Subjects -> PATENTS, TRADEMARKS AND COPYRIGHTS (Total: 26 journals)
Showing 1 - 9 of 9 Journals sorted alphabetically
Berkeley Technology Law Journal     Free   (Followers: 14)
Expert Opinion on Therapeutic Patents     Hybrid Journal   (Followers: 12)
Fordham Intellectual Property, Media and Entertainment Law Journal     Open Access   (Followers: 20)
IIC - International Review of Intellectual Property and Competition Law     Hybrid Journal   (Followers: 28)
International Data Privacy Law     Hybrid Journal   (Followers: 22)
International Journal of Intellectual Property Management     Hybrid Journal   (Followers: 30)
IP Theory     Open Access   (Followers: 12)
JIPITEC Journal of Intellectual Property, Information Technology and E-Commerce Law     Open Access   (Followers: 24)
John Marshall Journal of Information Technology & Privacy Law     Full-text available via subscription   (Followers: 7)
John Marshall Review of Intellectual Property Law     Free   (Followers: 10)
Journal of Copyright in Education & Librarianship     Open Access   (Followers: 33)
Journal of Data Protection & Privacy     Full-text available via subscription   (Followers: 6)
Journal of Intellectual Property Law & Practice     Hybrid Journal   (Followers: 30)
Journal of Intellectual Property Rights (JIPR)     Open Access   (Followers: 23)
Law, State and Telecommunications Review     Open Access   (Followers: 1)
Marquette Intellectual Property Law Review     Open Access   (Followers: 14)
Northwestern Journal of Technology and Intellectual Property     Open Access   (Followers: 8)
Propiedad Intelectual     Open Access   (Followers: 1)
Recent Patents on Anti-Cancer Drug Discovery     Hybrid Journal   (Followers: 2)
Recent Patents on Anti-Infective Drug Discovery     Hybrid Journal   (Followers: 1)
Reports of Patent, Design and Trade Mark Cases     Hybrid Journal   (Followers: 5)
Revista La Propiedad Inmaterial     Open Access  
The Journal of World Intellectual Property     Hybrid Journal   (Followers: 26)
Ticaret ve Fikri Mülkiyet Hukuku Dergisi     Open Access  
Web Journal of Current Legal Issues     Open Access   (Followers: 6)
World Patent Information     Hybrid Journal   (Followers: 17)
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John Marshall Review of Intellectual Property Law
Number of Followers: 10  

  Free journal Free journal
ISSN (Print) 1930-8140
Published by John Marshall Law School Homepage  [5 journals]
  • There Has Been an Infringement of My Work and My Circuit Does Not Allow Me
           to Sue! The Time Has Come to Hash-Out the Federal Circuit Court
           Discrepancy on Copyright Registration, 18 J. Marshall Rev. Intell. Prop.
           L. 344 (2019)
    • Authors: Thomas Placzek
      Abstract: The time has come to relieve the ambiguity created by the continued lack of consensus regarding the proper interpretation of 17 U.S.C. § 411(a). The persistent split amongst the various Federal Courts regarding the meaning of § 411(a)’s registration requirement allows some fortunate artists to immediately enforce their rights in a number of jurisdictions, while artists from other jurisdictions are prohibited from immediately enforcing the same rights. Several circuit and district courts subscribe to the “application approach,” while others employ the “registration approach.” This comment delves into the rationale behind the respective approaches, and discusses the arguments made for and against each one. In the end, this comment will ultimately highlight and advocate in favor of the seemingly superior features of the “application approach.” Additionally, this Comment also addresses the importance of adopting an efficient, uniform interpretation of § 411(a) that alleviates the uncertainty that plagues this portion of the Copyright Act. This comment suggests that the proper cure for this ambiguity lies in an enhanced application approach, coupled with a claimant’s obligation to amend her complaint at bar following the Copyright Office’s decision regarding a pending application for registration.
      PubDate: Mon, 22 Apr 2019 05:47:53 PDT
       
  • The Golden Claims: Necessary Support for Nonprovisional Application Prior
           Art References to be Granted Provisional Application Filing Dates During
           Inter Partes Review Proceedings, 18 J. Marshall Rev. Intell. Prop. L. 326
           (2019)
    • Authors: Madison Makeever
      Abstract: Whether to beat an impending disclosure, disclose the most information possible, or simply to get the earliest possible filing date, provisional patent applications are a beneficial way to protect your patent rights. The few formal and statutory requirements allow provisionals to be prepared on a rush basis. The Federal Circuit held in 2017 that published nonprovisional applications can constitute prior art as of its provisional filing date but only as to elements in the application. However, ambiguity regarding published applications in the Federal Circuit’s 2015 precedent for awarding a patent it’s provisional filing date may lead to increased patent invalidation through Inter Partes Review proceedings.
      PubDate: Mon, 22 Apr 2019 05:47:45 PDT
       
  • Nationalizing TRIPS: An Examination Through Exceptions, 18 J. Marshall
           Rev. Intell. Prop. L. 285 (2019)
    • Authors: Evan Tallmadge
      Abstract: What should not be patentable' The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) codifies certain categories of subject matter that nations can exclude from patent protection. This Article examines how nations have interpreted these exclusions through an analysis of their national manuals of patent examining procedure and more importantly what explicit exceptions to patentability these countries have listed. The Article proceeds to analyze both the similarities and differences in approaches towards exclusions that attempt to ban the same subject matter from patentability and differences in what countries have chosen to bar from patenting. The Article concludes with an argument for a harmonization of the international patent regime, noting how some countries have taken substantial liberties with the TRIPS language.
      PubDate: Mon, 22 Apr 2019 05:47:37 PDT
       
  • Intersection of Antitrust Laws with Evolving FRAND Terms in Standard
           Essential Patent Disputes, 18 J. Marshall Rev. Intell. Prop. L. 259 (2019)
           
    • Authors: Claire Guo
      Abstract: This article addresses the issues of overlapping enforcement of antitrust laws and FRAND (Fair, reasonable and non-discriminatory terms) in standard essential disputes. Briefly, this article observes that the evolving FRAND terms will affect the degree that antitrust laws may intervene into SEP license practice. Part I of this article is a brief introduction to the background and main sections. Part II describes the evolvement of FRAND into a globally converged standard of royalty determination and a process through joint efforts of global courts. Part III discusses the changing interaction of FRAND with antitrust laws in three major jurisdictions, respectively China, European Union and the U.S., in light of evolving FRAND. Part IV finds when FRAND is able to constrain the monopoly created by standardization as what happens in a highly competitive market, antitrust laws should gradually step down from interfering with SEP license practice to avoid over-burdening the SEP owners and curtailing innovation.
      PubDate: Mon, 22 Apr 2019 05:47:27 PDT
       
  • The Uncertain Protection of "Derivative" Trade Secrets, 18 J. Marshall
           Rev. Intell. Prop. L. 241 (2019)
    • Authors: Benjamin Bradford et al.
      Abstract: This article discusses when a trade secret misappropriation claim can be premised on the acquisition, disclosure, or use of a product or method derived from a trade secret, rather than the acquisition, disclosure, or use of a trade secret itself. Although this question is likely to take on increasing importance as digital products that were made through the use of trade secrets and that can easily be copied become a larger part of everyday life, courts have rarely focused on it and have not come to any consensus. In this article, we survey the existing, inconsistent case law and analyze it in light of the applicable statutory text and relevant public policy considerations. The article provides some conclusions and takeaways for practitioners.
      PubDate: Mon, 22 Apr 2019 05:47:17 PDT
       
  • Returning the Photographer's Autonomy: The Integration of Blockchain
           Technology into Copyright Registration, 18 J. Marshall Rev. Intell. Prop.
           L. 221 (2018)
    • Authors: Claire Demos
      Abstract: The advent of the Internet, combined with advances in accessible digital technology, have altered both the modern photographer’s methodologies and the public’s relationship to images online. Subsequent legislation has not evolved at a comparable pace, leaving copyright owners at a significant disadvantage when it comes to protecting their work in the digital environment. This comment specifically looks at the copyright registration process and subsequent legislation such as the Digital Millennium Copyright Act, which has failed to adequately address the copyright owner’s insurmountable burden when it comes to detecting infringement online. Continuing developments such as the integration of blockchain-based technology into the registration process may be the most effective method to assist copyright owners in monitoring and protecting their work online, bringing the outdated system current.
      PubDate: Mon, 14 Jan 2019 06:20:57 PST
       
  • The Safe Harbor of 35 U.S.C. § 121: Judicial Deviation from Congressional
           Intent Is Not Necessary to Uphold 35 U.S.C. § 101, 18 J. Marshall Rev.
           Intell. Prop. L. 205 (2018)
    • Authors: Jeanette Braun
      Abstract: 35 U.S.C. § 101 allows one patent per invention. Congress recognized that patent applications may disclose more than one invention and in 1952, enacted 35 U.S.C. § 120 and 121 to allow parent patent applications to birth child applications. The rights of patent blood lines have been understood and relied on for decades. In 2015, the Federal Circuit changed the rights of patent blood lines and ruled that the order in which patent applications were birthed destroyed 35 U.S.C. § 121 protection of divisional applications. This article analyzes the congressional intent of 35 U.S.C. § 121, the rights of patent blood lines, and whether consonance passes from a parent application through a continuation application to a divisional application. The analyses found that granting a divisional application stemming from a continuation application instead of the parent application entrance into the § 121 safe harbor does not violate the one patent per invention requirement of 35 U.S.C. § 101. "We cannot destroy kindred: our chains stretch a little sometimes, but they never break." ~Marquise de Sévigné
      PubDate: Mon, 14 Jan 2019 06:20:50 PST
       
  • You Can't Always Get What You Want' A Comparative Analysis of the
           Legal Means to Oppose the Use of Campaign Music, 18 J. Marshall Rev.
           Intell. Prop. L. 169 (2018)
    • Authors: Stefan Michel
      Abstract: The conflict between politicians and musicians over the use of songs as campaign music is a recurring issue in almost every election cycle. Due to its energizing and unifying force, music can be an efficient instrument in political campaigning. However, artists feel aggrieved as the use of their music might invite the assumption that they are somehow endorsing the candidate. After giving a brief overview of the history of campaign music and the qualities that make it so attractive for campaigning, this piece will analyze the chances a musician stands in the jurisdictions of the U.S., the UK and Germany. The choice of the assessed jurisdictions is reflective of the common law approach to copyright found in the U.S. and in the UK and the author’s right system represented by Germany. In the absence of an express moral rights regime for musical works in the U.S., artists need to rely on adjacent claims, including copyright, the right of publicity and trademark law, to vindicate their moral interests. It will be seen, though, that these claims are futile in the assessed scenario in which the campaign obtains a public performance license. While the UK implemented statutory moral rights into its copyright law, the situation does not look promising either. The considerably narrow scope of acts that trigger the integrity right bars a successful moral rights claim. In contrast, musicians in Germany could assert their moral rights against a campaign that performed their songs publicly although a public performance license has been purchased. The comparative analysis shows that this outcome can be traced back to the basic rationales of copyright and author’s rights. Because moral rights are the “backbone” of author’s rights protection, a strong emphasis is put on the personal interests of the author. Contrastingly, the U.S. and the UK show less conviction towards moral rights and rather perceive copyright material as a commodity. It will be argued that this pre-understanding and the ensuing reluctant efforts in providing for moral rights protection are what renders the prospects in the U.S. and the UK less promising. Lastly, it will be argued that musicians may well vindicate their moral interests in pursuing nonlegal avenues and using their popularity to advance their aims. If artists turn to the media and condemn the use of their songs, they are able to generate negative publicity for the campaign and compel candidates to comply with their demands. Considering this, the increasing importance of social media will give musicians more leverage as they can communicate with the public and their fans more directly.
      PubDate: Mon, 14 Jan 2019 06:20:42 PST
       
  • Unconstitutional Application of 35 U.S.C. §101 by the U.S. Supreme Court,
           18 J. Marshall Rev. Intell. Prop. L. 144 (2018)
    • Authors: Sherry Knowles et al.
      Abstract: “A or B” is inconsistent with “A not B.” This describes why the application of 35 U.S.C. § 101 by the U.S. Supreme Court is inconsistent with the U.S. Constitution, and thus unconstitutional. This article tracks the legislative history of patent eligibility from 1790 to 2011, and the parallel but inconsistent U.S. Supreme Court case law during this period. In following its own case law, the Court has shown extraordinary judicial activism, has penciled out two words of the federal statute (“or discovers”), and has penciled a word out of the U.S. Constitution (“discoveries”).
      PubDate: Mon, 14 Jan 2019 06:20:35 PST
       
  • Resale of Digital Works Under Copyright Laws: A Legal and Economic
           Analysis, 18 J. Marshall Rev. Intell. Prop. L. 123 (2018)
    • Authors: Muhammad Masum Billah
      Abstract: Through the first sale doctrine, copyright laws around the world establish for an owner of the copy of a copyrighted work the right to resell, lend, donate, and, in some cases, even to rent the copy. Under the doctrine, the copyright holder loses any control over the future distribution of a copy of the work after the sale of that copy. The purchaser of the copy is free to treat it like any other property she possesses. She can transfer it to anyone else through a resale or donation. The doctrine is part of the balance copyright law strikes between the interests of copyright holders and those of purchasers of the copies. While the right still exists in law, in most digital works copyright holders and their distributers deprive purchasers of this right through digital right management (DRM) technologies and contractual terms. By establishing the continued justifications of this right in the context of digital works, the paper argues for its preservation and recommends for necessary legislative changes to guarantee the application of the first sale doctrine to digital works.
      PubDate: Mon, 14 Jan 2019 06:20:28 PST
       
  • Insta-Fringement: What is a Fair Use on Social Media', 18 J. Marshall
           Rev. Intell. Prop. L. 102 (2018)
    • Authors: Caroline E. Kim
      Abstract: The phenomena of the Internet reinforced the need for well-defined intellectual property rights. In turn, the enactment of the General Data Protection Regulation emphasized the importance of social media and privacy. However, the problem remains that the law has not yet fully embraced the relationship between many technological advancements and social media. The widespread use of social media illustrates that contemporary copyright law must address what constitutes “shareable content.”This article examines what social media platforms can do in order to provide a clearer definition of what constitutes a “fair-use” on their platforms. A data controller such as Instagram must provide more transparency with respect to the definition of “shareable content.” Additionally, the primary policy objective of this article is to enhance the general public’s knowledge about copyright law, and to ensure that copyright protections are retained for social media influencers.
      PubDate: Wed, 28 Nov 2018 06:50:00 PST
       
  • Making the List: What Does it Take to Make a Patient List a Trade
           Secret', 18 J. Marshall Rev. Intell. Prop. L. 83 (2018)
    • Authors: Sara Ghantous
      Abstract: What exactly makes a patient list a trade secret' This question has been a topic of heated debate for the last thirty years. It turns out that there is no right answer to this question. Long story short: it depends. The enumerated factors in the Uniform Trade Secrets Act (UTSA) lack specificity, and the courts fan to clarify how to meet the UTSA’s ambiguous standards. Because there is no clear approach to determine whether a patient list enjoys trade secret protection, there is no way for physicians to know the proper measures to take in gathering, maintaining, and protecting patient information. In this comment, Sara Ghantous suggests that the drafters of the UTSA should add language that clarifies these ambiguities. In the end, despite the Act’s shortcomings, Ghantous concludes that the courts’ various findings can serve as a guide to defining the inconsistencies of the UTSA, and offers suggestions to aid healthcare facilities in protecting patient information.
      PubDate: Wed, 28 Nov 2018 06:49:53 PST
       
  • When Open Source Software Encounters Patents: Blockchain as an Example to
           Explore the Dilemma and Solutions, 18 J. Marshall Rev. Intell. Prop. L. 55
           (2018)
    • Authors: Huang-Chih Sung
      Abstract: The original blockchain developers set the core programs, development interfaces, and application software of the blockchain as open source software, which are open to all developers for free. They have never thought of collecting royalties by claiming copyright, nor did they apply for patents. Since then, however, many follow-up blockchain developers applied the core programs to further developments and filed a large numbers of patent applications, causing the original blockchain developers to be very concerned about whether these patents will otherwise slow down or even endanger the innovation of blockchain technology. Consequently, finding legal solutions for the conflicts between open source software and patent rights hence becomes an important research topic in the field of intellectual property rights.This article discusses three possible solutions to the conflict: the licensing schemes of industrial standard, the licensing schemes of open source software, and the open patent campaigns, pointing out that at the moment all three have an opportunity to solve the problem, while also acknowledging that there are still many issues to be solved. In terms of the licensing schemes of industrial standard, this article considers that the industrial standard of blockchain should require the patentees involved in standard setting to disclose their patents, and should require the owners of the standard essential patents to not refuse the patent licensing. To determine what licensing scheme the blockchain standard should adopt, this article conducts a legal and economic analysis by studying its technical attributes, the process of patent thicketing, and the development of the industry, suggesting that the “Patent Policy” of the blockchain standard should at least follow the fair, reasonable, and non-discriminatory (FRAND) license adopted by many industrial standards such as the telecommunication industry. As a result, users of blockchain could access the patented technologies more conveniently. In terms of the licensing schemes of open source software, this article finds that the MIT license for the Bitcoin Blockchain and the GNU GPL license for the Ethereum Blockchain cannot solve the problem of follow-up developers not drafting a software code, but instead applying for patents for the resulting follow-up developments. This article compares the similarities and differences of other open source software programs, studies the original philosophical spirit and technological and industrial development of blockchains, and suggests a suitable licensing scheme of open source software for the blockchain technology.Lastly, this article finds open patents to be a possible solution to the patent problems faced by the blockchain technology, but concludes that this solution is more challenging with blockchain than in other industries because open patent campaigns rely on the spontaneous action of the patentee. The blockchain industry, especially the original developers of the core blockchain technology, should provide incentives for the right holders of subsequent patent applications to willingly and spontaneously open their patents.
      PubDate: Wed, 28 Nov 2018 03:02:48 PST
       
  • Trade Secret Law: The Role of Information Governance Professionals, 18 J.
           Marshall Rev. Intell. Prop. L. 27 (2018)
    • Authors: William Lynch Schaller
      Abstract: Trade secrets are rapidly becoming the most important assets of many businesses. Information Governance (IG) professionals can and should play an integral part in managing company trade secrets, but not all companies have IG professionals and not all IG professionals understand the meaning of "trade secrets." This article maps the many facets of trade law and practice that are of potential interest to all IG professionals. It also highlights the different roles IG professionals can play with respect to trade secrets, from cataloging to monitoring to testifying.
      PubDate: Wed, 28 Nov 2018 03:02:42 PST
       
  • Foreign Patent Decisions and Harmonization: A View of the Presumption
           Against Giving Foreign Patent Decisions Preclusive Effect in United States
           Proceedings in Light of Patent Law International Harmonization, 18 J.
           Marshall Rev. Intell. Prop. L. 1 (2018)
    • Authors: Roberto Rosas
      Abstract: This article takes a look at the important issue of global harmonization in patent law. The article takes a snapshot at issues such as recognition and enforcement of foreign patent decisions, and how courts in the United States resolve foreign patent laws disputes brought before them. Although there are numerous legal topics that can be addressed in the subject of international patent law, this article takes special focus on the pressure put on the strong presumption of territoriality in patent law because of the rapid and still growing globalization and internalization of markets and intellectual property; while also discussing on the strong presumption against giving preclusive effect to foreign patent decisions in U.S. proceedings.
      PubDate: Wed, 28 Nov 2018 03:02:35 PST
       
  • A Battle Between Moral Rights and Freedom of Expression: How Would Moral
           Rights Empower the "Charging Bull" Against the "Fearless Girl"', 117
           J. Marshall Rev. Intell. Prop. L. 672 (2018)
    • Authors: Tzu-I Lee
      PubDate: Tue, 22 May 2018 02:30:10 PDT
       
  • Delaying Competition: How Sound Public Policy and Rigorous Antitrust
           Scrutiny Can Be Applied to Controversial Patent Settlements, 17 J.
           Marshall Rev. Intell. Prop. L. 655 (2018)
    • Authors: Sam Hensel
      Abstract: The rising costs of prescription drugs are a growing concern for many Americans. The restraint of trade for pharmaceutical drugs is a cause of rising costs for consumers, as companies seek to push potential competitors out of the market to maintain profits. This unlawful restraint of trade will be discussed in this comment. Specifically, this comment will focus on "Pay for Delay" agreements, mostly between generic versus brand name pharmaceutical manufacturers. The proliferation of these agreements only leads to an unsustainable market that discourages innovation and advancement, and promotes fraud, as invalid patents are used as leverage to prevent generics from providing more choices to consumers in a more competitive market. This comment will also address a regulatory structure that can prevent parties from forming "Pay for Delay" agreements, while balancing between respecting the rights of patent holders, protecting consumers, and promoting market competition.
      PubDate: Tue, 22 May 2018 02:30:06 PDT
       
  • The Balances of Two Trademark Rights: Generation Systems in Japan's
           Trademark Laws, 17 J. Marshall Rev. Intell. Prop. L. 608 (2018)
    • Authors: Weiguang Wu
      Abstract: This article consists of 6 sections. In Section I, the article mainly introduces the basic theory of a trademark right as a private right and its purpose. A trademark right as a private right is purposeful to protect goodwill of trademark users, which is their labor fruits during trademark use in the course of business. A trademark right generated by use is called a right subsisting upon use (RSUU) system, which is mainly adopted in common law countries. A trademark right generated by registration is called a right subsisting upon registration (RSUR) system, which is mainly adopted by civil law countries including Japan. In Japan’s judicial practices, goodwill protected by RSUR is broken down into 3 functions, the function of indicating origin and ownership; the quality guarantee function and an advertising function. In Section II, this article analyzes why the RSUR system, instead of the RSUU system, is adopted in many countries. Because of ambiguous, varied and untouchable goodwill generated in trademark use, RSUU is itself difficult to be grasped and respected by third parties. Therefore, in most civil law countries including Japan, the RSUR system is adopted, by which trademark rights are generated upon registration instead of use in business. The RSUR system is more transparent, stable and predictable than the RSUU system because the content and boundary of rights are statutory, which includes the exclusive right to use and the right to prohibit use, and infringements of RSUR are statutorily categorized. The RSUR system is preferential to efficiency of right protection and implementation. But in some situations, the efficiency-preferential RSUR system is inconsistent with the purpose of the TMA. These inconsistencies can be categorized into two groups, internal inconsistencies and external inconsistencies. Internal inconsistencies refer to inconsistencies caused by the RSUR system to be resolved by the TMA itself; and external inconsistencies refer to inconsistencies caused by the RSUR system that are to be resolved by laws other than the TMA, such as the UCPA and Civil Code. The internal inconsistencies mainly include: (1) trademark registration for banking purposes; (2) trademark registration in conflict with prior user’s goodwill; and (3) no protection for goodwill of registrants spilled out of registered trademarks. The external inconsistencies mainly include (1) no protection in the TMA for goodwill on unregistered indications; (2) no protection in the TMA for goodwill spilled out of registered defensive trademarks; and (3) abuses of registered trademark rights. Section III of the article discusses different meanings of well-known/famous trademarks in different contexts and their backup policies. The institutional functions of well-known/famous trademark protection in the TMA are to protect goodwill of trademark users from usurpation by registered trademark right holders. The goodwill worthy of protection in different context is different. Therefore, the meanings of well-known trademarks are different accordingly, which includes regional well-known, national well-known and international well-known marks. There is no famous trademark concept in the TMA, but famous indications exist in the UCPA, The article summarizes typical measures to cure internal inconsistencies in Section IV. They are: (1) cancellation of trademark registrations for banking purposes; (2) registration prevention for protection of prior goodwill; (3) registration prevention of agents who maliciously violate trust relationships between principals and agents; (4) preventing usurpation of honest users’ goodwill; (5) expanding protection for spilled goodwill by registered defensive trademarks; and (6) adoption of the trademark use doctrine. Measures to cure external inconsistencies are discussed in Section V. The first external inconsistency is the loophole of goodwill protection in the TMA. In three situations, goodwill is not protected in the TMA. The first is goodwill enshrined on not-registered trademarks; the second is goodwill enshrined on non-registrable indications; and the third is goodwill spilled out of scope of registered trademarks including registered defensive trademarks. The loopholes of goodwill in these three situations are made up by protection of well-known and famous indication protections in the UCPA. The second external inconsistency is abuse of RSUR, (i.e. registered trademark right holders abuse the right for purposes other than goodwill protection), which are considered unfair. In judicial practices, Japanese courts prohibit such abuses of registered trademark rights according to Art. 1 of Civil Code. The relevant cases could be summarized into 4 types, abuse of right with illicit purpose; abuse of right for market exclusion; abuse of right for unfair purpose; and abuse of right in parallel imports. And Section VI is the conclusion.
      PubDate: Mon, 21 May 2018 09:11:11 PDT
       
  • Knowledge/Skill Standards of a "Person Skilled in Art": A Concern Less
           Visited, 17 Marshall Rev. Intell. Prop. L. 588 (2018)
    • Authors: Naina Khanna et al.
      Abstract: The law is differential across jurisdictions when it comes to the skill standard required for the PSITA/PHOSITA in Patent Law. This article will analyze the various levels of skill addressed throughout European, Indian, and U.S. Patent Law. Whether the level of skill be ‘ordinary’, ‘extraordinary’ or otherwise, discrepencies exist throughout the court systems, manuals of examination and the like. Much hinges on the determination of patentability when the expertise or level of skill of the PSITA/PHOSITA is often vague and indeterminative. It is submitted that since the advancement in technology is taking place at a very rapid scale and every minute a new step towards innovation is taken, the need to keep patentability standards strict is high. The analysis of this article shows that the use of the word ‘ordinarily’ while defining PSITA/PHOSITA may lead to differential patenting standards across jurisdictions.
      PubDate: Mon, 21 May 2018 09:11:05 PDT
       
  • Law, Brands, and Innovation: How Trademark Law Helps to Create Fashion
           Innovation, 17 J. Marshall Rev. Intell. Prop. L. 492 (2018)
    • Authors: Dayoung Chung
      Abstract: This Article explores the role of trademark law in the fashion industry. For years, the fashion industry has drawn legal scholars’ attention for its maintenance of creative endeavors within a legal environment that offers limited protection against design copying. Some influential legal studies argued that copying paradoxically helps the fashion industry as unregulated copying stimulates the creation of new designs. Yet, this Article observes that the driver for new design creation is already built into the contemporary fashion industry. The question should rather be directed at who creates fashion and how the role of the law, if any, aids the subject and mechanism of making fashion. This Article illuminates on the significant role that established fashion houses (so-called luxury companies or high-end designers) play in making fashion. This Article also suggests that these fashion houses require brands to make fashion. On this ground, this Article then demonstrates the capacity of trademark law to protect established fashion houses’ brands. The Article begins in Part One with an observation of the contemporary fashion industry and elaborating on the social mechanism of making fashion. It argues that the creation of design does not simply make fashion until it is adopted by majority of people. This Article uses the term “fashion innovation” to refer to adopted designs, distinguished from the created designs that some legal scholars called “innovation.” What trademark law helps is “fashion innovation,” that is, the law helps the adoption of new designs created by established fashion houses. An adoption is a communication process that engages the brand, which, I show, works as a semantic mechanism of making fashion innovation. Part Two and Three unfolds how trademark operates to protect brands of established fashion houses throughout case law analysis. Part Two examines the capacity of trademark law in governing iconic designs associated with established brands, which, under copyright law, would receive limited legal protection. Part Three identifies the capacity of trademark law to govern consumer associations with established brands. After all, it is the interplay among trademark law, brands, and innovation that supports the thriving fashion industry.
      PubDate: Mon, 21 May 2018 09:10:59 PDT
       
 
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