislative, administrative, and judicial documents, differences between local regulations, and the general lack of information and translations. The third revision to the Trademark Law, which takes effect on May 1, 2014, will bring widespread domestic attention to this subject because the new law bans the use of national well-known trademarks on products, packaging, and advertising. The author …
Application Of The Hatch-Waxman Act's Safe Harbor Provision Following Momenta, 13 J. Marshall Rev. Intell. Prop. L. 1 (2013),
2013
UIC School of Law
Application Of The Hatch-Waxman Act's Safe Harbor Provision Following Momenta, 13 J. Marshall Rev. Intell. Prop. L. 1 (2013), Alfred C. Server
UIC Review of Intellectual Property Law
The Federal Circuit’s recent decision in Momenta v. Amphastar highlights the continuing uncertainty regarding the scope of the statutory exemption from patent infringement provided in 35 U.S.C. § 271(e)(1). The statute states that “[i]t shall not be an act of infringement to make, use, offer to sell, or sell within the United States or import into the United States a patented invention . . . solely for uses reasonably related to the development and submission of information under a Federal law which regulates the manufacture, use, or sale of drugs or veterinary biological products.” Since its adoption in 1984 with …
