Publications and Announcements

Patent Royalties Extending Beyond Expiration: An Illogical Ban From Brulotte to Scheiber

Patents & Technology

By: Michael Koenig A recent decision by the Seventh Circuit Court of Appeals, Scheiber v. Dolby Laboratories, Inc., called into question, yet dutifully applied, the somewhat disfavored Supreme Court patent case of Brulotte v. Thys Co. For thirty-eight years, Brulotte has served as an absolute prohibition on the collection of any patent royalties extending beyond the expiration date of the patent. As Justice Douglas stated in writing for the eight-Justice majority, “a patentee’s use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se.” Ostensibly, this concise and easily-applied exposition of the law seems sensible enough. But, the devil is in the details. This iBrief highlights the flawed reasoning underlying Brulotte as evidenced by its application in Scheiber, but ultimately concludes that overruling the case may be of little help to Mr. Scheiber in his suit against Dolby. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0005

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The Pros and Cons of Online Dispute Resolution: An Assessment of Cyber-Mediation Websites

eCommerce

By: Joseph W. Goodman Due to increasing use of the Internet worldwide, the number of disputes arising from Internet commerce is on the rise. Numerous websites have been established to help resolve these Internet disputes, as well as to facilitate the resolution of disputes that occur offline. This iBrief examines and evaluates these websites. It argues that cyber-mediation is in its early stages of development and that it will likely become an increasingly effective mechanism for resolving disputes as technology advances. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0004

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Reality Bites: How the Biting Reality of Piracy in China Is Working to Strengthen Its Copyright Laws

Copyrights & Trademarks

By: Graham J. Chynoweth This iBrief discusses how persistent international concern and emerging domestic concern over Chinese intellectual property theft have helped give sharper teeth to the Chinese copyright regime in the past two years and how these new laws may leave bite marks in the future. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0003

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The Case for National DNA Identification Cards

Health & Biotechnology

By: Ben Quarmby Foes of the United States have demonstrated their ability to strike at the heart of this country. Fear of renewed attacks and a desire for greater national security have now prompted many to call for improvements in the national personal identification system. In particular, the possibility of a national identification card containing the carrier’s DNA information is being seriously considered. However, this raises difficult questions. Would such a card system, and the extraction of individuals’ DNA it entails, violate the 4th Amendment of the Constitution? This article will show that such a card system could in fact be found to be constitutional under the law of privacy as it stands today. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0002

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Political E-Mail: Protected Speech or Unwelcome Spam?

Media & Communications

By: Mark Sweet Candidates for political office are using unsolicited bulk e-mails to reach the electorate. Commonly known as “political spam,” this campaign tactic is an inexpensive supplement to television, radio, and print ads. Advocates claim that campaigning via the internet reduces candidates’ dependence on fundraising, but critics detest political spam as the latest nuisance. This iBrief examines the legal basis for political spam, distinguishes political spam from analogous regulated speech, and argues that political spam serves an interest worth protecting. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0001

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Mom & Pop v. Dot-Com: A Disparity in Taxation Based on How You Shop?

eCommerce

By: Jaime Klima With the extension of the Internet Tax Freedom Act, concern has resurfaced over whether and when shoppers will be forced to pay state sales taxes on purchases made over the Internet. In fact, consumers should be paying sales tax on all Internet purchases, though few actually do. This iBrief explores the current law on taxation of e-commerce purchases and argues that small modifications by state tax administrators will align the tax treatment of mom & pop stores and e-retailers. Download Full Article (PDF) Cite: 2002 Duke L. & Tech. Rev. 0028

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Patentable Subject [Anti]matter

Patents & Technology

By: Kristoffer Leftwich The statements, “The laws of nature,” “the principles of nature,” “the fundamental truths,” etc., are not patentable, have been oft repeated but seldom understandingly used. They have led to misunderstanding and much confusion, not limited to members of the bar. In fact, the words… are all words of broad and also elastic meaning and are frequently used carelessly and without any attempt at refined distinctions. Download Full Article (PDF) Cite: 2002 Duke L. & Tech. Rev. 0027

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Defining a New Ethical Standard for Human in Vitro Embryos in the Context of Stem Cell Research

Health & Biotechnology

By: Sina A. Muscati This iBrief discusses some of the social, ethical and legal considerations surrounding the use of unimplanted, in vitro embryos in stem cell research. It proposes that a new ethical standard be elucidated for these embryos. The iBrief gives an overview of two proposals for such a standard at opposite ends of the spectrum: treating the in vitro embryo as a legal person versus treating it as mere property. It argues against both approaches. The former can have undesirable social implications including undue interference with female reproductive autonomy, while the latter would objectify potential human life and reproductive potential. The iBrief proposes an intermediate approach that treats the embryo as a special entity. It warns against a model whereby the respect accorded to embryos is made dependent on the attainment of various qualitative or developmental criteria. The complexities surrounding human life, it argues, are too uncertain. What is certain is the embryo’s unique potential for human life, at any developmental stage. This, the iBrief proposes, should be the sole criterion for an embryo’s special status, a status that should be confined within constitutional limits. Download Full Article (PDF) Cite: 2002 Duke L. & Tech. Rev. 0026

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Internet Service Provider Liability for Contributory Trademark Infringement After Gucci

Copyrights & Trademarks

By: Gregory C. Walsh [I]f a manufacturer or distributor intentionally induces another to infringe a trademark, or if it continues to supply its product to one whom it knows or has reason to know is engaging in trademark infringement, the manufacturer or distributor is contributorially responsible for any harm done as a result of the deceit. Download Full Article (PDF) Cite: 2002 Duke L. & Tech. Rev. 0025

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Regulating Functional Foods: Pre- and Post-Market Strategy

Health & Biotechnology

By: Dana Ziker As best we understand the government, its first argument runs along the following lines: that health claims lacking “significant scientific agreement” are inherently misleading because they have such an awesome impact on consumers as to make it virtually impossible for them to exercise any judgment at the point of sale. It would be as if the consumers were asked to buy something while hypnotized, and therefore they are bound to be misled. We think this contention is almost frivolous. Download Full Article (PDF) Cite: 2002 Duke L. & Tech. Rev. 0024

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