1 《马凯特知识产权法律评论》(2011夏季号,第2期) - 知识产权与竞争法研究网

《马凯特知识产权法律评论》(2011夏季号,第2期)

   发布时间:2011-08-05 来源:Marquette University Law School

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THE FOURTEENTH ANNUAL HONORABLE HELEN WILSON NIES MEMORIAL LECTURE IN INTELLECTUAL PROPERTY LAW
Mark A. Lemley

The Patent and Trademark Office (PTO) finds itself caught in a vise.  On the one hand, it has been issuing a large number of dubious patents over the past twenty years, particularly in the software and electronic commerce space.  It issues many more patents than its counterparts in Europe and Japan; roughly three-fourths of applicants ultimately get one or more patents, a higher percentage than in other countries.  Complaints about those bad patents are legion, and indeed, when they make it to litigation, they are quite often held invalid. Even the ones that turn out to be valid are often impossible to understand; in the information technology industries, there is no lawsuit filed in which the parties don’t fight over the meaning of patent claim terms.  The natural reaction is to say that the PTO needs to do more than it does to make sure it is awarding patents only to those who deserve them. Prof. Lemley discusses the problems the USPTO faces, and what will not be successful in fixing the problems and what may.

INTELLECTUAL PROPERTY COLLOQUIUM SERIES
CANADA AND THE THREE-STEP TEST: A STEP IN WHICH DIRECTION?

Ysolde Gendreau

In her lecture, Prof. Gendreau discusses the relationship between Canada and the United States when it comes to Copyright law.  More specifically, Prof. Gendreau discusses the concept of fair dealing in education in Canada, and then discusses the Canadian provision in the context of international treaties, in particular the TRIPS Agreement and the Berne Convention.

COERCION WILL NOT PROTECT TRADEMARK OWNERS IN CHINA, BUTAN UNDERSTANDING OF CHINA'SCULTURE WILL: A LESSON THE UNITEDSTATES HAS TO LEARN
Dalila Hoover

China remains the single largest producer of pirated and counterfeit goods in the world.  The purpose of this article is to explore the different factors that have impeded effective trademark protection in China.  In particular, this article analyzes the cultural barriers between the United States and China, and in doing so, helps one understand the climate of hostility between the two nations when it comes to trademark enforcement.  This article further analyzes the constant pressure exercised by the United States against China, which has led to the adoption of trademark laws by the Chinese government at the national and international level but has proven to be ineffective in the short-run.  This article also provides an overview of Chinese history and culture to establish the foundation upon which the present trademark legal system was built, and to explain how these cultural mores are inconsistent with intellectual property rights as perceived under Western culture.  Finally, this article explores an alternative to the coercive approach adopted by the United States to protect trademark owners in China.  It is based upon the EU-China model which promotes leniency, understanding, and cooperation in the long-run.

INTELLECTUAL PROPERTY RIGHTS AND EXCLUSIVE (SUBJECT MATTER) JURISDICTION: BETWEEN PRIVATE AND PUBLIC INTERNATIONAL LAW
Benedetta Ubertazzi

In the recent past, prestigious courts around the world have refused to adjudicate cases relating to foreign registered or unregistered intellectual property rights (hereinafter: IPRs), where the proceedings concerned an IPR infringement claim or where the defendant in an IPR infringement action or the claimant in a declaratory action to establish that the IPR is not infringed pleaded that the IPR is invalid or void and that there is also no infringement of that right for that reason (so called validity issues incidentally raised). In these cases the refusal to adjudicate the foreign IPRs infringement and validity claims was grounded on exclusive subject-matter jurisdiction (exclusive jurisdiction) rules.  According to those rules, the State that granted or recognized the IPR has the exclusive jurisdiction to address claims related thereto, independent of its also having personal jurisdiction over the defendant.  This paper adopts and develops a thesis according to which exclusive jurisdiction rules in IPRs cases are not suggested by public international law; are actually illegal according to its rules on the denial of justice and on the fundamental human right of access to courts; and therefore, must be abandoned not only with respect to IPRs infringement issues, but also to IPRs validity claims raised as a defense in infringements proceedings, as the majority of the scholars maintain and the most recent academic initiatives like the ALI Principles and the CLIP Project codify.

Using Intellectual Property to Secure Financing afterthe Worst Financial Crisis Since the Great Depression
Brian W. Jacobs

Ever since Thomas Edison first used his patent on the incandescent electric light bulb as collateral to secure financing to start his company, the General Electric Company, intellectual property has been able to be used as collateral.  Although not immediately thought of when securing financing, using intellectual property as collateral has occurred ever since the late 1800’s with Thomas Edison.  In recent years, using intellectual property as collateral to secure financing has become quite popular.  However, as with most financing in general, the use of intellectual property as collateral has slowed due to the first recession in the twenty-first century.  Even though there have been signs of the recession coming to an end and recovery starting in the beginning of 2010, will the use of intellectual property to secure loans ever bounce back?

ACTA Fool or: How Rights Holders Learned to Stop Worrying and Love 512's Subpoena Provisions
Colin E. Shanahan

This comment argues against the adoption of the proposed Anti-Counterfeiting Trade Agreement.  Specifically, that the ACTA provision establishing “[p]rocedures enabling right holders who have given effective notification of a claimed infringement to expeditiously obtain information identifying the alleged infringer” should not extend the current subpoena  provisions of 17 USC § 512(h) to encompass p2p networks.  The Comment discusses the current U.S. law and cases, why the rights holders want the ACTA Agreeement and argues why the ACTA agreement should not be adopted.

Balancing Acts: Using a Mixed Test to Ensure BetterResults in Rule of Reason Patent Misuse Analysiswithin Section 337
Syvil Shelbourne

This Comment addresses the tensions faced by the Federal Circuit in reviewing the ITC’s patent misuse decisions that address § 337 claims. First, this Comment provides relevant background information by explaining § 337 itself, the administrative power and function of the ITC under § 337, and the Federal Circuit’s jurisdiction and deferential stance to the ITC regarding § 337 appeals.  Subsequently, this Comment examines both per se and rule of reason patent misuse defenses, within the context of ITC appeals to the Federal Circuit of § 337 claims, by laying out their doctrinal frameworks as set out by the Federal Circuit in U.S. Phillips Corp. v. ITC.

Medimmune v. Genentech: A Game-Theoretic Analysisof the Supreme Court's Continued Assault on thePatentee
Nicholas G. Smith

In 2007, the Supreme Court decided MedImmune v. Genentech.  This decision changed the landscape of the patent licensing field by holding that a licensee in good standing may challenge the validity of a patent in a declaratory judgment action.  By adding to the cost of entering a license agreement, MedImmune erodes one characteristic of a patent from which it derives its worth—the patent’s ability to be licensed.  Unfortunately, this has decreased the incentive to innovate by decreasing the value of a patent.  This Comment seeks to illustrate, using a game theoretic model, how MedImmune will increase litigation against patent licensors, which in turn will increase the risk of entering a license agreement and decrease the value of a patent.

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