Publications and Announcements

The End of Net Neutrality

Media & Communications

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 and free markets, others fear the ruling could jeopardize the future of the Internet. This iBrief examines the potential end of “net neutrality” and concludes that new federal regulations are unnecessary because antitrust laws and a competitive marketplace will provide consumers with sufficient protection. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0015

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

Health & Biotechnology

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 a Hagahai man in Papua New Guinea, demonstrate just how volatile this issue has become. This iBrief examines how, in light of such “ethically questionable” patents, the U.S. Patent Office has failed to implement any procedures to identify or curb patent applications involving indigenous peoples. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0014

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

Copyrights & Trademarks

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 injunctive relief, the process by which this relief is issued is rapidly devolving into rubber-stamping by the courts. This iBrief argues that courts should (1) recommit themselves to the principles of equity before granting injunctions and (2) seriously apply the specificity requirements of Rule 65(d) of the Federal Rules of Civil Procedure to avoid overly broad orders. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0013

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

Copyrights & Trademarks

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 must be licensed before copyrighted music can be used legitimately. This iBrief examines what legal rights are implicated by podcasting by analyzing U.S. copyright law and comparing related technologies. This iBrief concludes that onerous licensing requirements are unnecessary, and for podcasting to realize its potential, a simple licensing framework must be established. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0012

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

Media & Communications

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 in news coverage and the greater reliance by the public on the Internet as a news source creates further problems as to who should qualify for federal shield law protection. This iBrief argues that a functional definition of “journalist” can be created to shield journalists from compelled source disclosure so as to protect the free flow of information to the public, but limits must be set to prevent abuse of such protection. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0011

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

International

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 the U.S., this iBrief predicts that the intellectual property provisions in the final text of the U.S.-Thailand FTA, which is currently being negotiated, will be very similar to the provisions in previous FTAs that the United States has negotiated with other developing countries. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0010

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

International

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 analogous grabs in the past, declared the Human Genome the heritage of humanity. The UNESCO Declaration provided, first, that the heritage shall not, in its natural state, give rise to financial gains and, second, that countries establish an international framework to make the benefits from genome research available to all. This iBrief will first examine Grotius’s Mare Liberum to determine whether international law precedent indeed bars the private appropriation of a common heritage. Second, the iBrief will revisit the framework developed by Pardo for the exploitation of the mineral resources of the ocean floor and analyze whether it could serve as a model for an international framework for sharing the benefits of current genome research. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0008

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Unnecessary Indeterminacy: Process Patent Protection After Kinik v. ITC

Patents & Technology

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 courts do not apply to exclusion actions before the International Trade Commission. This iBrief argues that this decision is problematic for three reasons: (1) the Federal Circuit’s decision is inconsistent with the ITC’s longstanding tradition of consulting the patent statute when adjudicating exclusion actions under 19 U.S.C. § 1337, (2) the court’s suggestion that the ITC should be given broad discretion to resolve conflicts between the patent statute and the Tariff Act is at odds with the Chevron doctrine, and (3) if the ITC employs the broad discretion that Kinik confers to it by excluding more foreign art than Federal district courts could lawfully exclude under the patent statute, the enforcement of domestic patent policy in the United States could conceivably violate obligations of non-discrimination (Article 27.1) and burden-shifting (Article 34) imposed by the TRIPS Agreement. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0009

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

Patents & Technology

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 1940s as a doctrine distinct from, but closely related to, standard antitrust analysis. The U.S. Court of Appeals for the Federal Circuit recently overturned an International Trade Commission order that held unenforceable, on the grounds of patent misuse, six patents licensed as a package by U.S. Philips Corporation. The Federal Circuit’s decision raises the question of just how much remains of the doctrine of patent misuse. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0007

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

Media & Communications

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 unless broadband providers have the ability to discriminate on the basis of content and charge Internet video providers that compete with their own video services, the growth of the Internet will be stunted, as broadband providers will not improve the capacity of their networks. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0006

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