Marquette Intellectual Property Law Review

Articles

Vol. 17, No. 1, Winter

Beneficiaries of Misconduct: A Direct Approach to IT Theft
I. INTRODUCTION: THE IMPACT OF STOLEN IT ON COMPETITION II. ADDRESSING IT THEFT UNDER EXISTING LEGAL REGIMES A. Federal Trade Commission Act B. State Unfair Competition Laws C. National Trade Laws III. The Washington and Louisiana...
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The End of Ownership?
INTRODUCTION I. A BRIEF HISTORY OF COPYRIGHT LIMITATION: FIRST SALE A. The Grounds and Goals of Modern Copyright Law B. The Evolution of First Sale II. EXPANDING RESTRICTIONS, CONTRACTING USER RIGHTS A. Combining Copyright...
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Free Fashion
INTRODUCTION PART I: CURRENT STATE OF FASHION DESIGN PROTECTION A. Trademarks B. Design Patents C. Copyrights PART II: HISTORY OF FASHION DESIGN PROTECTION LEGISLATION A. Res Ipsa Loquitur B. Design Piracy Prohibition...
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The Immorality of Strict Liability in Copyright
I. INTRODUCTION II. THE TORT OF COPYRIGHT INFRINGEMENT III. Fair Use as a Fault Standard IV. SHIFTING THE BURDEN OF PROOF V. CONCLUSION "Abhorred monster ! Fiend that thou art ! The tortures of hell are too mild a vengeance for thy...
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The National Institutes of Health, Patents, and the Public Interest: An Expanded Rationale of Justice Breyer's Dissent in Stanford V. Roche
I. INTRODUCTION II. HISTORICAL BACKGROUND OF THE NATIONAL INSTITUTES OF HEALTH AND PATENT AUTHORITY A. Two Decades of Careful Planning Created the National Institutes of Health B. The Department of Health Education and Welfare...
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Reverse Engineering IP
INTRODUCTION PART I: SAMPLING PATENT TO REMIX COPYRIGHT: THEORY IN PRACTICE PART II: THE INTELLECTUAL PROPERTY MONOPOLIES A. Tale of Two Regimes B. Patent 1. Policy Considerations and the Law C. Copyright ...
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Vol. 16, No. 2, Summer

Contract + Tort = Property: The Trade Secret Illustration
I. INTRODUCTION 430 II. THESIS 430 III. ROADMAP 430 IV. ARITHMETIC LEGAL ANALYSIS ...
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Using Intellectual Property Rights to Create Value in the Coffee Industry
I. INTRODUCTION 284 II. A SHORT HISTORY OF THE COFFEE BEAN 285 III. GEOGRAPHICAL EXPANSION OF COFFEE PRODUCTION 286 IV. THE COFFEE CRISIS ...
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God in the Machine: Encryption Algorithms and the Abstract Exemption to Patentability
I. INTRODUCTION 483 II. THE SUM OF ITS PARTS: AN OVERVIEW OF DIGITAL RIGHTS MANAGEMENT TECHNOLOGY AND THE RELEVANT LAW 485 A. Is for Algorithms 488...
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Intellectual Property and Asian Values
I. INTRODUCTION 330 II. THE ASIAN VALUES DEBATE 336 A. Human Rights 336 B. Intellectual Property ...
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Intellectual Property and Asian Values
III. CHINDIASEAN Although Part I has shown that distinct values, approaches, or practices unlikely exist in the area of intellectual property protection and enforcement, questions remain regarding whether Asian countries will eventually develop...
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Structural Uncertainty: Understanding the Federal Circuit's Lead Compound Analysis
I. INTRODUCTION 401 A. Obviousness and Chemical Compounds 402 B. Development of Lead Compound Analysis 405 C. Current Application of the Lead Compound Analysis...
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Reviewing the (Shrinking) Principle of Trademark Exhaustion in the European Union (Ten Years Later)
I. INTRODUCTION 258 II. RECENT DECISIONS OF THE COURT OF JUSTICE OF THE EUROPEAN UNION ON TRADEMARK EXHAUSTION 262 A. Makro Zelfbedieningsgroothandel v. Diesel S.p.A....
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What Good Is Fame If You Can't Be Famous in Your Own Right? Publicity Right Woes of the Almost Famous
I. INTRODUCTION 467 II. THE LAW OF RIGHT OF PUBLICITY 468 A. Right to be Let Alone 469 B. Distinguishing Publicity from Privacy ...
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Vol. 16, No. 1, Winter

Websites and Intangible Asset Amortization under 26 U.S.C. (Section) 197: A Marriage That Bears Little Fruit
I. INTRODUCTION II. GOGOL AND MICROEVIL: THE CORPORATE TAKEOVER FROM THE SILICON VALLEY III. WEBSITES AS INTELLECTUAL PROPERTY A. Copyright 1. Copyright Requirements in General a. originality b. Fixation...
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Trade Dress Rights as Instruments of Monopolistic Competition: Towards a Rejuvenation of the Misappropriation Doctrine in Unfair Competition Law and a Property Theory of Trademarks
I. INTRODUCTION II. TRADEMARKS AND COMPETITION A. Trademark Law as Part of a Broader Unfair Competition Law B. Seeking the Limits of the Trademark Monopoly C. Trade Dress Rights, Product Differentiation, and Protection from...
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Unlocking the Genome: The Legal Case against Genetic Diagnostic Patents
I. INTRODUCTION II. PATENTING PROCESSES III. PATENTS ON GENETIC DIAGNOSTIC METHODS A. Science of Genes B. The History of Gene Patents C. Association for Molecular Pathology v. USPTO D. Patents on Mixed Diagnostic-Therapeutic IV....
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Deviated, Unsound, and Self-Retreating: A Critical Assessment of the Princo V. ITC En Banc Decision
I. INTRODUCTION II. PHILIPS CD-R/CR-RW DISPUTE AND THE EN BANC DECISION III. MISUSE ABRIDGED: DEVIATING FROM PRECEDENTS AND LEGISLATIVE HISTORY A. Over-Construing Previous Decisions B. Deviating from Supreme Court Precedent ...
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Liability for Trademark Infringement for Internet Service Providers
I. Introduction II. ISPs in Action A. ISPs in the Market Context B. online Auction Sites: eBay C. Search Engines: Google III. LEGISLATIVE BASIS A. The E-Commerce Directive B. European Trademark Law 1. Harmonization...
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A State-by-State Analysis of Inevitable Disclosure: A Need for Uniformity and a Workable Standard
I. INTRODUCTION II. TRADE SECRET LAW AND THE INEVITABLE DISCLOSURE DOCTRINE A. Introduction to Trade Secrets B. Introduction to Inevitable Disclosure III. THE UNIFORM TRADE SECRETS ACT IV. THE PEPSICO DECISION V. THE STATES' APPLICATIONS...
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Environmental Initiative and the Role of the USPTO'S Green Technology Pilot Program
I. INTRODUCTION II. THE "GREEN" PROBLEM III. ADDRESSING THE "GREEN" PROBLEM A. Government Intervention B. Domestic Considerations C. International considerations IV. RESEARCH FUNDING AND PATENT PROTECTION A. Research Funding ...
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Vol. 15, No. 1, Winter

I'm Still Your Baby: Canada's Continuing Support of U.S. Linkage Regulations for Pharmaceuticals
ABSTRACT INTRODUCTION I. REVIEW OF EMPIRICAL STUDIES A. Study 1 B. Study 2 C. Study 3 D. Interpretation II. ARE THE REGULATIONS A SUCCESS? A. Debate Preceding Bill C-91 B. "Original Policy Intent" C. "Patent-Specific"...
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Living with Patents: Insights from Patent Misuse
INTRODUCTION PART I: THE CONTEXT A. Patent Policy-The Economic Efficiency Paradigm, in Brief B. The Origins and Evolution of the Patent Misuse Doctrine PART II: THE ARGUMENT FOR ELIMINATING PATENT MISUSE A. The Current Situation-Why...
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A Sui Generis Regime for Traditional Knowledge: The Cultural Divide in Intellectual Property Law
ABSTRACT INTRODUCTION I. THE TRADITIONAL KNOWLEDGE QUESTION A. The Backlash against TRIPS B. What Is Traditional Knowledge? C. The Existing Legal Framework, Biopiracy and Traditional Knowledge D. Creating New Categories...
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Twitter or Tweeter: Who Should Be Liable for a Right of Publicity Violation under the CDA?
INTRODUCTION I. THE DEVELOPMENT OF THE RIGHT TO PUBLICITY. II. THE CDA AND ITS LEGISLATIVE HISTORY III. PURPOSE OF THE CDA. IV. EXAMINING THE JURISDICTIONAL SPLIT AS TO WHETHER [section] 230(E)(2) OF THE CDA INCLUDES BOTH STATE AND FEDERAL...
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The Continuing Vitality of the Presumption of Irreparable Harm in Copyright Cases
INTRODUCTION I. REFINING SECTION 502(A)'S GRANT OF POWER INTO THE TRADITIONAL RULE A. Section 502(a) Creating the Ambiguity with Permissive Plain Language B. Legislative History Deepening the Ambiguity with Conflicts...
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The Performance Rights Act: A Lack of Impact on a Transitioning Music Industry
INTRODUCTION I. THE MUSIC INDUSTRY--A BASIC BACKGROUND A. Recording Contracts B. Organizations II. THE COPYRIGHT ACT AND THE PERFORMANCE RIGHTS ACT A. The Copyright Act on the Music Industry B. The Performance Rights Act ...
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Vol. 15, No. 2, Summer

Canada and the Three-Step Test: A Step in Which Direction?
It is a real pleasure and honor to be here with you and to have an opportunity to talk about copyright reform in Canada. In particular, since this reform process is taking place with a particular international perspective in mind, it should provide...
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Coercion Will Not Protect Trademark Owners in China, but an Understanding of China's Culture Will: A Lesson the United States Has to Learn
ABSTRACT INTRODUCTION I. CHINA RESPONDS TO FOREIGN PRESSURE AND OVERHAULS ITS NATIONAL LEGAL SYSTEM TO PROTECT TRADEMARK RIGHTS A. Trademark Rights Protection in China: Awareness of the Risk B. Trademark Law Enforcement in China: Myth or Reality? II....
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Using Intellectual Property to Secure Financing after the Worst Financial Crisis since the Great Depression
INTRODUCTION I. BACKGROUND AND HISTORY OF USING INTELLECTUAL PROPERTY TO SECURE FINANCING A. Background On Patents B. Background on Trade Secrets C. Background on Trademarks D. Background on Copyrights E. Statutory...
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Can the Patent Office Be Fixed?
I. THE PROBLEM OF BAD PATENTS II. CAN THE PROBLEM BE SOLVED? A. What Won't Work 1. Preventing Fee Diversion 2. Fee-setting Authority 3. Retaining Patent Examiners 4. Outsourcing Search B. What Might...
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ACTA Fool Or: How Rights Holders Learned to Stop Worrying and Love 512's Subpoena Provisions
I. "2 FAST, 2 FURIOUS" OR INTRODUCTION II. "SOME FOOLS SLIPPED UP AND OVER STEPPED THEIR BOUNDARIES" OR: CURRENT U.S. LAW III. "IT SEEMS THEY WANNA FINGER PRINT ME AND GIMME SOME YEARS" OR: THE ACTA AGREEMENT IV. "YOU'LL BE LIKE LIL. JOHN...
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Balancing Acts: Using a Mixed Test to Ensure Better Results in Rule of Reason Patent Misuse Analysis within Section 337
INTRODUCTION I. SECTION 337, THE ITC, AND THE FEDERAL CIRCUIT A. What is Section 337? B. Section 337: The International Trade Commission and Patent Litigation C. Section 337 Appeals and the Federal Circuit II. PATENT MISUSE...
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MedImmune V. Genentech: A Game-Theoretic Analysis of the Supreme Court's Continued Assault on the Patentee
Abstract Introduction I. Background A. The Federal Circuit's Reasonable Apprehension Standard B. MedImmune, Inc. v. Genentech, Inc C. Federal Circuit's Response to MedImmune 1. SanDisk Corp. v. ST Microelectronics,...
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Intellectual Property Rights and Exclusive (Subject Matter) Jurisdiction: Between Private and Public International Law
INTRODUCTION A. Exclusive Jurisdiction Between Public and Private International Law B. Common Law and Civil Law Perspectives I. THESES PURPORTING THAT COMITY, THE ACT OF STATE DOCTRINE AND THE TERRITORIALITY PRINCIPLE ...
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Vol. 14, No. 2, Summer

Annual Intellectual Property Law Review Banquet Speech: Lessons Learned from Fifteen Years in the Trenches of Patent Litigation
I would like to thank Professor Irene Calboli, Professor Michael O'Hear, and the staff of the Marquette Intellectual Property Law Review for inviting me to speak at this year's banquet. When Professor Calboli first extended the invitation, I gladly...
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Possessing Trademarks: Can Blackstone or Locke Apply to Fast Food, Grocery Stores, and Virtual Sex Toys?
I. INTRODUCTION II. MCCURRY RESTAURANT V. MCDONALD'S CORP. AND GRUPO GIGANTE SA DE CV V. DALLO & CO.: TOWARD TREATING TRADEMARK AS REAL PROPERTY A. McCurry Restaurant v. McDonald's Corp. and the Problems with...
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The Thirteenth Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property Law: Innovation and Recovery
I. INTRODUCTION II. INNOVATION FOR RECOVERY A. The Diversity of Innovation 1. Economic Innovation 2. Regulatory Innovation 3. Governmental Innovation B. Pragmatic Innovation III. RECOVERY AND INNOVATION ...
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Quilt Artists: Left out in the Cold by the Visual Artists Rights Act of 1990
ABSTRACT INTRODUCTION I. COPYRIGHT PROTECTION FOR QUILTS AS "USEFUL ARTICLES" A. Copyrightable Subject Matter and Useful Articles B. Copyright Protection for Quilts II. VISUAL ARTISTS RIGHTS ACT OF 1990 A. Policy and Goals of VARA ...
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The Time and Place for "Technology-Shifting" Rights
ABSTRACT INTRODUCTION I. THE INTELLECTUAL PROPERTY CHALLENGE: MOTIVATING Innovation without Impeding Progress II. FINDING BALANCE: THE FUNDAMENTAL PROBLEM OF LEGISLATIVE IMPLEMENTATION A. The Federal Patent Statute: Rights and Exceptions ...
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An Uncomfortable Fit? Intellectual Property Policy and the Administrative State
The Southeastern Association of Law Schools ("SEALS") panel was conducted August 4, 2009, as part of SEALS' day-long Intellectual Property Workshop in West Palm Beach, Florida. Kali Murray ([dagger]) moderated the panel, which included Sapna Kumar,...
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Actual or Hypothetical: Determining the Proper Test for Trademark Licensee Rights in Bankruptcy
INTRODUCTION PART I A. Trademark Law vs. Bankruptcy Law: Competing Interests 1. Trademark Law Purpose a. Trademark Licensing b. Licensor Control 2. Bankruptcy Law Purpose a. Overview of Chapter 11...
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What about Know-How: Heightened Obviousness and Lowered Disclosure Is Not a Panacea to the American Patent System for Biotechnology Medication and Pharmaceutical Inventions in the Post-KSR Era
ABSTRACT I. INTRODUCTION II. HISTORICAL BACKGROUND OF OBVIOUSNESS III. THE NATURE OF BIOTECHNOLOGY MEDICATION AND PHARMACEUTICALS IV. OBVIOUSNESS IN OTHER PATENT SYSTEMS A. The Practice of the European Patent Office B. Obviousness in...
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Vol. 14, No. 1, Winter

Utilitarian Information Works - Is Originality the Proper Lens?
ABSTRACT INTRODUCTION PART I A. Information, Utilitarian Information Works, and the Knowledge-Based Economy B. The Role of Information Works in the Knowledge-Based Economy C. The Critical Need for Information D. Possible...
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Fixing Our Broken Patent System
ABSTRACT INTRODUCTION I. THE UNDERLYING ASSUMPTIONS A. Limiting Patentable Subject Matter to Concrete and Tangible Inventions Limits Both Blockage of Future Research and Innovation and Uncertainty in Patent Protection B....
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Generic Entry in a Rough Economy - Proposed Legislation May Ease Health Care Costs
I. Introduction A. Generics in the Current Economic Situation II. Where Are the Generics? A. The Hatch-Waxman Act and Paragraph IV Challenges B. Reverse Payments--The Pharmaceutical Companies' Response to Paragraph IV Challenges ...
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A Re-Examination of the Original Foundations of Anglo-American Trademark Law
ABSTRACT INTRODUCTION I. THE MODERN NARRATIVE OF TRADEMARK LAW II. A HISTORICAL OVERVIEW OF TRADEMARK LAW: ANOTHER LOOK A. The Early Development of Trademark Law in England 1. Fraud as the Normative Basis of the Early ...
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Complimentary Creation: Protecting Fan Fiction as Fair Use
Introduction I. Fan Fiction A. What Is Fan Fiction? 1. Fan Fiction Type 1: Referential Works 2. Fan Fiction Type 2: Participatory Works B. Fan Fiction: Commercial or Non-commercial? II. Courts' Treatment of Fan Fiction: Application...
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Online Auction House Liability for the Sale of Trademark Infringing Products
INTRODUCTION I. FACTS AND BACKGROUND OF TIFFANY, INC. V. EBAY AND LOUIS VUITTON MOET HENNESSY V. EBAY A. EBay's Business Model B. Tiffany's Quaff el with EBay C. LVMH's Troubles with EBay II. AVENUES FOR CONTRIBUTORY TRADEMARK...
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Vol. 13, No. 2, Summer

Annual Intellectual Property Law Review Banquet Speech: Three Cases: A Practitioner's Life in Copyright
When Professor Murray called and asked me to speak to this illustrious group, she mentioned that you might like to hear my observations about how IP law has evolved over the course of my career and a little bit about my career itself. It is always...
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Not All Grace Periods Are Created Equal: Building a Grace Period from the Ground Up
INTRODUCTION I. VALUE OF GRACE PERIODS A. Cultivating Innovation B. Innovation and Growth: The Roles of University, Industry, and Government 1. Protecting Innovation at the University Level 2. University-Industry Links...
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Rethinking Patent Fraud Enforcement in a Reform Era
INTRODUCTION I. A COMPROMISED STANDARD: THE CURRENT DOCTRINE OF INEQUITABLE CONDUCT A. Compromised Implementation: Institutional Conflict in the Assessment of Inequitable Conduct B. Compromised Authority of the Public Interest II....
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The Twelfth Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property Law: The Copyright Revision Act of 2026
As someone who teaches and writes about copyright law, I end up straddling two different worlds. On the one hand, I really do need to understand and be able to teach the details of the copyright statute and the case law construing it. My students need...
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Fixing Continuing Application Practice at the USPTO
INTRODUCTION I. CONTINUING PATENT APPLICATION PRACTICE A. Continuing Patent Applications B. Differing Views of Continuing Application Practice 1. Lemley and Moore's View of Continuing Application Practice a. Five Alleged Problems...
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Trademark Fair Use: Braun(R) versus the Bunny
INTRODUCTION I. TRADEMARKS--LOGOS AND PRODUCT DESIGN A. Descriptive Fair Use II. NOMINATIVE FAIR USE III. APPLICATION OF NOMINATIVE FAIR USE BEYOND PLAIN-TEXT WORD MARKS CONCLUSION INTRODUCTION The Author was rather tickled (no...
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Toward a More Reliable Fact-Finder in Patent Litigation
INTRODUCTION I. HISTORICAL DEVELOPMENT OF SEVENTH AMENDMENT JURISPRUDENCE II. THE SEVENTH AMENDMENT IN THE CONTEXT OF PATENT TRIALS III. JUDGING JUDGES AND JURIES: WHAT THE STATISTICS SUGGEST IV. WHERE DO WE GO FROM HERE? FROM PEER-TO-PATENT ...
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Emerging Scholars Series: Cross-Border Injunctions in U.S. Patent Cases and Their Enforcement Abroad
INTRODUCTION I. CROSS-BORDER INJUNCTIONS IN U.S. COURTS--A QUANTITATIVE VIEW II. CROSS-BORDER INJUNCTIONS IN U.S. COURTS--A QUALITATIVE VIEW III. ENFORCEMENT OF U.S. INJUNCTIONS ABROAD A. Enforcement of an Injunction B. Enforcement...
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Vol. 13, No. 1, Winter

Navigating the Safe Harbor Rule: The Need for a DMCA Compass
INTRODUCTION I. HISTORICAL OVERVIEW OF COPYRIGHTS A. Early Evolution Due to Modern Technology B. Entrance of the Digital Millennium Copyright Act C. Evolution After the Digital Millennium Copyright Act II. VIDEO SHARING PHENOMENON A. YouTube ...
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What Goes around, Comes Around: How Indian Tribes Can Profit in the Aftermath of Seminole Tribe and Florida Prepaid
INTRODUCTION I. PATENT LAW II. EXPERIMENTAL USE EXCEPTION III. STATE SOVEREIGN IMMUNITY IV. TRIBAL SOVEREIGNTY V. TRIBAL SOVEREIGN IMMUNITY VI. DISCUSSION CONCLUSION INTRODUCTION The Bureau of Indian Affairs, a federal agency, directly services...
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International Legal Protection of Trademarks in China
ABSTRACT INTRODUCTION I. THE RATIFICATION OR APPROVAL OF TREATIES AND AGREEMENTS IN CHINA II. FORCE AND EFFECT OF TREATIES AND AGREEMENTS UNDER CHINESE LAW III. MULTILATERAL TREATIES AND AGREEMENTS A. Paris Convention for the Protection of Industrial...
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Nanobiotechnology, Synthetic Biology, and RNAi: Patent Portfolios for Maximal Near-Term Commercialization and Commons for Maximal Long-Term Medical Gain
ABSTRACT INTRODUCTION I. PRESENT AND PROBABLE FUTURE SCIENTIFIC KNOWLEDGE AND TECHNOLOGICAL CAPACITIES A. The Present and Near Future: Incremental Progress B. In 20-to-40 Years: Revolutionary Progress, Effecting Leaps Forward in Medicine ...
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The Eleventh Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property; Rethinking the Role of Clinical Trial Data in International Intellectual Property Law: The Case for a Public Goods Approach
INTRODUCTION I. EXPORTING CLINICAL TRIAL DATA EXCLUSIVITY REGIMES FROM DEVELOPED TO DEVELOPING COUNTRIES A. The Egregiously High Costs and Risks of Clinical Trials B. The Domestic Response C. The Drive for Global Protection of Clinical Trial...
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Vol. 12, No. 2, Summer

Intellectual Property Rights and Global Warming
INTRODUCTION I. THE CURRENT INTELLECTUAL PROPERTY SYSTEM AND ITS IMPACT ON GLOBAL WARMING A. Rationales for Intellectual Property Protection B. General Provisions C. Morality and Ordre Public Provisions 1. Patents ...
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Geographical Indications: A Discussion on the TRIPS Regulation after the Ministerial Conference of Hong Kong
INTRODUCTION I. HISTORICAL BACKGROUND, DEFINITION, AND INTERNATIONAL REGULATION. A. Historical Background B. Definition C. The International Regulation of GIs II. THE MULTILATERAL REGISTER FOR WINES AND SPIRITS A. Background and Proposals ...
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I Have a Secret? Applying the Uniform Trade Secrets Act to Confidential Information That Does Not Rise to the Level of Trade Secret Status
INTRODUCTION I. THE HISTORY AND DEVELOPMENT OF TRADE SECRET LAW A. Sources of Trade Secret Law B. Classification of Confidential Information II. HOW COURTS HAVE DETERMINED WHETHER THE UTSA ABROGATES CLAIMS A. Category One Analysis ...
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Kewanee Revisited: Returning to First Principles of Intellectual Property Law to Determine the Issue of Federal Preemption
INTRODUCTION I. THE HISTORICAL AND LEGAL CONTEXT OF KEWANEE A. The Sears/Compco Doctrine B. Applying the Sears/Compco Doctrine to Trade Secret Cases II. KEWANEE DE-CONSTRUCTED A. Argument One: The Limited Scope of Trade Secret Law ...
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The Experimental Use Exception and Undergraduate Engineering Projects
INTRODUCTION I. CAPSTONE SENIOR DESIGN PROJECTS A. The Accreditation Board for Engineering and Technology B. Exemplary Capstone Senior Design Projects 1. Typical Characteristics of Capstone Senior Design Projects ...
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Phillips V. AWH, Corp., a Doctrine of Equivalents Case?
INTRODUCTION I. IMPORTANT LEGAL DOCTRINES IN KIRIN-AMGEN AND PHILLIPS A. History of Claim Interpretation in the United States B. The Development of Problems with the Doctrine of Equivalents II. THE CASES A. Phillips v. AWH,...
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Vol. 12, No. 1, Winter

Antitrust Liability for Refusal to License Intellectual Property: A Comparative Analysis and the International Setting
INTRODUCTION I. LEGAL BACKGROUND: OVERLAPS AND DISTINCTIVENESS OF THE EUROPEAN UNION AND UNITED STATES ANTITRUST SYSTEMS II. COMPARING THE ANTITRUST CASE LAW AND POLICY IN THE EUROPEAN UNION AND THE UNITED STATES A. The European...
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Speaking Words of Wisdom: Let It Be the Reexamination of the Human Embryonic Stem Cell Patents
"Science is a first-rate piece of furniture for a man's upper chamber, if he has common sense on the ground-floor." (1) INTRODUCTION I. WHAT ARE STEM CELLS? II. THE STEM CELL PATENTS III. REEXAMINATION IV. SHOULD THE PATENTS REMAIN VALID? ...
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What Do We Do with a Doctrine like Merger? A Look at the Imminent Collision of the DMCA and Idea/expression Dichotomy
INTRODUCTION I. A BRIEF OVERVIEW OF COPYRIGHT FUNDAMENTALS A. The Constitutional and Statutory Requirements of Copyright B. Infringement 1. The Arnstein and Ordinary Observer Tests 2. The Extrinsic/Intrinsic Test 3. Abstraction-Filtration-Comparison ...
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In Re Seagate: Did It Really Fix the Waiver Issue? A Short Review and Analysis of Waiver Resulting from the Use of a Counsel's Opinion Letter as a Defense to Willful Infringement
INTRODUCTION This past summer the Federal Circuit, responding to a writ of mandamus, attempted to fix the quagmire nearly a quarter century in the making that started with Underwater Devices (1) and culminated most recently in In re Echostar. (2)...
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Medimmune, Microsoft, and KSR: The United States Supreme Court in 2007 Tips the Balance in Favor of Innovation in Patent Cases, and Thrice Reverses the Federal Circuit
INTRODUCTION "The Congress shall have Power ... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." (1) Pursuant to this power,...
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Wagging the Dog? Reconsidering Antitrust-Based Regulation of IP-Licensing
INTRODUCTION I. TTBER AND ANTITRUST GUIDELINES A. Articles 81(1) and (3) ECT and Block Exemption Regulations B. The New TTBER 1. Market-Share Thresholds 2. Hardcore Restrictions-Article 4 TTBER 3. Excluded restrictions-Article...
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Vol. 11, No. 2, Summer

Creating Consumer Confidence or Confusion? the Role of Product Certification Marks in the Market Today
INTRODUCTION I. CERTIFICATION MARKS DEFINED A. The UL Mark B. Competition from New Certification Marks II. CONFORMITY ASSESSMENT REGULATIONS IN GENERAL III. USE OF CERTIFICATION MARKS AND THE IMPACT OF CHANGES IN CONFORMITY ASSESSMENT...
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Finding Common Ground in the World of Electronic Contracts: The Consistency of Legal Reasoning in Clickwrap Cases
INTRODUCTION I. THE VALIDITY OF ELECTRONIC TRANSACTIONS AND THE REMAINING QUESTION OF ASSENT IN CLICKWRAP A. UETA and the Enforceability of Electronic Documents B. The Impersonal Nature of Clickwrap: A "Meeting of the Minds"...
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Copyright's Empire: Why the Law Matters
INTRODUCTION I. LAW AND ECONOMICS ANALYSIS IN COPYRIGHT A. Positive Externalities in Markets for Information Goods B. Information Goods: The Cause of Market Failures C. Correction of Market Failures Through Institutional Intervention II....
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Fixing through Legislative Fixation: A Call for the Codification and Modernization of the Staple Article of Commerce Doctrine as It Applies to Copyright Law
INTRODUCTION I. THE HISTORY OF THE STAPLE DEFENSE A. Early Copyright Cases Tackle Dual-Use Technologies 1. Sony: The Technology of Time-Shifting a. The District Court's Opinion: The Staple Defense Sneaks into Copyright Law ...
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The Extended Protection of "Strong" Trademarks
INTRODUCTION I. THE FUNCTION OF TRADEMARKS: A TRADITIONAL LAW AND ECONOMICS APPROACH II. THE LEGAL EVOLUTION AND THE NEW PROTECTED FUNCTION OF TRADEMARKS III. TRADEMARK PROTECTION AND PRODUCT QUALITY IV. TRADEMARK PROTECTION, PRODUCT...
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Intellectual Property, Competition Rules, and the Emerging Internal Market: Some Thoughts on the European Exhaustion Doctrine
INTRODUCTION I. THE EMERGENCE OF THE EXHAUSTION RULE A. Territorial Restrictions and Competition Law B. Technology Transfer and Vertical Restraints II. BLOCK EXEMPTIONS AND EXHAUSTION A. Scope of Application for Intellectual Property...
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Vol. 11, No. 1, Winter

Introduction
New technology has made copyright enforcement difficult to achieve. (1) Technology has made it possible to transmit, reproduce, and obtain copyrighted materials around the globe without great monetary investment. The Internet and digital technology...
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I. Available Remedies for Copyright Infringement
The TRIPs Agreement was the first multilateral agreement to establish a comprehensive set of remedies. With slight differences, remedies available under national copyright statutes contain all the provisions contained in the TRIPs Agreement. Consequently,...
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II. Place of Infringement and Questions of Choice of Law
When there is copyright infringement abroad, there are several steps to be taken in order to claim protection overseas. The first step is to locate the country where protection is sought. Even if this task does not represent a problem in principle,...
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III. Exercising Rights in the Right Forum - Questions of Jurisdiction
Taking jurisdiction over acts occurring abroad may be controversial. The considerations to be discussed here cover European and common law approaches; while both systems have remarkable differences reflected in the difficulties in achieving an international...
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IV. the Failed Hague Draft Convention-An Explanation of Its Ineffective Negotiations
A proposed mechanism for enforcing preliminary injunctions or judgments in copyright actions may be possible despite the failure of the proposed Hague Draft Convention. It is first important, though, to consider how and why those negotiations failed....
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V. Proposed Mechanism
As was previously mentioned, the proposed mechanism offers three alternative paths for a solution--making provisions for possible failures. The first path is based on an international convention on jurisdiction and recognition of judgments and decrees...
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VI. Probable Extraterritorial Effects and a Public Choice Democracy Perspective
There are several issues that have to be addressed or considered in the process of negotiating the enforcement mechanism. These issues are related to certain consequences the mechanism will produce. There are questions, not only of transnational enforcement,...
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Conclusion
Copyright and neighboring rights exist because there is a public purpose behind them. This public purpose is derived from the will of each country's legislature to promote the creation of useful works. (271) For the purposes of this Article, it has...
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The Proper Scope of Patentability in International Law
INTRODUCTION I. THE ENVIRONMENTAL AND PUBLIC HEALTH CONSEQUENCES OF PATENTED TECHNOLOGY II. THE SCOPE OF PATENTABILITY A. A Brief Examination of Patentable Subject Matter in the United States 1. Formal Requirements 2. The Substantive Scope...
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What Is Patentable Subject Matter? the Supreme Court Dismissed LabCorp V. Metabolite Laboratories, but the Issue Is Not Going Away
Introduction Patent law seeks to strike a balance regarding patentable subject matter between overprotection, which can impede the free exchange of ideas, and underprotection, which can lessen the incentive to invent. (1) Thus, what actually constitutes...
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Introduction
Why do we have trade secrets? This was the fifty billion (1) dollar question I was asking myself in a trade secrets trial as the judge asked, "I assume that you'll have evidence of irreparable injury to obtain an injunction if the jury finds trade...
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I. Trade Secrets and Their History
The history of trade secret law is an interesting study in how certain intellectual property rights have developed. Whereas copyright and patent law in the United States find legal justification in the Constitution (14) and implementing federal statutes,...
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II. Property as a Potential Justification
Any normative justification of trade secrets must begin with consideration of whether trade secrets are property. To many, if trade secrets are property, then laws protecting them are normatively justified. Thus, the question of whether or not trade...
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III. the Justification for Trade Secrets
This Part addresses--from strongest to weakest--three alternative normative justifications for the bundle of rights associated with trade secret law: economic justifications, philosophical justifications, and populist justifications. A. Economic...
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IV. the Marginal Utility of Trade Secrets
Trade secret law provides (a) protection in addition to contract or tort theories, and (b) remedies not offered by the common law. Thus, economic analysis of trade secret law must be confined to trade secret law in order to be useful. In other words,...
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Appendix: An Illustrative Example
An example of the analysis in Parts III and IV will help illustrate the points made. Assume that a secret is worth $1000 to a company (O), but the same information is worth only $500 if the information were also in the hands of a competitor (C). Presumably,...
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Winner of the Computer Law Association 2006 Information Technology Law Writing Competition: Gone in a Blink: The Overlooked Privacy Problems Caused by Contactless Payment Systems
INTRODUCTION I. BANKS, MERCHANTS, AND CONSUMERS: PRIMED FOR CONTACTLESS PAYMENT TECHNOLOGY A. RFID in a Contactless Payment System Nutshell B. Why Is Contactless Payment Technology Appealing? II. THE PRIVACY LANDSCAPE A. Very Little Static Has...
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Breaking the Law to Break into the Black: Patent Infringement as a Business Strategy
INTRODUCTION I. APPLICABILITY OF U.S. PATENT INFRINGEMENT LAWS TO CORPORATIONS A. Current U.S. Patent Laws Deterring Unintentional Infringement B. Current U.S. Patent Laws Deterring Willful Infringement II. ANALYSIS OF INADEQUATE PROTECTIONS...
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