Category Archives: Patents & Technology

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

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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

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

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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

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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

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“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

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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

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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

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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

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The Classic 25% Rule and the Art of Intellectual Property Licensing

By: Robert Goldscheider Fifty years ago, Robert Goldscheider helped pioneer the use of a methodology known as “the 25% Rule,” a tool for determining reasonable royalties in intellectual property licensing negotiations. The Rule holds that licensees of intellectual property normally … Continue reading

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Non­–Per Se Treatment of Buyer Price-Fixing in Intellectual Property Settings

By: Hillary Greene The ability of intellectual property owners to earn monopoly rents and the inability of horizontal competitors to price fix legally are two propositions that are often taken as givens.  This iBrief challenges the wholesale adoption of either … Continue reading

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Limitation of Sales Warranties as an Alternative to Intellectual Property Rights: An Empirical Analysis of IPhone Warranties’ Deterrent Impact on Consumers

By: Marc L. Roark Apple’s success with the Apple iPhone has brought with it certain problems. Its success has engendered a community that has attempted to circumvent Apple’s exclusive service agreement with AT&T. Unfortunately for Apple (and similarly situated manufacturers), … Continue reading

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Standards × Patents ÷ Antitrust = ∞: The Inadequacy of Antitrust to Address Patent Ambush

By: Jonathan Hillel “Patent ambush” describes certain rent-seeking behavior by the owner of patent rights to a technology that is essential to an industry standard. Two cases, Qualcomm and Rambus, represent attempts of the Third and D.C. Circuits, respectively, to … Continue reading

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Keeping the LEDs on and the Electric Motors Running: Clean Tech in Court After Ebay

By: Eric Lane The recent rise of non-practicing patentees (NPPs) in the clean technology space comes at a time when the international community is debating the role of intellectual property rights in the deployment and implementation of technologies to combat … Continue reading

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In Re Bilski and the “Machine-or-Transformation” Test: Receding Boundaries for Patent Eligible Subject Matter

By: Matthew Moore In order for a hopeful applicant to be granted a patent over his invention, his application must satisfy several procedural and substantive requirements. Among the substantive hurdles that an applicant must clear is the mandate that patents … Continue reading

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Antitrust, Innovation, and Uncertain Property Rights: Some Practical Considerations

By: Dean V. Williamson The intersection of antitrust and intellectual property circumscribes two century-long debates. The first pertains to questions about how antitrust law and intellectual property law interact, and the second pertains to questions about how parties can exploit … Continue reading

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Green Technology in Developing Countries: Creating Accessibility Through a Global Exchange Forum

By: Michael Hasper As they pursue economic development, developing countries possess high demand for processes and technologies that have climate-friendly methods or alternatives. However, these nations currently face barriers to entry because of trade policies and intellectual property regulations that … Continue reading

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Legal Approaches to Promote Technological Solutions to Climate Change

By: Daniel Van Fleet Technological advancement is widely viewed as an essential component to any effective climate change strategy. However, there is no consensus as to the degree to which the law should promote technological innovation and development. This iBrief … Continue reading

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Operation Restoration: How Can Patent Holders Protect Themselves From Medimmune?

By: Stephanie Chu The Supreme Court’s recent decision in MedImmune v. Genentech shifts the balance of power in license agreements from patent holders to their licensees. This iBrief outlines the potential implications of the new rules on all stages of … Continue reading

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Encouraging Corporate Innovation for Our Homeland During the Best of Times for the Worst of Times: Extending Safety Act Protections to Natural Disasters’

By: Ava A. Harter This article first analyzes the innovative tort reform of the SAFETY Act and then argues for expansion of SAFETY Act type risk protection to natural disasters such as hurricanes, earthquakes and wildfires. The SAFETY Act was … Continue reading

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A Budding Theory of Willful Patent Infringement: Orange Books, Colored Pills, and Greener Verdicts

By: Christopher A. Harkins The rules of engagement in the brand-name versus generic-drug war are rapidly changing. Brand-name manufacturers face increasing competition from Canadian manufacturers of generic drugs, online drug companies, and Wal-Mart® Super Centers deciding to cash in by … Continue reading

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This Town Ain’t Big Enough for the Both of Us—Or Is It? Reflections on Copyright, the First Amendment and Google’s Use of Others’ Content

By: David Kohler Using a variety of technological innovations, Google became a multi-billion dollar content-delivery business without owning or licensing much of the content that it uses. Google’s principal justification for why this strategy does not contravene the intellectual property … Continue reading

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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

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