Publications and Announcements

The Clone Wars: The Growing Debate Over Federal Cloning Legislation

Health & Biotechnology

By: John Garvish As readers of science fiction are well aware, the term “clone” refers to asexually produced offspring, that is, offspring produced by a process of cell-division which does not begin with the union of two sex cells. A clone is the genetic twin of the cell donor. Propagation of plants by this method is, of course, commonplace, but mammalian reproduction in this fashion would indeed be a revolutionary accomplishment, with profound and disturbing implications. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0022

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Virtual Las Vegas: Regulate or Prohibit?

CyberCrime

By: Cara Franklin With online gambling becoming increasingly accessible and popular, state and federal politicians are asking themselves how to make the prohibition on online gambling effective. Nevertheless, questions still linger as to whether outright prohibition is truly the right answer. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0021

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International Upheaval: Patent Independence Protectionists and the Hague Conference

Patents & Technology

By: Kyle Grimshaw International lawmakers presently are negotiating a treaty that would not only allow U.S. courts to grant summary judgment in patent infringement suits if a court in Canada or Europe previously found patent infringement, but would actually require it. This paper examines whether courts in the United States should be allowed to find patent infringement based solely upon the fact that foreign courts had previously found patent infringement. The author concludes that changing the law to allow this practice is not sound policy. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0020

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The Complexities of On-Line Mutual Fund Advertising: A Summary of the Relevant Regulations

eCommerce

By: Corey Ciocchetti As the investment marketplace advances with current technology, paper-based advertising has quickly been supplemented by on-line advertising. Interestingly, both the Securities Exchange Commission and the National Association of Securities Dealers are treating this new medium similarly to the old-fashioned paper-based medium. This iBrief discusses and summarizes the current regulations surrounding one emerging form of on-line advertising – that of mutual funds. This discussion is intended to form a solid foundation from which an interested party may delve further into this emerging area of e-commerce. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0019

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The First Sale Doctrine and Digital Phonorecords

Copyrights & Trademarks

By: Bob Hyde This iBrief follows various phonorecord formats to illustrate the specifics of the First Sale doctrine as it applies to digital phonorecords. The author argues that the disposal of a digital phonorecord by means of distribution infringes an author’s exclusive right to reproduce the underlying musical work and this distribution is not subject to First Sale protection. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0018

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The Future of Database Protection in U.S. Copyright Law

Copyrights & Trademarks

By: Jennifer Askanazi, Glen Caplan, Dianne Descoteaux, Kelly Donohue, Darin Glasser & Emelio Mena In the recent British Horseracing Board case, the English High Court signaled a return to the “sweat of the brow” standard of copyright protection. Although recent attempts have been made in the United States to protect databases under this standard, this iBrief argues that the information economy is wise to continuing protecting this data through trade secret, State misappropriation and contract law until legislation is passed. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0017

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Software Disclosure and Liability Under the Securities Acts

eCommerce

By: Carl C. Carl Can a software company be liable under the securities laws when it sells securities without disclosing that it will not give free updates on current software as new technology makes them obsolete? What exactly must be disclosed and how does one say it without subjecting the company’s business practices to close scrutiny? The Eleventh Circuit recently applied the time-honored standard of meaningful cautionary language to software companies in finding that the disclosures of a software company were enough to avoid liability under the securities laws when the company provided meaningful cautionary language in their prospectus. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0016

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Where the Wild Wind Blows: Genetically Altered Seed and Neighboring Farmers

Health & Biotechnology

By: Jill Sudduth In March 2001, agro-business giant Monsanto won a victory in Canadian Federal Court over Saskatchewan farmer Percy Schmeiser. This case sets international precedent for appropriated seed cases and illustrates the primary concerns American courts must face as they consider Monsanto’s prosecution of 22 cases against American farmers. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0015

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Patent Amendments and Prosecution History Estoppel Under Festo

Patents & Technology

By: Stephen Dirksen, Kyle Grimshaw, Michael Hostetler, Michael Kim & Steven Mesnick On November 29, 2000, the Federal Circuit retroactively reduced the value of nearly 1.2 million unexpired United States patents by announcing a new rule for the somewhat obscure doctrine of prosecution history estoppel. Designed to foster clarity in patent applications, this new pronouncement in Festo Corp v. Shoketsu Kinzoku Kogyo Kabushiki Co. allows for easy copying of some patented inventions and reduces patent owner’s ability to prove infringement. This article outlines the change in the law and discusses the positive and negative consequences of the decision. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0011

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FTC vs. Toysmart

eCommerce

By: Daniel Bronski, Conway Chen, Matthew Rosenthal & Robert Pluscec Last summer, Toysmart agreed to a settlement with the Federal Trade Commission concerning use of its customer information database. Under the terms of the settlement, the defunct Internet toy retailer was permitted to sell customer information without either providing its former customers notice or giving them an opportunity to block the sale or use of their personal information. This issue ignited a privacy-rights maelstrom, but ended anti-climatically for Toysmart; in January, Buena Vista Internet Group, a Disney subsidiary and 60% majority shareholder of Toysmart, agreed to compensate the company’s creditors $50,000 for the privilege of destroying the database. U.S. Bankruptcy Court Judge Carol Kenner approved this plan, subject to the limitation that Toysmart attorneys must retain the list and destroy it (rather than physically transfer it to Buena Vista) when all creditor claims are satisfied. Download Full Article (PDF) Cite: 2001 Duke L. & Tech. Rev. 0010

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