Author Archives: dukelawtechreview

The Apple E-Book Agreement and Ruinous Competition: Are E-Goods Different for Antitrust Purposes?

By: Michael Wolfe Publishers have spent the last decade and a half struggling against falling prices for digital goods. The recent antitrust case against Apple and the major publishers highlights collusive price fixing as a potential method for resisting depreciation. … Continue reading

Posted in Uncategorized | Leave a comment

The Jurisprudence of Transformation: Intellectual Incoherence and Doctrinal Murkiness Twenty Years After Campbell v. Acuff-Rose Music

By: Matthew D. Bunker and Clay Calvert Examining recent judicial opinions, this Article analyzes and critiques the transformative-use doctrine two decades after the U.S. Supreme Court introduced it into copyright law in Campbell v. Acuff-Rose Music. When the Court established … Continue reading

Posted in Copyrights & Trademarks

More from the #Jury Box: The Latest on Juries and Social Media

By: Hon. Amy J. St. Eve,  Hon. Charles P. Burns, & Michael A. Zuckerman This Article presents the results of a survey of jurors in federal and state court on their use of social media during their jury service. We began … Continue reading

Posted in Media & Communications

The Resurrection of the Duty to Inquire After Therasense, Inc. v. Becton, Dickinson & Co.

By: Brandee N. Woolard Balancing a duty to a tribunal and a duty to a client can paralyze a lawyer. The task raises difficult questions about how to reconcile competing obligations as an advocate and as an officer of the … Continue reading

Posted in Patents & Technology

Carbons Into Bytes: Patented Chemical Compound Protection in the Virtual World

By: B. Thomas Watson “Virtual” molecular compounds, created in molecular modeling software, are increasingly useful in the process of rational drug design. When a physical compound is patented, however, virtual use of the compound allows researchers to circumvent the protection … Continue reading

Posted in Health & Biotechnology, Patents & Technology

In Ambiguous Battle: The Promise (And Pathos) of Public Domain Day, 2014

By: Jennifer Jenkins On the first day of each year, Public Domain Day celebrates the moment when copyrights expire, and books, films, songs, and other creative works enter the public domain, where they become, in Justice Brandeis’s words, “free as … Continue reading

Posted in Copyrights & Trademarks, Patents & Technology

After Prometheus, Are Human Genes Patentable Subject Matter?

By: Douglas L. Rogers On April 15, 2013, the U.S. Supreme Court heard oral arguments in Association for Molecular Pathology v. Myriad Genetics, Inc. on the question, “Are human genes patentable?” This article argues that human genes are not patentable … Continue reading

Posted in Health & Biotechnology, Patents & Technology

Lack of Transparency in the Premarket Approval Process for Aquadvantage Salmon

By: Michael P. McEvilly After a lengthy premarket approval process, the Food and Drug Administration (FDA) is soon likely to deem AquAdvantage Salmon, a fast-growing, genetically engineered salmon, safe for human consumption. If approved, AquAdvantage Salmon will be the first … Continue reading

Posted in Health & Biotechnology

The Promise of Priority Review Vouchers as a Legislative Tool to Encourage Drugs for Neglected Diseases

By: Lesley Hamming Despite the intellectual property system’s success in promoting the economic well-being of the United States, this system has not achieved all socially valuable ends. Insufficient treatments are applied both to diseases endemic in developing countries, such as … Continue reading

Posted in Health & Biotechnology

The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation

By: Sara Jeruss, Robin Feldman, & Joshua Walker Any discussion of flaws in the United States patent system inevitably turns to the system’s modern villain: non-practicing entities, known more colorfully as patent trolls. For many years, however, discussions about non-practicing … Continue reading

Posted in Patents & Technology

Cooking Protestors Alive: The Excessive-Force Implications of the Active Denial System

By: Brad Turner The Active Denial System (ADS) is unlike any other nonviolent weapon: instead of incapacitating its targets, it forces them to flee, and it does so without being seen or heard. Though it is a promising new crowd-control … Continue reading

Posted in Patents & Technology | 2 Comments

A Comparative Critique to U.S. Courts’ Approach to E-Discovery in Foreign Trials

By: Lauren Ann Ross This Issue Brief explores an oft-neglected irony in international e-discovery: the rationales used by courts to compel discovery against foreign parties embroiled in litigation in U.S. courts may contradict courts’ reasoning when compelling discovery against U.S. … Continue reading

Posted in eDiscovery

The Myth and Reality of Dilution

By: Sandra L. Rierson Statutory dilution claims are traditionally justified on the theory that even non-confusing uses of a famous trademark (or similar mark) can nonetheless minutely dilute the source-identifying capacity of the targeted trademark. This Article challenges that theory. … Continue reading

Posted in Copyrights & Trademarks

The Greatest Book You Will Never Read: Public Access Rights and the Orphan Works Dilemma

By: Libby Greismann Copyright law aims to promote the dual goals of incentivizing production of literary and artistic works, and promoting public access and free speech. To achieve these goals, Congress has implemented a policy that acknowledges the rights of … Continue reading

Posted in Copyrights & Trademarks

Beta-Testing the “Particular Machine”: The Machine-or-Transformation Test in Peril and Its Impact on Cloud Computing

By: Richard M. Lee This Issue Brief examines recent cases addressing the patent eligibility of computer-implemented method claims and their implications for the development of cloud computing technologies. Despite the Supreme Court’s refusal to endorse the machine-or-transformation test as the … Continue reading

Posted in Patents & Technology

Cloud Computing, Clickwrap Agreements, and Limitation on Liability Clauses: A Perfect Storm?

By: Timothy J. Calloway “To the cloud!” trumpets a commercial by Microsoft, whose aim is to herd customers, and their checkbooks, into the cloud computing fold. But Microsoft, and other cloud providers like Amazon and Google, might inadvertently be doing … Continue reading

Posted in eCommerce

DMCA Safe Harbors and the Future of New Digital Music Sharing Platforms

By: Jing Xu SoundCloud is an online service provider that allows users to upload, share, and download music that they have created. It is an innovative platform for both amateur and established producers and disc jockeys (DJs) to showcase their … Continue reading

Posted in Copyrights & Trademarks

“Less Is More”: New Property Paradigm in the Information Age?

By: Aarthi S. Anand Before striking down laws increasing copyright’s domain, judges and legislators are asking for evidence that information products will be created even if copyright protection is not provided. The future of Internet technology depends on locating this … Continue reading

Posted in Patents & Technology

Open Source Innovation, Patent Injunctions, and the Public Interest

By: James Boyle This Article explores the difficulties that high technology markets pose for patent law and, in particular, for patent injunctions. It then outlines the ways in which “open source innovation” is unusually vulnerable to patent injunctions. It argues … Continue reading

Posted in Patents & Technology

Ensuring an Impartial Jury in the Age of Social Media

By: Amy J. St. Eve & Michael A. Zuckerman The explosive growth of social networking has placed enormous pressure on one of the most fundamental of American institutions—the impartial jury. Through social networking services like Facebook and Twitter, jurors have … Continue reading

Posted in Media & Communications

The “25% Rule” for Patent Infringement Damages After Uniloc

By: Roy J. Epstein The 2011 decision by the Federal Circuit in Uniloc v. Microsoft properly condemned the “25% Rule,” which bases a reasonable royalty on 25% of an infringer’s profits. Nonetheless, at least one proponent of the Rule continues … Continue reading

Posted in Patents & Technology

The Path of Internet Law: An Annotated Guide to Legal Landmarks

By: Michael L. Rustad & Diane D’Angelo The evolution of the Internet has forever changed the legal landscape. The Internet is the world’s largest marketplace, copy machine, and instrumentality for committing crimes, torts, and infringing intellectual property. Justice Holmes’s classic … Continue reading

Posted in International

Copyright for Couture

By: Loni Schutte Fashion design in America has never been covered by the extensive intellectual property (IP) protections afforded to other categories of creative works or to the art in other countries. As a result, America has become a safe … Continue reading

Posted in Copyrights & Trademarks

Programmers and Forensic Analyses: Accusers Under the Confrontation Clause

By: Karen Neville Recent Supreme Court cases involving the Confrontation Clause have strengthened defendants’ right to face their accusers. Bullcoming v. New Mexico explored the question of whether the testimony of the technician who performs a forensic analysis may be … Continue reading

Posted in Health & Biotechnology

Checking the Staats: How Long Is Too Long to Give Adequate Public Notice in Broadening Reissue Patent Applications?

By: David M. Longo Ph.D. & Ryan P. O’Quinn Ph.D. A classic property rights question looms large in the field of patent law: where do the rights of inventors end and the rights of the public begin? The right of … Continue reading

Posted in Patents & Technology