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Joint Defense or Research Joint Venture?: Reassessing the Patent-Challenge-Bloc’s Antitrust Status

Joseph Scott Miller

A patent challenger who defeats a patent wins spoils that it must share with the world, including all its competitors. This forced sharing undercuts an alleged infringer’s incentive to stay in the fight to the finish—especially if the patent owner offers an attractive settlement. Too many settlements, and too few definitive patent challenges, are the result. I have argued previously that a litigation-stage bounty would help correct this tilt against patent challenges, for it would provide cash prizes to successful patent challengers that they alone would enjoy.... Read more about Joint Defense or Research Joint Venture?: Reassessing the Patent-Challenge-Bloc’s Antitrust Status

Toward a "New School" Licensing Regime for Digital Sampling: Disclosure, Coding, and Click-Through

Thomas P. Wolf

Under most circumstances, music writer Johnny Oxbridge would be exhilarated to open his MySpace inbox and find a message from DJ Showtime, a Los Angeles-based producer-rapper whose off-kilter beats—built on some of music’s most obscure sonic scraps—are the object of envy, scrutiny, and emulation by legions of independent hip-hop fans.1 A hip-hop enthusiast with a particular interest in production techniques and digital sampling, Oxbridge was the founder, editor- in-chief, and staff of Oxbeats.com, a website dedicated to cataloging, analyzing, and discussing the work of the genre’s leading p... Read more about Toward a "New School" Licensing Regime for Digital Sampling: Disclosure, Coding, and Click-Through

E-Elections: Time for Japan to Embrace Online Campaigning

Matthew J. Wilson

Communication and social networks play a vital role in the modern world. The role and importance of social networks has been heightened by the advent of the Internet and the new "information age" in which modern society operates. The Internet has had a profound impact upon nearly every society, and it has increasingly assumed indispensable functions.... Read more about E-Elections: Time for Japan to Embrace Online Campaigning

Information Security Policy in the U.S. Retail Payments Industry

Mark MacCarthy

The United States retail payments industry is in the middle of a transition in regard to information security. A substantial number of data breaches have occurred over the last five years, despite substantial compliance with the industry standard, the Payment Card Industry Data Security Standard. There will need to be a move to a higher level of security, and the major challenge is institutional. How can the industry organize itself to move collectively toward this goal?... Read more about Information Security Policy in the U.S. Retail Payments Industry

An Empirical Analysis of District Court Claim Construction Decisions, January to December 2009

James R. Barney
Charles T. Collins-Chase

In the past decade, a number of studies have scrutinized the Federal Circuit’s rate of reversal of district court claim construction rulings. To date, however, there has been little empirical research focusing on district court claim construction decisions themselves. Although district court statistics represent only a “slice in time” before appeal, they are nevertheless important to litigants and trial counsel, who must make various tactical decisions and cost-benefit analyses at the district court level long before considerations of appellate reversal rates come into play.... Read more about An Empirical Analysis of District Court Claim Construction Decisions, January to December 2009

The Google Book Settlement and the TRIPS Agreement

Daniel Gervais

Not long after Google announced in December 2004 that it would include in its search database the full text of books from a number of leading research libraries, two lawsuits—structured as class actions—were filed by a group representing mostly trade authors and a major publisher. One of the key issues was whether Google’s project was defensible as fair use. After several years of discussion, a proposed settlement was reached.... Read more about The Google Book Settlement and the TRIPS Agreement

Antitrust and the Google Books Settlement: The Problem of Simultaneity

Eric M. Fraser

Google Books represents the latest attempt at the centuries-old goal to build a universal library. In 2004, Google started scanning books from libraries around the world. Although it made copyright licensing agreements with some publishers, it did not obtain permission from each rightsholder before scanning, indexing, and displaying portions of books from the stacks of libraries. Unsurprisingly, authors and publishers sued for copyright violations. Google settled the class action lawsuit in a sweeping agreement that has raised suspicion from librarians, users, and the government.... Read more about Antitrust and the Google Books Settlement: The Problem of Simultaneity

Consistency of Confusion?: A Fifteen-Year Revisiting of Barton Beebe’s Empirical Analysis of Multifactor Tests for Trademark Infringement

Kevin Blum
Ariel Fox
Christina J. Hayes
James (Hanjun) Xu

In a typical case of trademark infringement, a plaintiff must show, among other things, that potential consumers would be confused as to the source of a good or service, due to the defendant’s use of a mark (or in the case of trade dress infringement, the same or similar product packaging, design, labeling, etc.) that creates confusion as to source, sponsorship, or affiliation. This inquiry into the likelihood of confusion is most often governed by multifactor tests, the most prominent of which is the test articulated in Polaroid Corp. v. Polarad Electronics Corp. by the U.S.... Read more about Consistency of Confusion?: A Fifteen-Year Revisiting of Barton Beebe’s Empirical Analysis of Multifactor Tests for Trademark Infringement

Examining Patent Examination

Mark A. Lemley
Bhaven Sampat

The United States Patent and Trademark Office ("PTO") receives more applications today than it ever has before. What happens to those applications? Patent prosecutors all have stories and personal experiences. Until quite recently, however, this sort of "anecdata" was all that was available, because the law prevented anyone from ever finding out what happened to patent applications that did not ultimately issue as patents.... Read more about Examining Patent Examination

A Patent Exhaustion Exposition: Situating Quanta v. LGE in the Context of Supreme Court Jurisprudence

Yina Dong

The Supreme Court decided Quanta v. LGE on June 9, 2008, marking the first time the Court had addressed the topic of patent exhaustion in sixty-six years. This paper provides an in-depth analysis of the law of patent exhaustion and analyzes the holding in Quanta in the context of past Supreme Court jurisprudence. In determining when a patent may be exhausted by the sale of a component embodying that patent, Quanta merely followed the test first enunciated by the Court decades ago.... Read more about A Patent Exhaustion Exposition: Situating Quanta v. LGE in the Context of Supreme Court Jurisprudence

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