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Texas Intellectual Property Law Journal
Volume 18

Issue 3 - Summer 2010


Ramifications of Joint Infringement Theory on Emerging Technology Patents
 
Citation:
18 Tex. Intell. Prop. L. J. 335 (2010)
 
Author:
W. Keith Robinson
 
About:
Associate with Foley & Lardner, L.L.P.
 
Abstract:


Differential Patent Terms and the Commercial Capacity of Innovation
 
Citation:
18 Tex. Intell. Prop. L. J. 373 (2010)
 
Author:
Amir H. Khoury
 
About:
Lecturer, Faculty of Law, Tel Aviv University.
 
Abstract:
During the past four decades much has been written, both in legal and economic literature, about the elements that should determine the scope of patent protection. While one segment of that research advances the view that patent rights (the patent breadth), in and of themselves are sufficient for attaining the optimal degree of socially-desirable patent protection, the other segment contends that the patent term (length) needs to be factored in. My research taps into this debate and emphasizes the need to discontinue the use of a single patent term for all types of patents. Specifically, I propose using a differential patent term, in which duration is contingent on the type of innovation and its underlying technology. Here, I resort to, among other things, the Strasbourg Agreement Concerning the International Patent Classification, a system of classification that can contribute towards applying the patent length factor in an efficient and relatively cheap manner.


Counterfeit Fashion: The Interplay Between Copyright and Trademark Law in Original Fashion Designs and Designer Knockoffs
 
Citation:
18 Tex. Intell. Prop. L. J. 417 (2010)
 
Author:
Kevin V. Tu
 
About:
Attorney, Davis Wright Tremaine LLP, Seattle, Washington.
 
Abstract:
The fashion and apparel industry is big business in both the United States and abroad. With the growth of the fashion industry and the role of the media in disseminating fashion commentary, public awareness about prominent fashion designers and the creations of such designers is at an all-time high. The popularity and status attached to certain designers and their trademark designs, therefore, has led to the rise of “style piracy.” A style pirate will copy a designer’s original creative work to capitalize on the popularity or desirability of the product. The copying can occur in varying degrees, including attempts to pass off counterfeit copies as the original, or the creation of “designer-inspired” products that seek to profit by giving the impression of relatedness to the original. Despite the potential loss of substantial revenue and exclusive control over the use of original designs facing designers, few legal rightsexist to protect these valuable creative and economic interests from misuse by style pirates. Specifically, United States laws extend spotty legal protections, at best, against counterfeit and knockoff designs. The Copyright Act fails to provide adequate protection because its protection is generally limited to non-utilitarian designs. Thus, the inherent usefulness of apparel traditionally exists as a barrier to protection through copyright law. Given the shortcomings of copyright law, many designers have turned to trademark law and secondary meaning in trademarks as a means of circumventing the requirements of copyright law in order to defend against style pirates and achieve some modest level of design protection. Although trademark law has been extended to utilitarian items in some cases, only a small portion of designs will ever reach the level of recognition and notoriety required for this type of protection. The interplay of both copyright and trademark law in this area highlights (1) the fact that neither copyright law nor trademark law affords sufficient protection for the original designs of fashion designers, and (2) the need for a more comprehensive plan for protecting creative but utilitarian works such as fashion designs. Based on the shortcomings of the copyright and trademark laws to provide adequate rights and remedies for fashion designers, this article argues that the copyright eligibility requirements should be extended to encompass the original and creative elements of fashion designs, such that the framework of copyright law, and not trademark law, becomes the primary method of design protection.


Particularizing Patent Pleading: Pleading Patent Infringement in a Post-Twombly World
 
Citation:
18 Tex. Intell. Prop. L. J. 449 (2010)
 
Author:
Jonathan L. Moore
 
About:
Associate, Bowman and Brooke LLP, Richmond, Virginia.
 
Abstract:
The Supreme Court’s recent jurisprudence has reinvigorated the role of pleading in civil litigation. As a result, in order to survive a motion to dismiss, plaintiffs must now include more detailed allegations that demonstrate a plausible entitlement to relief. This article examines how these changes interact with the pleading requirements for patent infringement litigation. In recent years, the number of patent infringement lawsuits has increased dramatically, in part because of lax notice pleading requirements. This patent litigation explosion imposes exorbitant costs on defendants and has a detrimental effect on innovation. As courts begin to apply the new plausibility pleading regime, this article argues that they should seize the opportunity to rein in abusive patent litigation by requiring particularized allegations of infringement. Adopting this regime effectuates Twombly and Iqbal, reduces the number of nuisance-value patent infringement suits, and begins to address the problems that cause the patent system to inhibit, rather than promote, progress in science and the useful arts.

 
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