Publications and Announcements

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

Patents & Technology

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

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Lights, Camera, Lawsuit

Copyrights & Trademarks

By: A. J. Bedel As the speed of Internet access improves, the film industry will need to explore its options for eliminating the downloading of digital movie files. After examining the successes and failures of the music industry in its battle with peer-to-peer networks, the film industry has begun to follow its predecessor. However, the nature of film as an entertainment medium is quite different than that of music. As a result, the film industry could implement creative solutions to this problem that would not have been available to the music industry. A recent study shows that most films available on the Internet have been leaked by industry insiders. By implementing an increasingly publicized use of trade secret litigation, the film industry could take a tough and effective stance against the digital dragon. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0031

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Pfaff Revisited: How the Federal Circuit Has Elaborated on the “Ready for Patenting” Standard

Patents & Technology

By: Jennifer F. Miller In Pfaff v. Wells Electronics, Inc., the Supreme Court established a two-part test to determine when an invention is “on sale” for purposes of Title 35 U.S.C. §102(b). In addition to being the subject of a commercial offer for sale, an invention must be “ready for patenting” in order to be considered “on sale.” Since Pfaff, the Court of Appeals for the Federal Circuit has had numerous opportunities to expound upon how inventors can fulfill the latter condition. This iBrief will discuss the factors the Federal Circuit has determined are indicative of an invention’s “ready for patenting” status. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0030

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3D Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?

Patents & Technology

By: Ben Quarmby With the advent of protein engineering, the determination of a protein’s 3D structure has taken on a whole new importance. This has prompted some to call for the United States Patent and Trademark Office [USPTO] to break with tradition and allow patents on the three-dimensional structural information of proteins. This iBrief will discuss whether such information would constitute patentable subject matter under 35 U.S.C. §101, and how much protection patents on this information could actually confer. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0029

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Europe: Open Market… Open Source?

International

By: Heather Forrest The recent Proposed Directive on the patentability of computer-implemented inventions takes the European Community a step further down the road towards patents for computer software. If the goal of the Proposed Directive is to facilitate market entry for individual programmers and small and medium enterprises — as it must be within the framework of the European Treaty — then the European Commission should not be expanding intellectual property rights in technology goods, which, by their very nature, will lose value to the public long before their monopoly rights expire. Rather, the Commission should look to the open source movement and other, more temporal means of protection to spur innovation and increase Europe’s competitiveness on the worldwide market for technology goods. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0028

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Are Biotech Crops and Conventional Crops Like Products? An Analysis Under GATT

Health & Biotechnology

By: Julian Wong The transatlantic debate over the use of genetically modified organisms (“GMO”s) as food products, with the US as a proponent on one side, and the European Union (“EU”) as an opponent on the other, is set to take center stage. The US has initiated formal legal action under the World Trade Organization Dispute Settlement System, charging that the EU violates several agreements of international trade law, including Article III of GATT, an anti-protectionist measure which forbids a country from favoring its own products over imported “like products.” The US claims that GMOs and conventional crops are “like products,, and that the EU moratorium on GMOs thus violates Article III. This iBrief assesses the US “like products” claim, most notably in light of Asbestos, a recent WTO case which provides important guidance for determining likeness under four criteria. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0027

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Fairplay or Greed: Mandating University Responsibility Toward Student Inventors

Patents & Technology

By: Carmen J. McCutcheon Over twenty years have passed since the enactment of The Patent and Trademark Law Amendments Act (Bayh-Dole Act) and universities continue to struggle with their technology transfer infrastructures. Lost in that struggle are those who could be considered the backbone of university research: the students. Graduate and undergraduate students remain baffled by the patent assignment and technology transfer processes within their various institutions. Efforts should be undertaken by universities to clarify the student’s position in the creative process. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0026

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Unintended Consequences: State Merger Statutes and Nonassignable Licenses

Copyrights & Trademarks

By: Joshua G. Graubart The confused state of most state corporate merger statutes allows many intellectual property licenses to find their way into unintended hands by way of corporate merger, in spite of non-assignment clauses. Clearly a detriment to licensors, corporate licensees too should be wary of depending upon the merger statute; a court ruling may not go their way. The states must clean up their collective act and bring some much needed certainty to a highly unpredictable intersection of corporate and intellectual property law. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0025

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Online Defamation: Bringing the Communications Decency Act of 1996 in Line With Sound Public Policy

eCommerce

By: Ryan W. King According to the Communications Decency Act of 1996, a provider of an interactive computer service cannot be held liable for publishing a defamatory statement made by another party. In addition, the service provider cannot be held liable for refusing to remove the statement from its service. This article postulates that such immunity from producer and distributor liability is a suspect public policy, and argues that the statute should be amended to include a broad definition of “development” and a “take-down and put-back” provision. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0024

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Strengthening the Distinction Between Copyright and Trademark: The Supreme Court Takes a Stand

Copyrights & Trademarks

By: Jessica Bohrer Until recently, the question of whether §43 of the Lanham Act prevented the unaccredited copying of an un-copyrighted work was an open one. However, in Dastar v. Twentieth Century Fox, the United States Supreme Court speaks directly on this issue, emphasizing the distinction between copyright and trademark protections and cautioning against “misuse or overextension” of trademark protections into areas traditionally covered by copyright or patent law. This iBrief assesses the importance of such line drawing and explores the implications of this decision. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0023

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