Intellectual Property Law Commons^™

Duck, Duck, Bilski: Searching For A Law-Progress Equipoise, Eric Golas Salbert

The Journal of Business, Entrepreneurship & the Law

Moore's Law generally asserts that the transistor capacity on a computer processing unit increases exponentially over time. To exemplify, in 1971, Intel's first microprocessor contained 2,300 transistors and was used in simple electronic pocket calculators and by 2007 Intel was manufacturing microprocessors containing 820,000,000 transistors used in personal computers capable of near-instantaneous worldwide communication over the Internet. When the framers of the Constitution drafted the empowering words, “To promote the Progress of Science and useful Arts,” could they foresee such a blistering pace of innovation? Have courts been able to maintain the balance between progress and limited monopolies? The history …

Protecting A Celebrity's Legacy: Living In California Or New York Becomes The Deciding Factor, Laurie Henderson

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Notorious: The Treatment Of Famous Trademarks In America And How Protection Can Be Ensured, Blake W. Jackson

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Shutting Down The Offense: Why The Supreme Court Should Designate The Nfl A Single Entity For Antitrust Purposes, Peter R. Morrison

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

The Impact Of Medimmune, Inc. V. Genentech, Inc. And Its Progeny On Technology Licensing, Michael Donovan

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Abolish Trademark Law's Initial Interest Confusion And Permit Manipulative Internet Search Practices, Priya Singh

The Journal of Business, Entrepreneurship & the Law

This article discusses trademark law’s doctrine of initial interest confusion, which is currently applied to Internet cases. First, it argues that the doctrine is problematic because it does not require the traditional showing of likelihood of confusion, it is superfluous, and it is unnecessary in the Internet context. Second, it proposes that courts should instead rely on the likelihood of confusion analysis. Additionally, courts should acknowledge that metatags are an outdated issue, and, when it comes to domain names, they should make use of the Anticybersquatting Consumer Protection Act (“ACPA”).

Piracy By Plastic: Why The Ninth Circuit Should Have Held Credit Cards Liable For Secondary Copyright Infringement, Jonathan Lee

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Federal Patent Takings, Christopher S. Storm

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Wisdom Of The Ages Or Dead-Hand Control? Patentable Subject Matter For Diagnostic Methods After In Re Bilski, Rebecca Sue Eisenberg

Law & Economics Working Papers

For a quarter century following the landmark 1980 decision of the Supreme Court in Diamond v. Chakrabarty, inventions and discoveries in biotechnology research appeared to be eligible for patent protection, assuming they meet the statutory standards for patent protection. The Supreme Court reopened the issue of patentable subject matter in 2005 when it granted certiorari in Laboratory Corporation v. Metabolite on the question of whether a method of diagnosing vitamin deficiency by observing a biomarker was unpatentable as a “basic scientific relationship.” Although the Court later dismissed the case without reaching a decision on the merits, since that time the …

Expanding Public Access To The Results Of Federally Funded Research, Joan Giesecke

Copyright, Fair Use, Scholarly Communication, etc.

The complete collection of articles resulting from publicly funded research should be made freely accessible, so that the public can fully use them – (i.e. text mine, data mine, compute on them, create derivative works) without commercial restriction.

Public access policies can be successfully implemented by respecting and working within the current copyright framework.

The federal government is the appropriate entity to provide permanent stewardship of these articles, and is in a unique position to ensure that publicly funded articles are permanently preserved, made accessible, and useable.

Publishers are one player that might be encouraged to participate in public/private partnership …

Playboy, Contact Lenses, And Trademark Infringement: An Analysis Of Possible Claims As A Result Of Pop-Up Advertisements, Ashley A. Locke

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

The Moral Rights Act Of 2007: Finding The Melody In The Music, Aurele Danoff

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

Limits On Utility In The Face Of 21st Century Invention: The Problem With Limiting Patent Claims On Est Sequences, Kyle Strache

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

The "Evolving Written Description Doctrine" And The Search For Specificity (A.K.A. Adequacy Is The Matter Of Invention.), Gerald R. Prettyman Jr.

The Journal of Business, Entrepreneurship & the Law

In 1996, the U.S. Supreme Court ruled in Markman that claim construction was a matter of law for the judge to decide. There was hope in the patent bar that Markman would bring uniformity to claim construction and a reduction to the lengthy process of patent litigation. Some authors report instead that the claim construction reversal rate is increasing. Other authors question the consistency of the rulings from the Court of Appeals for the Federal Circuit. Circuit Judge Rader of the Federal Circuit recently named this controversy the “Evolving Written Description Doctrine.” Behind this controversy primarily lies judicial interpretation of …

Best Practices For The Law Of The Horse: Teaching Cyberlaw And Illuminating Law Through Online Simulations, Ira Steven Nathenson

Santa Clara High Technology Law Journal

In an influential 1996 article entitled Cyberspace and the Law of the Horse, Judge Frank Easterbrook mocked cyberlaw as a subject lacking in cohesion and therefore unworthy of inclusion in the law school curriculum. Responses to Easterbrook, most notably that of Lawrence Lessig in his 1999 article The Law of the Horse: What Cyberlaw Might Teach, have taken a theoretical approach. However, this Article—also appropriating the “Law of the Horse” moniker—concludes that Easterbrook’s challenge is primarily pedagogical, requiring a response keyed to whether cyberlaw ought to be taught in law schools. The Article concludes that despite Easterbrook’s concerns, cyberlaw presents …

The Shape Of Things To Come: What We Can Learn From Patent Claim Length, Kristen Osenga

Santa Clara High Technology Law Journal

Technology is always changing. Patent law is also constantly evolving, as the courts and Congress continue to make significant changes to this area of law. But what about patents themselves? Some studies have looked at how patent specifications have changed over time, but no one has looked specifically at the most important aspect of a patent, its claims. Given the changes in technology and law, one would anticipate patent claims to have evolved.

Despite the expectations, this paper concludes that patent claim shape is largely unaffected by time, technology, crowded fields, or prosecution time. This paper suggests a possible reason …

Why We Need A Strong Patent System And When: Filling The Void Left By The Bilski Case, Richard S. Gruner

Santa Clara High Technology Law Journal

Patent law is presently under-theorized. Patents are granted to serve as rewards for certain types of inventive successes, but the nature of the successes to be rewarded, the circumstances that should trigger rewards, and the size of the rewards that will best serve the public remain in substantial dispute. One of the primary reasons for these uncertainties is the incompleteness of underlying theories explaining why patented inventions deserve special treatment and rewards. The lack of good understanding of the theoretical justifications for patent rewards (and the limitations of those justifications) means that patent law standards are being reconsidered and revised …

Reconciling Foreign And Domestic Infringement, Bernard Chao

Sturm College of Law: Faculty Scholarship

This article proceeds in four parts. In Part II, I describe the primary theories of infringement: direct infringement, inducement and contributory infringement. Part II highlights two important characteristics of each of these theories-the intent required to commit infringement and the presence or absence of express territorial limitations. In short, direct infringement is a strict liability offense that only applies to conduct in the United States. Inducement requires the intent to infringe and has no territorial limitation. And contributory infringement requires the intent to infringe, but only applies to acts committed in the United States.

In Part III, I explain how …

Transnational Copyright: Misalignments Between Regulation, Business Models And User Practice, Leonhard Dobusch, Sigrid Quack

Transnational Business Governance Interactions Working Papers

In this paper we analyse discursive struggles over what is referred to as legal and illegal user practices in the internet as an outcome of regulatory uncertainty. The latter, in turn, is examined in the context of a multi-layered transnational copyright regime characterised by three features: the absence of an universally recognized single authority in charge of law-making, fragmented and partially contradicting forms of regulation of global, national and sectoral scope, and considerable indeterminacy of rule interpretation and application arising from the variety and distinctiveness of local usage contexts. We argue that notions of legality and illegality are used strategically …

Do Bad Things Happen When Works Enter The Public Domain?: Empirical Tests Of Copyright Term Extension (With P. Heald), Christopher J. Buccafusco

All Faculty Scholarship

The international debate over copyright term extension for existing works turns on the validity of three empirical assertions about what happens to works when they fall into the public domain. Our study of the market for audio books and a related human subjects experiment suggest that all three assertions are suspect. We demonstrate that audio books made from public domain bestsellers (1913-22) are significantly more available than those made from copyrighted bestsellers (1923-32). We also demonstrate that recordings of public domain and copyrighted books are of equal quality. While a low quality recording seems to lower a listener's valuation of …