Intellectual Property Law Commons^™

Continuing The Conversation Of "The Economic Irrationality Of The Patent Misuse Doctrine", Christa J. Laser

Chicago-Kent Journal of Intellectual Property

This Article uses economic tools to find the best way for courts to construe or for Congress to modify the patent misuse doctrine. It attempts to continue the conversation begun by Professor Mark Lemley in his often-cited Comment, The Economic Irrationality of the Patent Misuse Doctrine. It argues that a partial economic equilibrium in patent misuse doctrine can be achieved by attempting to match Congress’s intended patent scope with the actual patent scope. It then holds that the ideal patent misuse doctrine should (1) adequately discourage patentees from seeking to exceed their patent scope while (2) continuing to encourage innovation …

A Proposal To Expand The Religious Services Exemption Under The Copyright Act, Kevin M. Lemley

University of Arkansas at Little Rock Law Review

This article focuses on the religious services exemption to the Copyright Act. The religious services exemption is one of many exemptions that permit certain types of use without first obtaining permission from the copyright owner, or proving fair use. This article argues that the religious services exemption should be expanded to cover any work used in the course of services as well as the recording, broadcast, and transmission of the services.

The first part of this article analyzes the existing religious services exemption under the Copyright Act to define the bounds that uses fall under the exemption. The article then …

Funk Brothers - An Exercise Obviousness, Shine Tu

Law Faculty Scholarship

No abstract provided.

A Short History Of "Intellectual Property" In Relation To Copyright, Justin Hughes

Cardozo Law Review

No abstract provided.

Rebutting Obviousness In The Pharmaceutical Industry: Secondary Considerations Of Analogs, Jolie D. Lechner

Chicago-Kent Journal of Intellectual Property

Pharmaceutical companies depend on patent protection to recuperate the high costs of research and development. In regards to the patentability of structurally related compounds, the courts must decide whether a compound is obvious in view of its structurally similar prior art. In general, a compound is non-obvious over the structurally related prior art if the compound exhibits unexpected results. However, placing primary emphasis on a compound's unexpected properties is out of step with the realities of drug development. For example, during drug development, chemists will modify a compound's structure until they produce a compound that exhibits optimal pharmakinetic properties. This …

The Case Of The Zia: Looking Beyond Trademark Law To Protect Sacred Symbols, Stephanie B. Turner

Chicago-Kent Journal of Intellectual Property

This Article tells the story of a tribe’s fight, over the past two decades, to reclaim its sacred symbol. Members of the Zia tribe, a Native American group located near Albuquerque, New Mexico, have been using their sacred sun symbol in religious ceremonies since 1200 C.E. Today, the symbol appears on the New Mexico state flag, letterhead, and license plate, and on numerous commercial products, including motorcycles and portable toilets. The tribe claims that the state appropriated the symbol without permission in 1925, and that the continued use of the symbol by various parties dilutes its sacred meaning and disparages …

Designer Collaborations As A Solution To The Fast-Fashion Copyright Dilemma, Arielle K. Cohen

Chicago-Kent Journal of Intellectual Property

This article explores the issue of large retailers capitalizing on designers’ designs by using the method of “close copying” and the dilemma that designers face due to their lack of recourse since their designs are not afforded copyright protection. The Council of Fashion Designers of America has been lobbying Congress for protection and their efforts have created the Innovative Design Protection and Piracy Prevention Act. This legislation is currently pending but it is a revised version of the earlier Design Piracy Prohibition Act and it removes many of the controversial provisions that were in the earlier version. Therefore, there is …

Patent Reversion: An Employee-Inventor's Second Bite At The Apple, Richard A. Kamprath

Chicago-Kent Journal of Intellectual Property

In an attempt to more fully compensate employee-inventors without harming the return on investment of employers, a patent reversion is proposed similar to that already in place in copyright law. In Section II, the background of the relationship between employer and employee-inventor will be discussed in terms of patent rights. This section will outline the problems inherent in the pre-assignment status quo of these rights from employees to employers. Section III will begin with Part A, which is a review of previously proposed solutions to the under-compensation of employee-inventors. The second part of Section III will discuss the proposed patent …

Fair Use And The Quotation Of Song Lyrics In Fiction, Stephen B. Harrison

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Plumpy'nut Predicament: Is Compulsory Licensing A Solution?, Umar R. Bakhsh

Chicago-Kent Journal of Intellectual Property

No abstract provided.

Patent Law's Falstaff: Inequitable Conduct, The Federal Circuit, And Therasense, John M. Golden

Washington Journal of Law, Technology & Arts

For decades, the relationship between the U.S. Court of Appeals for the Federal Circuit and patent law’s doctrine of inequitable conduct has resembled that between Shakespeare’s Prince Hal and John Falstaff. The former recognizes the excess, the deservedly ill repute, even the at least occasional wickedness of the latter, but cannot tear away from his close companion. Likewise, for decades, Federal Circuit judges have criticized the excesses of the defense of inequitable conduct, which can render a patent unenforceable as a result of misrepresentation or nondisclosure to the U.S. Patent and Trademark Office. Nevertheless, U.S. patent law remains wedded to …

Chief Judge Rader's Material Contribution To Geographic Indicator Analysis, Signe H. Naeve

Washington Journal of Law, Technology & Arts

Geographic indicators—trademarks that use a place name to indicate goods or services—are now theoretically easier to register, even if the good or service does not actually come from that place. This shift is a result of three cases, two authored by Chief Judge Randall R. Rader of the Federal Circuit Court of Appeals (California Innovations and Les Halles), and one where he served on the panel (Spirits International). These cases made it more difficult for a trademark examiner to reject an application for a primarily geographically deceptively misdescriptive mark by adding a materiality requirement. However, raising the bar was not …

Tuning The Obviousness Inquiry After Ksr, Mark D. Janis

Washington Journal of Law, Technology & Arts

One of the most important and delicate judicial tasks in patent law is to keep the obviousness doctrine in reasonable working order. There are several reasons why the obviousness doctrine has been the subject of frequent judicial tinkering. First, patentability doctrines interact with each other, so doctrinal alterations that seem to be entirely external to the obviousness doctrine frequently have ripple effects on obviousness. The interaction between the utility and obviousness doctrines provides one good example. Second, the obviousness doctrine is internally complex. Cases in the chemical and biotechnology areas over the past several decades have amply illustrated this point. …

Chief Judge Rader's Contribution To Comparative Patent Law, Toshiko Takenaka

Washington Journal of Law, Technology & Arts

Chief Judge Rader influences patent jurisprudence in other nations through his interaction with judges and lawyers from these jurisdictions. He also uses the comparative method to gain insights from experiences in these jurisdictions to improve U.S. patent jurisprudence. This Article discusses opinions authored by Chief Judge Rader from the comparative law perspective. It discusses his influence on European and Japanese patent jurisprudence in the three areas: the (I) patent eligibility, (II) nonobviousness, and (III) enablement-written description requirements. Judge Rader likewise used his knowledge of foreign jurisprudence to interpret U.S. patent statutes and to develop doctrines in these areas.

Celebrating Contributions Of Chief Judge Rader To Patent Infringement Jurisprudence, Katherine E. White

Washington Journal of Law, Technology & Arts

Chief Judge Rader’s judicial opinions contribute significantly to patent infringement jurisprudence. He writes from a teacher’s perspective, providing context and a clear lens through which legal issues may be examined. His deep reverence for the rule of law pervades his opinions, as he injects a cadre of principles governing his approach. Each opinion builds a foundation made of consistency and clarity in upholding the fundamental purposes underlying the patent grant.

Influencing The Evolving Ip System And Law Of China Through International Outreach, Esther H. Lim

Washington Journal of Law, Technology & Arts

No individual U.S. judge has influenced the evolving IP system and law of China through international outreach more than Chief Judge Rader of the Federal Circuit. Through tireless efforts, he has made an indelible footprint in the history of Chinese IP law as a judge, a professor, and an author. Chief Judge Rader has garnered rock-star status in China through dedication and commitment to contribute to, and to be a part of, China’s IP system and law. He has secured a legendary standing and will be long remembered by the Chinese IP community as an ambassador of IP and judicial …

Efforts To Establish Clear Standards For Exhaustion In Japan, Kaoru Kuroda, Eiji Katayama

Washington Journal of Law, Technology & Arts

The Honorable Chief Judge Rader has often emphasized the importance of establishing clear standards in the field of patent law. Similarly, Japanese courts in this field seem to make an effort to present a clear rule in their holdings. Patent exhaustion theory is one of the fields where a clear and concrete standard by the courts is especially needed. This Article explains several clear standards held by Japanese courts regarding this issue. It then discusses a problem raised by establishing clear standards by courts in a civil law country like Japan and also presents the Japanese Government’s efforts to ensure …

The Search For America's Most Eligible Patent: The Impact Of The Bilski Decision On Obtaining Patents For Processes And Business Methods, Mark Connolly

William & Mary Business Law Review

For one year, the business community, patent lawyers, and the media in the United States speculated as to how the Supreme Court would rule in Bilski v. Kappos. Some forecasted the end of all business method patents, while others advanced the idea that after the case, practically any business method could be patented. When the dust settled, the Court’s holding did neither: it determined that the machine-or-transformation test is not the exclusive test for patent eligibility under Section 101, and left open the possibility for business method patents to withstand future challenges.

While this result frustrated many that advocated for …

Not In It For The Long Run: China's Solution For Compliance With Trips Requires More Than A Nine-Month Campaign, Devon Spencer

University of Miami International and Comparative Law Review

No abstract provided.

Book Review Of Citizens And E-Government: Evaluating Policy And Management, Benjamin J. Keele

Library Staff Publications

No abstract provided.