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 essay on the path of the law drew upon six centuries of case reports and statutes. In less than twenty-five years, Internet law has created new legal dilemmas and challenges in accommodating new information technologies. Part I is a brief timeline of Internet case law and statutory developments for Internet-related intellectual property (IP) law. Part II describes some of the ways in which the Internet is redirecting the path of IP in a globalized information-based economy. Our broader point is that every branch of substantive and procedural law is adapting to the digital world. Part III is the functional equivalent of a GPS for locating the latest U.S. and foreign law resources to help lawyers, policymakers, academics and law students lost in cyberspace. Download Full Article (PDF) Cite: 2011 Duke L. & Tech. Rev. 012
Month: November 2011
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 haven for design pirates. Piracy disproportionately harms young designers who do not have established trademarks for their brands and must rely purely on creativity to propel their designs into the market. H.R. 2511 is a bill that aims to extend copyright protection to fashion designs, albeit narrowly. Compared with previous proposals to extend effective IP protection to fashion design, H.R. 2511 is more of a sui generis protection aimed at the particularities of the fashion industry. It was the result of intensive negotiations between parties of conflicting interests, and has been tailored to address specific yet ubiquitous problems in the fashion industry. Download Full Article (PDF) Cite: 2011 Duke L. & Tech. Rev. 011
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 substituted by that of another analyst, and the Court held that producing a surrogate witness who was not sufficiently involved in the analysis violates the confrontation right. The presumption of infallible technology is fading, and courts may soon realize programmers have greater influence over the ultimate outcome of forensic tests than do the technicians who rely on such analytical tools. The confrontation right, so bolstered by recent cases, may encompass defendants’ right to demand testimony from the programmers of machines performing forensic analyses. The Bullcoming decision is certain to affect whether the right to confront the programmer will be recognized. Download Full Article (PDF) Cite: 2011 Duke L. & Tech. Rev. 010
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 inventors to modify the scope of their claimed inventions, even after the patent issues, is in direct tension with the concepts of public notice and the public domain. The Patent Act currently permits broadening of claims so long as a reissue application demonstrating intent to broaden is filed within two years of the original patent issue. Over the years, however, this relatively straightforward statutory provision has sparked numerous disputes over its meaning and application. On September 8, 2011, the Court of Appeals for the Federal Circuit heard oral arguments or In re Staats. In this case, Apple Computer, Inc. appeals the rejection of a continuation reissue patent application. The U.S. Patent & Trademark Office and the Board of Patent Appeals and Interferences rejected the application on the grounds that Apple attempted to broaden the scope of its patent claims in a manner not “foreseeable” more than eight years after the patent first issued. Apple contends that the language of the