Northwestern Journal of Technology and Intellectual Property

Articles

Vol. 17, No. 2, 2020

The Cost of Coercion: Is There a Place for "Hard" Interventions in Copyright Law?
I. IntroductionThe author's financial wellbeing is a central concern of the copyright system. For this reason, copyrights are generally vested initially with the author.1 Granting the author a bundle of exclusive property rights does not guarantee pecuniary...
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Same Claim Construction Standard: Effifficiency or More Chaos?
INTRODUCTIONOn October 11, 2018, the United States Patent and Trademark Office (PTO) published the final draft of its rules for interpreting unexpired patent claims in inter partes review (IPR), post-grant review (PGR), and the transitional program for...
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Data Security in a Global Economy
IntroductionSocial media corporations make up some of the largest companies in the world, and they work on a global scale. Data ownership and utilization make up a large portion of their revenues, yet the true value in this information can only be fully...
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Sustainable and Unchallenged Algorithmic Tacit Collusion
IntroductionAs one law firm noted in 2018, "[p]rice algorithms are clearly the 'talk of the town' in the European competition law community these days."1 During the summer of 2018, the law firm noted,[B]oth the Federal Cartel Office and the Austrian...
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Vol. 16, No. 4, 2019

Hacking: The Naked Age Cybercrime, Clapper & Standing, and the Debate between State and Federal Data Breach Notification Laws
"When you say I don't care about the right to privacy because I have nothing to hide, that is no different than saying I don't care about freedom of speech because I have nothing to say or freedom of the press because I have nothing to write."1- Edward...
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Throw Away the Key, or the Key Holder? Coercive Contempt for Lost or Forgotten Cryptocurrency Private Keys, or Obstinate Holders
IntroductionThe financial and legal worlds have struggled to adapt to the sudden popularity of cryptoassets like Bitcoin and Ethereum.2 Although much of the legal concern created by cryptoassets has focused on the implications of their sale, trading,...
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Behind the Low Originality of Chinese Reality TV Shows: Copyright Protection and Government Regulation for Localization
(ProQuest: ... denotes non-US-ASCII text omitted.)IntroductionWhat is the most popular TV program genre in China now? The answer is undoubtedly reality TV shows. There were more than 200 reality TV shows being put on air through Chinese satellite TV...
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Dancing with Our Hands Tied: An Imbalanced Focus on Drugs for Orphan Disease Research
INTRODUCTIONCurrent efforts to foster research on orphan diseases are focused largely on pharmaceutical treatments. Currently, there are roughly 770 FDA approved pharmaceutical treatments designated for orphan diseases.1 The number of treatments has...
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Vol. 16, No. 3, 2019

Henry Darger's "Realms of the Unreal"-But Who in the Realm Is Kiyoko Lerner?
Introduction"You can throw them away," Henry Darger reportedly said to his landlord only weeks before his death in 1973.3 The reclusive janitor was referring to his life's work: a collection of drawings, writings, paintings, and collages authored4 by...
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Copyright Law as an Engine of Public Interest Protection
INTRODUCTIONFair use is an awkward creature. It has been hailed as a legal invention that is essential for human and societal development.1 At the same time, fair use has become something of a legal monster, causing no end of troubles owing to its vague...
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The Waiting Is the Hardest Part: DOES LONGER PATENT PENDENCY MEAN MORE VALUABLE PATENTS?
IntroductionThe United States Patent and Trademark Office (USPTO) is one of the busiest patent offices in the world, fielding approximately 500,000 newlyfiled utility applications annually, and receiving more certified mail per day than any other single...
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Vol. 17, No. 1, 2019

The Itc Is Here to Stay: A Defense of the International Trade Commission's Role in Patent Law
IntroductionThe International Trade Commission ("ITC") is an "independent, nonpartisan, quasi-judicial federal agency that fulfills a range of trade- related mandates."1 Responsible for investigating unfair trade practices and taking remedial action,2...
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Sculpture, Industrial Design, Architecture, and the Right to Control Uses of Publicly Displayed Works
IntroductionThe right of copyright owners to control use of their publicly displayed work is not a rational construct. Similarly, the copyright code's definitions of pictorial, graphic, and sculptural works on the one hand, and architectural works on...
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Patently Uncertain
I spent twenty-two years on the Federal Circuit and nine years since dealing with patent cases, and I cannot predict in a given case whether eligibility will be found or not found. If I can't do it, how can bankers, venture capitalists, business executives...
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Claiming Admissions Data Trade Secrets- Taking Advantage of Statutory Ambiguity?
IntroductionThe release of documents in the most recent legal battle surrounding affirmative action has shed light on the shadowy world of elite college admissions1 and has brought to question measures taken by academic institutions to shield their admissions...
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Vol. 16, No. 1, 2018

13th Annual Northwestern Journal of Technology and Intellectual Property Symposium: Panel Discussion: Medical Technology
LAURA PEDRAZA-FARIÑA: I'm really excited to moderate this discussion, which is going to center mainly around Section 101 (35 U.S.C. 101) kinds of legal issues, and if we have time we can branch out to talk about inter partes review. So, let me start...
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Moving beyond Consent for Citizen Science in Big Data Health and Medical Research
I. IntroductionConsent has been the cornerstone of the personal data privacy regime.1 It authorizes the collection, use, and processing of personal data. When it comes to health and medical research, consent is a prerequisite for the intervention in...
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Vol. 15, No. 3, 2018

Building a Better Hal 9000: Algorithms, the Market, and the Need to Prevent the Engraining of Bias
IntroductionThe technologies of collection and analysis that fuel "Big Data" are being used in nearly every sector of society and the economy;1 in fact, data collection in large parts of the developed world is nearly ubiquitous.2 Unsurprisingly, much...
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Mutating Marks: Refusing to Lose the Trademark Trail
I. TRADEMARK BACKGROUNDTrademarks have a long past, rooted in product association with makers and owners, as-for example-ancient artists signed their pottery and early ranchers wielded their cattle prods.1 The law of trademarks naturally aligns with...
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Vol. 16, No. 2, 2018

Social Contract: The Distributive Significance of a Native Nation's Patent Agreement with Allergan
IntroductionIn 2017, pharmaceutical heavyweight Allergan announced an unusual contract with the Saint Regis Mohawk Tribe of upstate New York.2 Allergan was transferring ownership of its patent in the dry eye drug Restasis to the Tribe in exchange for...
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"Can I Get Your Digits?": Illegal Acquisition of Wireless Phone Numbers for Sim-Swap Attacks and Wireless Provider Liability
I.INTRODUCTIONThieves are stealing millions of dollars from wireless customers thousands of times each month.2 The mechanism of theft is known as a SIMswap attack: a thief gains unauthorized control of a wireless customer's phone number to use SMS-based...
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Top Tens in 2017: Patent, Trademark, Copyright, and Trade Secret Cases
PATENTFirst Sale3. Can I pass these amazing improvements to my children?No. Your body and its biological and technological systems are patented by Colonial Genetics and may not be passed on without permission.John Scalzi, Old Man's War2To the contrary:...
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Vol. 14, No. 3, 2017

Top Tens in 2015: Patent, Trademark, Copyright and Trade Secret Cases
I. PatentA.Teva Pharm. USA, Inc. v. Sandoz, Inc.3¶1 The key issue in many patent cases is interpretation of the relevant patent claim. A broad or narrow reading of the claim may control whether the patent is valid and whether there has been infringement....
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Double Patenting: Follow-On Pharmaceutical Patents That Suppress Competition
1850: Samuel Morse "could not take out a subsequent patent for a portion of his first invention [the telegraph], and thereby extend his monopoly beyond the period limited by law."11894: "[N]o patent can issue for an invention actually covered by a former...
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The Effects of Alice on Covered Business Method (CBM) Reviews
I. SUMMARYMany studies have tracked aspects of Patent Trial and Appeal Board (PTAB) outcomes, but none have specifically analyzed Covered Business Method (CBM) outcomes at both the institution and final decision stages by ground.1 Practitioners, policymakers,...
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Got Bacon?: The Use of A Bioethics Advisory Board in Assessing the Future of Transgenic Animal Technology
INTRODUCTIONWould you feed your baby genetically modified human breast milk produced by a cow? What about genetically modified goat milk that combats diarrhea in children? Would your opinion change about these issues if this technology improves the world's...
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Vol. 15, No. 2, 2017

The Case against Property Rights in Old Intangible Indigenous Cultural Property
Note-This article expands on a chapter to be published as "The Failed Case for Property Rights in Intangible Indigenous Cultural Property", in Christoph Antons and William Logan (eds.) Intellectual Property, Cultural Property and Intangible Cultural...
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The Reality of Augmented Reality and Copyright Law
IntroductionDigital technology continually evolves in a variety of mediums. Innovation increases one's ability to express ideas and facts through new technological facets. In the realm of augmented reality ("AR"), this has taken on different forms by...
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Top Tens in 2016: Patent, Trademark, Copyright and Trade Secret Cases
I. PATENTA. Halo Elecs., Inc. v. Pulse Elecs., Inc.1Several notable recent Supreme Court cases in patent law tend to weaken the power of patent holders. Alice,2 along with this term's Cuozzo and Apple decisions cut back on patentable subject matter....
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Patenting Frankenstein's Monster: Exploring the Patentability of Artificial Organ Systems and Methodologies
IntroductionEvery Frankenstein movie, book, comic strip, and television show demonstrates that, in biotechnology, "just because something can be done does not mean that it should be done."1 Scientific progress in the fields of tissue engineering and...
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Practicing Law without Legal Training: The Expanded Authorization of Non-Lawyers under the AIA
INTRODUCTIONConsider a student who graduates in the top 20% of his class. He is an enterprising individual and, rather than working for a law firm, elects to start his own practice after passing the bar. After several months of counseling small clients...
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Vol. 14, No. 2, 2016

The Angel on Your Shoulder: Prompting Employees to Do the Right Thing through the Use of Wearables
INTRODUCTIONIt is an age-old philosophical question: are people ethical just because our human nature desires such nobility, or do we pay attention to ethics only from the fear of being caught? Memorably posed by Plato in The Ring of Gyges,1 the provocateur...
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Fiduciary Duties of Directors When Managing Intellectual Property
I. FIDUCIARY DUTIES OF DIRECTORSUnder Delaware corporate law, directors of a corporation are required to perform their duties to the corporation with due care, loyalty, and in good faith. Due care requires that the directors make informed decisions,...
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Vol. 14, No. 1, 2016

Making Civilian Drones Safe: Performance Standards, Self-Certification, and Post-Sale Data Collection
I. INTRODUCTION¶1 The Federal Aviation Administration ("FAA") acknowledges that its traditional processes for assuring the safety of airplanes and helicopters are unsuitable for the growing number of small drones:[T]he FAA's current processes for issuing...
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3D Printing: Digital Infringement & Digital Regulation
INTRODUCTION¶1 Guns. Body parts. Implants for medical uses. Apparel and fashion accessories. Jewelry. Artwork. What do these all have in common? Each is a 3D printed object that can quickly and easily be printed by Do It Yourself ("DIY") consumers.1...
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Press Clause and 3D Printing
"Progress of human civilization in the area of defining human freedom is not made from the top down. No king, no parliament, no government ever extended to the people more rights than the people insisted upon."2-Terence McKenna.3¶1 Technology is progressing...
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Vol. 13, No. 3, 2015

All Your Air Right Are Belong to Us
INTRODUCTION¶1 Privacy and property rights have a unique relationship with each other. The two subjects do not overlap in many contexts, but they intersect in some very important ways. This Article focuses on one of those areas of intersection, that...
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Hacking the Anti-Hacking Statute: Using the Computer Fraud and Abuse Act to Secure Public Data Exclusivity
MINTRODUCTION¶1 Work smarter, not harder. Perhaps no other saying better captures the era of hyperproductivity and automation in which we live. Titles such as 'Top Ten Hacks to Avoid Paywalls,' 'Five Ways You're Wasting Your Time,' and 'One Weird Trick'...
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Top Tens in 2014: Patent, Trademark, Copyright and Trade-Secret Cases
INTRODUCTION¶1 The Supreme Court decided more patent-related cases in 2014 than in any previous year.1 It lowered the standard for awarding fees in patent cases,2 clarified that the patent holder carries the burden of showing infringement even in declaratory...
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In Cyclobenzaprine, an Objective Failure to Reach a Long-Felt Need in Secondary Considerations Jurisprudence
INTRODUCTION¶1 The process of determining what inventions are deserving of a patent has been fraught with difficulty since the idea of awarding exclusive rights to an invention was implemented. In order to determine which inventions are important enough...
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The Aftermath of Louis Vuitton: Why Bringing a Trademark Infringement Case in the ITC Is a Viable Option
INTRODUCTION¶1 The United States Tariff Act of 1930 (hereinafter "the Act"), 19 U.S.C. § 1337, prohibits unfair acts and unfair methods of competition involving the importation or sale of infringing goods in the United States.1 The Act specifically prohibits...
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Vol. 13, No. 2, 2015

A Target to the Heart of the First Amendment: Government Endorsement of Responsible Disclosure as Unconstitutional
I. INTRODUCTIONBrian Krebs, a former reporter for the Washington Post now known for his blog Krebs on Security,1 remained relatively unknown for most of his career. But in December 2013, Mr. Krebs decided to do something that would affect millions of...
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Vol. 13, No. 1, 2015

Exclusive Rights to Saving the Planet: The Patenting of Geoengineering Inventions
I. INTRODUCTION¶1 The Fifth Assessment Report of the United Nations' Intergovernmental Panel on Climate Change warns that the planet is rapidly reaching a dangerous level of warming.1 Furthermore, it reports that much of the carbon dioxide causing this...
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The New Wild West: Preventing Money Laundering in the Bitcoin Network
I. INTRODUCTION¶1 Bitcoin1 is the most popular, decentralized virtual currency in the world.2 Created by the enigmatic Satoshi Nakamoto in 2009,3 Bitcoin's propagation and use has caused heated controversy.4 Businesses both large and small have begun...
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Protecting Johnny Football®: Trademark Registration for Collegiate Athletes
INTRODUCTION¶1 In 2012, Johnny Manziel became the first freshman to win the Heisman Trophy, adding to his growing notoriety as one of the most exciting quarterbacks in college football. As media scrutiny and expectations intensified, Johnny Manziel,...
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You're Fired: Pack Everything but Your Social Media Passwords
INTRODUCTION¶1 The global proliferation of social media has transformed these online platforms- once used almost exclusively by young, tech-savvy Millennials1-into transcontinental mediums of communication and expression. Through social media, dictatorships...
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Vol. 12, No. 4, 2014

More Than the Sum of All Parts: Taking on IP and IT Theft through a Global Partnership
I. INTRODUCTIONThis Article describes some of the efforts, both within and outside the United States, to control the epidemic of intellectual property and information technology (IP and IT) theft. Those engaged in the battle include prosecutors and judges,...
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Inhibiting Patent Trolling: A New Approach for Applying Rule 11
INTRODUCTIONThere has been an alarming rise in the number of litigious entities-commonly referred to as patent trolls or non-practicing entities (NPEs)-that make no products but file dubious patent infringement lawsuits merely to extract money from commercially...
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E-Commerce Clones: Entrepreneurship or Intellectual Property Theft?
AN INTRODUCTION TO E-COMMERCEElectronic commerce (e-commerce) refers to any commercial activity in which an electronic communication medium plays a central role in the exchange of money for goods and services.* 1 First made available to consumers in...
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Vol. 12, No. 3, 2014

Finding Privacy in a Sea of Social Media and Other E-Discovery
I. INTRODUCTION¶1 Electronic discovery is one of the biggest challenges our courts face today.1 Its vast scope complicates the system in which relevant information is exchanged, and its expense can be overwhelming.2 Given the very low number of cases...
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Top Tens of 2013: Patent, Trademark, Copyright, and Trade Secret Cases
INTRODUCTION¶1 In 2013, the Supreme Court continued its recent concentration on patent law. The Court decided four patent cases: it held isolated human DNA is not patentable; lawsuits alleging legal malpractice in patent cases are to be litigated in...
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Vol. 12, No. 2, 2014

Digital Forensic Evidence in the Courtroom: Understanding Content and Quality
¶1 With the widespread permeation of continually advancing technologies into our daily lives, it is inevitable that the product of those technologies, i.e. digital information, makes its way into the courtroom. This has largely occurred in the form of...
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Vol. 12, No. 1, 2014

Lawful Hacking: Using Existing Vulnerabilities for Wiretapping on the Internet
I. INTRODUCTION¶1 For several years, the FBI has warned that newer communications technologies have hindered its ability to conduct electronic surveillance.6 Valerie Caproni, General Counsel of the FBI, said in Congressional testimony:Methods of accessing...
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Pliers and Screwdrivers as Contributory Infringement Devices: Why Your Local Digital Repair Shop Might Be a Copyright Infringer, and Why We Must Stop the Craziness
I. INTRODUCTION¶1 In the mid- to late-1980s, many drivers were amazed when their vehicles began giving them practical advice; a malfunction indicator light would illuminate a phrase, such as "check engine," and the illumination would signal to the driver...
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In Re K-Dur Antitrust Litigation: Reopening the Door for Pharmaceutical Competition
¶1 One of the most controversial legal questions in the pharmaceutical industry today concerns settlements of patent infringement suits between branded and generic drug companies.1 These settlements, which are byproducts of the Hatch-Waxman Act, involve...
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Strategic Assertions: Evading the Patent Marking Requirement
I. INTRODUCTION¶1 The superfluous distinction that federal courts have drawn between marking requirements for patented articles and marking requirements for articles that are associated with patented methods has been improperly perpetuated and continues...
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