The “Commercial Offer for Sale” Standard After Minnesota Mining v. Chemque

By: Campbell Chiang The Supreme Court established a two-part test for determining when an invention is “on sale” under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be “ready for patenting” and subject of a “commercial offer for sale.” In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a “commercial offer for sale.” Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0035

Piracy Deserves No Privacy

By: Frank Chao The Recording Industry Association of America (“RIAA”), the music industry’s trade and lobbying group, recently initiated a controversial tactic to bring to surface previously anonymous digital pirates of the Internet. This aggressive tactic aims to make safe the digital oceans for copyright and involves identifying and bringing claims against infringing individuals who download, swap, and/or post copyrighted music illegally via the Internet. The RIAA cares not who the infringers are or whether the infringers know the illegality of their actions. Nor does the music industry concern itself with the inevitable storm of backlash bound to fall upon them for suing uninformed or unintentional infringers. Internet users and privacy advocates, however, care all too much. This i-brief attempts to alleviate the fears of privacy infringement by bringing to light certain safeguards built into the Digital Millennium Copyrights Act (“DMCA”) to deal with the possibility of both fraudulent identity subpoenas and infringement into personal privacy. In addition, case law will show that the subpoena powers of the DMCA will not be abused by those who truly wish to enforce copyright laws and legitimate claims of ownership, thereby maintaining the privacy of law abiding Internet users. Download Full Article (PDF)

Patenting Computer Data Structures: The Ghost, the Machine and the Federal Circuit

By: Andrew Joseph Hollander Courts view “data structures,” the mechanism by which computers store data in meaningful relationships, differently than do computer scientists. While computer scientists recognize that data structures have aspects that are both physical (how they are stored in memory) and logical (the relationships among the stored information), the Federal Circuit, in its attempts to set clear standards of the scope of patentability of data structures, has not fully appreciated their dualistic nature. This i-brief explains what data structures are, explores how courts have wrestled with setting a limiting principle to determine their patentability, and discusses the resultant impact on claim drafting. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0033

U.S. Infringement Liability for Foreign Sellers of Infringing Products

By: Troy Petersen With the ever-increasing international flavor of business comes an important question for United States patent holders and foreign manufacturers alike: Can a company be held liable for patent infringement in the United States for selling an infringing product abroad that is later imported into the United States? Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0032