Intellectual Property Law Commons^™

Martek Biosciences Corp. V. Nutrinova, Inc.: Flipping The Lexiographer Rule On Its Head, Ngai Zhang

Proxy

No abstract provided.

Medical Alert: Alarming Challenges Facing Medical Technology Innovation, Lawrence M. Sung

Faculty Scholarship

No abstract provided.

Joining Or Changing The Conversation? Catholic Social Thought And Intellectual Property, Frank Pasquale

Faculty Scholarship

No abstract provided.

The Elephantine Google Books Settlement, James Grimmelmann

Faculty Scholarship

The genius—some would say the evil genius—of the proposed Google Books settlement is the way it fuses legal categories. The settlement raises important class action, copyright, and antitrust issues, among others. But just as an elephant is not merely a trunk plus legs plus a tail, the settlement is more than the sum of the individual issues it raises. These “issues” are, really just different ways of describing a single, overriding issue of law and policy—a new way to concentrate an intellectual property industry.

In this essay, I will argue for the critical importance of seeing the settlement all at …

Three Theories Of Copyright In Ratings, James Grimmelmann

Faculty Scholarship

Are ratings copyrightable? The answer depends on what ratings are. As a history of copyright in ratings shows, some courts treat them as unoriginal facts, some treat them as creative opinions, and some treat them as troubling self-fulfilling prophecies. The push and pull among these three theories explains why ratings are such a difficult boundary case for copyright, both doctrinally and theoretically. The fact-opinion tension creates a perverse incentive for raters: the less useful a rating, the more copyrightable it looks. Self-fulfilling ratings are the most troubling of all: copyright’s usual balance between incentives and access becomes indeterminate when ratings …

Trademark's Unfair Nominative Fair Use Defense: Protecting E-Commentary From Censorship By Corporate Monoliths, Tom Abeles

UC Law SF Communications and Entertainment Journal

This article is concerned with the problem when an in-house attorney with vast resources and experience sends a cease and desist letter to a smaller review site, who may not have the resources to hire an attorney. A modest website may surrender to the request of a powerful corporation, especially if the cease and desist letter was overly intimidating. Website owners who are unfamiliar with trademark law present an attractive target in this situation and may not see a nominative fair use defense, which is not strong enough to protect these types of users. Review sites providing useful commentary or …

A Modern Library Class Action: The Google Book Settlement And The Future Of Digital Books, Courtney Nguyen

UC Law SF Communications and Entertainment Journal

In this modern age, electronic readers, devices used to read digital copies of books, are fast saturating the market. The Google Books Library Project ("Project") is but one source of digital books, albeit a hotly contested one. Since inception the Project has encountered sundry problems, ranging from copyright disputes to accusations of monopoly and unfair competition. Though Google has settled with several author's groups, the legality of the Project and the resulting Settlement Agreement is still challenged.

This note posits that in light of the ongoing legal problems and other troubles the Project faces, a private settlement agreement is not …

Leaks, Leakers, And Journalists: Adding Historical Context To The Age Of Wikileaks, Sandra Davidson

UC Law SF Communications and Entertainment Journal

The United States government has charged Pfc. Bradley Manning with leaking to Julian Assange and WikiLeaks unprecedented amounts of classified information. Prior to publishing the Afghan War Logs, WikiLeaks provided the documents to The New York Times and other newspapers around the world. This article begins by reviewing how Manning reportedly leaked the documents about the wars in Afghanistan and Iraq, as well as diplomatic cables. It then traces decades of legal precedents surrounding leaks, leakers, and journalists in the United States, suggesting similarities and differences between the past and present. This article thus provides a historical context for the …

Trips Enforcement And Developing Countries, Peter K. Yu

American University International Law Review

No abstract provided.

Preliminary Report On Patent Literature, Search Methodology And Patent Status Of Medicines On The Who Eml 2009, Jon R. Cavicchi, Stanley P. Kowalski

Law Faculty Scholarship

Over the past several decades the World Health Organization (WHO) has produced the Essential Medicines List (EML) to assist countries in deciding what medicines should be essential and available in National Essential Medicine Lists.1 WHO, through the work of regional offices, supports nations using the EML to ensure the quality, availability, and affordability of pharmaceuticals required to promote and advance public health in nations across the globe. However in some cases, access to EML pharmaceuticals might be complicated by existing patents, i.e., where issued, patent rights might pose obstacles to access and inclusion in national EMLs. Indeed, in developed and …

Re-Imagining The Wheel: Seeking A Feasible International Regime To Protect Indigenous Cultural Expressions Through Trademark Law, Jimmy Pak

Global Business & Development Law Journal

No abstract provided.

Patents, Presumptions, And Public Notice, Timothy R. Holbrook

Sturm College of Law: Faculty Scholarship

Patents are peculiar legal instruments in that they contain both technical and legal information. This Janus-like nature of the document is important because they serve the legal purpose of affording the owner the right to exclude others from practicing the invention, and third parties need to be able to assess the scope of that right. At the same time, through the patent’s disclosure, the document is intended to contribute to the storehouse of technical knowledge. Superficially, patents are generally viewed through the eyes of the hypothetical person of ordinary skill in the art (PHOSITA), patent law’s “reasonable person.” Unfortunately, the …

The Continuing Vitality Of The Presumption Of Irreparable Harm In Copyright Cases, Andrew F. Spillane

Marquette Intellectual Property Law Review

Property has long enjoyed civil enforcement through a potent remedy: the permanent injunction. For decades, federal courts across the country roundly granted permanent relief upon finding infringement and a threat of future infringement of one type of property: copyrights. Beyond these showings, a prevailing plaintiff in a copyright infringement case would not have to prove the cornerstone of equitable relief—irreparable harm—to obtain an injunction. But after the U.S. Supreme Court¹s decision in eBay v. MercExchange, some courts have abandoned this truncated equitable inquiry. In its place, the lower federal courts now apply eBay's four-factor test to determine whether a copyright …

Using Intellectual Property To Secure Financing After The Worst Financial Crisis Since The Great Depression, Brian W. Jacobs

Marquette Intellectual Property Law Review

Ever since Thomas Edison first used his patent on the incandescent electric light bulb as collateral to secure financing to start his company, the General Electric Company, intellectual property has been able to be used as collateral. Although not immediately thought of when securing financing, using intellectual property as collateral has occurred ever since the late 1800’s with Thomas Edison. In recent years, using intellectual property as collateral to secure financing has become quite popular. However, as with most financing in general, the use of intellectual property as collateral has slowed due to the first recession in the twenty-first century. …

Balancing Acts: Using A Mixed Test To Ensure Better Results In Rule Of Reason Patent Misuse Analysis Within Section 337, Syvil Shelbourne

Marquette Intellectual Property Law Review

This Comment addresses the tensions faced by the Federal Circuit in reviewing the ITC’s patent misuse decisions that address § 337 claims. First, this Comment provides relevant background information by explaining § 337 itself, the administrative power and function of the ITC under § 337, and the Federal Circuit’s jurisdiction and deferential stance to the ITC regarding § 337 appeals. Subsequently, this Comment examines both per se and rule of reason patent misuse defenses, within the context of ITC appeals to the Federal Circuit of § 337 claims, by laying out their doctrinal frameworks as set out by the Federal …

Exhausting Extraterritoriality, John A. Rothchild

Law Faculty Research Publications

No abstract provided.

Clear But Unconvincing: The Federal Circuit's Invalidity Standard, David O. Taylor

Fordham Intellectual Property, Media and Entertainment Law Journal

The Federal Circuit’s standard for proving invalidity of patent claims is clear. The Federal Circuit always requires clear and convincing evidence to prove that a patent claim is invalid. The rationale behind this standard, however, is unconvincing. There are significant reasons to believe that the Patent Office rarely considers the most relevant prior art and that, instead, alleged infringers often find prior art that is more relevant than the prior art considered by the Patent Office. It defies logic to apply the clear and convincing burden where the Patent Office considered only prior art that is less relevant than the …

The Ethics Of Unbranding, Jeremy N. Sheff

Fordham Intellectual Property, Media and Entertainment Law Journal

This Essay explores the ethical implications of the phenomenon of "unbranding" that has recently been discussed in popular and scholarly literature. It compares two extant definitions of unbranding and examines each under alternative ethical theories of trademark law, specifically deontological and consequentialist theories. With respect to each of these theories, the Essay examines the ethical questions raised by the existence of asymmetric information between brand owners and consumers. This includes asymmetries not only with regard to information about products, but also with regard to information about consumer decision-making processes. The latter asymmetry presents conflicts between deontological and consequentialist conclusions regarding …

Pharmaceutical Patent Litigation Settlements: Balancing Patent & Antitrust Policy Through Institutional Choice, Timothy A. Cook

Michigan Telecommunications & Technology Law Review

Should a branded pharmaceutical company be allowed to pay a generic competitor to stay out of the market for a drug? Antitrust policy implies that such a deal should be prohibited, but the answer becomes less clear when the transaction is packaged as a patent-litigation settlement. Since Congress passed the Hatch-Waxman Act, which encourages generic manufacturers to challenge pharmaceutical patent validity, settlements of this kind have been on the rise. Congress, the Department of Justice, and the Federal Trade Commission have condemned these agreements as anticompetitive and costly to American consumers, but none of these bodies has been able to …

The People's Trade Secrets, David S. Levine

Michigan Telecommunications & Technology Law Review

The content of administered public school exams, modifications made by a government to its voting machines, and the business strategies of government corporations should be of interest to the public. At a minimum, they are the kinds of information that a government should allow its citizens to see and examine. After all, the public might have some legitimate questions for its government: Is that public school examination fair and accurate? Is that voting machine working so that my vote gets counted? To whom or what is that government agency marketing and are kickbacks involved? One would think that the government …