Author Archives: dukelawtechreview

Walking the Line: Why the Presumption Against Extraterritorial Application of U.S. Patent Law Should Limit the Reach of 35 U.S.C. § 271(f)

By: Jennifer Giordano-Coltart The advent of the digital era and the global market pose unique challenges to intellectual property law. To adapt, U.S. patent laws require constant interpretation in the face of rapidly changing technological advances. In AT&T Corp. v. … Continue reading

Posted in Patents & Technology

Where Will Consumers Find Privacy Protection From RFIDs?: A Case for Federal Legislation

By: Serena G. Stein With the birth of RFID technology, businesses gained the ability to tag products with practically invisible computer chips that relay information about consumer behavior to remote databases. Such tagging permits retailers and manufacturers to track the … Continue reading

Posted in Patents & Technology

Is Kelly Shifting Under Google’s Feet? New Ninth Circuit Impact on the Google Library Project Litigation

By: Cameron W. Westin The Google Library Project presents what many consider to be the perfect fair-use problem. The legal debate surrounding the Library Project has centered on the Ninth Circuit’s Kelly v. Arriba Soft. Yet recent case law presents … Continue reading

Posted in Patents & Technology

Does Information Beget Information?

By: Dennis S. Karjala Using the language of mathematics, Professor Polk Wagner has recently argued that the impossibility of fully appropriating the value of information in a rightsholder leads to the surprising conclusion that expanding the degree of control of … Continue reading

Posted in Patents & Technology

T-Mobile USA Inc. V. Department of Finance for Baltimore City: What the Latest Salvo in Disproportional Cellular Phone Taxation Means for the Future

By: Daniel P. Slowey Seventeen percent of the average monthly cellular phone bill in 2004 was comprised of federal, state, and local taxes. As the number of wireless subscribers across the nation continues to increase, states, cities, and counties are … Continue reading

Posted in Media & Communications

Newsgroups Float Into Safe Harbor, and Copyright Holders Are Sunk

By: Alicia L. Wright Usenet newsgroups are swiftly becoming a popular vehicle for pirating digital music, movies, books, and other copyrighted works. Meanwhile, courts ignore Usenet’s tremendous potential for copyright infringement. In Ellison v. Robertson, the Ninth Circuit Court of … Continue reading

Posted in Copyrights & Trademarks

Why Technology Provides Compelling Reasons to Apply a Daubert Analysis to the Legal Standard of Care in Medical Malpractice Cases

By: Nichole Hines Traditionally, courts have applied a “customary practice” standard in determining the legal standard of care in medical malpractice cases. Recently, a few courts have abandoned this dated standard and instead applied a Daubert analysis to the standard … Continue reading

Posted in Health & Biotechnology

When Is Employee Blogging Protected by Section 7 of the NLRA?

By: Katherine M. Scott The National Labor Relations Act forbids employers from retaliating against certain types of employee speech or intimidating those who engage in it. This iBrief examines how blogging fits into the current statutory framework and recommends how … Continue reading

Posted in Media & Communications

The Constitutionality of WIPO’s Broadcasting Treaty: The Originality and Limited Times Requirements of the Copyright Clause

By: Adam R. Tarosky Because the proposed WIPO Broadcasting Treaty extends perpetual copyright-like protections to unoriginal information, its implementation would violate at least two fundamental limitations on Congress’s Copyright Clause power: the originality and “limited times” requirements. But Congress has … Continue reading

Posted in International

The End of Net Neutrality

By: William G. Laxton Jr. In 2005, the FCC changed the competitive landscape of the high-speed Internet access industry by classifying both DSL and cable modem service as “information services.” While many hail this move as a victory for competition … Continue reading

Posted in Media & Communications

What, if Any, Are the Ethical Obligations of the U.S. Patent Office? A Closer Look at the Biological Sampling of Indigenous Groups

By: Marina L. Whelan The patenting of biological resources collected from indigenous groups has become a controversial trend. Two U.S. patents in particular, one claiming a cell-line from a 26-year old Guayami woman and one claiming a leukemia virus from … Continue reading

Posted in Health & Biotechnology

Injunction Junction: Remembering the Proper Function and Form of Equitable Relief in Trademark Law

By: Ryan McLeod Injunctions are supposed to be among the most extraordinary remedies in the American judicial system, yet they have become anything but rare in trademark litigation. Although the unique nature of trademark protection may explain the frequency of … Continue reading

Posted in Copyrights & Trademarks

Download, Stream, or Somewhere in Between: The Potential for Legal Music Use in Podcasting

By: Benjamin Aitken Podcasting is an increasingly popular new digital technology with the potential to be a great conduit of expression. Currently, the use of music is limited in podcasting due in large part to uncertainty as to what rights … Continue reading

Posted in Copyrights & Trademarks

Shielding Journalist-“Bloggers”: The Need to Protect Newsgathering Despite the Distribution Medium

By: Laura Durity The failure to agree on a sufficiently narrow definition of “journalist” has stalled efforts to enact a federal shield law to legally protect reporter-source communications from compelled disclosure in federal court. The increasing use of the Internet … Continue reading

Posted in Media & Communications

Protecting Intellectual Property in the Developing World: Next Stop—Thailand

By: Cortney M. Arnold This iBrief examines the U.S. strategy for strengthening the protection of intellectual property rights (IPRs) in Southeast Asia through the use of free trade agreements (FTAs). After briefly examining the U.S. methodology for strengthening IPRs outside … Continue reading

Posted in International

Unnecessary Indeterminacy: Process Patent Protection After Kinik v. ITC

By: John M. Eden In Kinik v. International Trade Commission, the U.S. Court of Appeals for the Federal Circuit suggested in dicta that the defenses available to foreign manufacturers in infringement actions under 35 U.S.C. § 271(g) in Federal district … Continue reading

Posted in Patents & Technology

Mining the Common Heritage of Our DNA: Lessons Learned From Grotius and Pardo

By: Jasper A. Bovenberg The Human Genome Project generated oceans of DNA sequence data and spurred a multinational race to grab the bounties of these oceans. In response to these DNA property grabs, UNESCO, drawing upon international law precedents addressing … Continue reading

Posted in International

Patent Misuse in Patent Pool Licensing: From National Harrow to “The Nine No-Nos” to Not Likely

By: Daniel P. Homiller Courts and the Justice Department’s Antitrust division have become increasingly tolerant of patent licensing practices that were previously viewed with suspicion. This trend has put pressure on the doctrine of patent misuse, which arose in the … Continue reading

Posted in Patents & Technology

When Discrimination Is Good: Encouraging Broadband Internet Investment Without Content Neutrality

By: Christopher E. Fulmer Cable television and traditional telephone companies are increasingly offering the same set of services: telephone, television, and broadband Internet access. Competition between these two types of companies would ordinarily require them to improve these services, but … Continue reading

Posted in Media & Communications

Internet Sales Taxes From Borders to Amazon: How Long Before All of Your Purchases Are Taxed?

By: Walter J. Baudier What so many internet consumers believe to be tax-free is actually subject to a state use tax. Faced with pressure from states that realize very little of the use tax owed, many online retailers, such as … Continue reading

Posted in eCommerce

Barriers to Innovation: Intellectual Property Transaction Costs in Scientific Collaboration

By: Megan Ristau Baca The institution of university science research has evolved over the past century, from one of open science and free information to one of competition and jealously guarded intellectual property rights. This iBrief analyzes the background factors … Continue reading

Posted in Patents & Technology

Fighting Terrorism in an Electronic Age: Does the Patriot Act Unduly Compromise Our Civil Liberties?

By: Christopher P. Raab The USA PATRIOT Act is tremendously controversial, both lauded by law enforcement and decried by civil liberties groups. This iBrief considers two of the Act’s communications monitoring provisions, concluding that each compromises civil liberties to a … Continue reading

Posted in Media & Communications

Anti-Employer Blogging: Employee Breach of the Duty of Loyalty and the Procedure for Allowing Discovery of a Blogger’s Identity Before Service of Process Is Effected

By: Konrad Lee The rapid rise in anonymous anti-employer internet blogs by disgruntled employees has created a tension between the liberty interests of employees in free speech and privacy and employers’ rights to be free from defamation, disparagement and disclosure … Continue reading

Posted in eCommerce

Completing the Connection: Achieving Universal Service Through Municipal Wi-Fi

By: K. Joon Oh The federal universal service scheme is designed to ensure that everyone has affordable access to advanced telecommunications and information services. Despite the development of cost-effective technologies that drastically reduce the cost of telephone services vis-à-vis the … Continue reading

Posted in Media & Communications

Attack of the Clones: Legislative Approaches to Human Cloning in the United States

By: Adrienne N. Cash The legal concerns involving the application of cloning technology to humans should be of utmost concern, as the area is extremely complex. Cloning could potentially have great benefits or disastrous effects. Lawmakers have been careful to … Continue reading

Posted in Health & Biotechnology