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March 8 / Article, Other Intellectual Property

Dilemma of Trade Dress, Informational Values and Enigmatic Distinctiveness; Semiotics Illuminating the Status of Distinctiveness

Abstract: From info-economic point of view, the growing kinds of interactions between producers and consumers have occupied a large extent of commercial dialogues. The way by which a trade dress as an example of trademarks could promote the quality of an info-commercial system is our first question. At the same time, we know that the trademark law system, each of word mark and trade dress plays its own communicational roles based on laws which govern each of lingual and visual systems of communication. However, as a matter of fact, assimilating the concepts “trademark” and “trade dress” has invariably been posing the fundamental question of determination of “distinctiveness”. In this article we have tried to analyze and streamline the question of distinctiveness of trade dress based upon semiotics. Reaching at the conclusion that in terms of distinctiveness trade dress should be treated as a “pre-occurred” and explore-able event in relation to consumers not as a “presume-able” matter in relation to trade dress itself.

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February 7 / Article, Patent

The Role of Patents in the Fight Against Superbugs: Are Patent Laws Discouraging Investment in Promising Superbug Treatments?

Abstract: Pharmaceutical companies invest significant resources in identifying and developing treatments for a variety of infectious diseases, including the current worldwide threat of superbugs. It is essential that these companies commercialize these treatments and recoup their investments. Therefore, as a policy matter, it is important to incentivize pharmaceutical companies to reap these financial rewards in order to motivate innovation and research. Patents provide an incentive—a twenty-year term of marketing exclusivity. However, as a result of the Mayo/Alice eligibility criteria that distinguish patent-ineligible laws of nature, natural phenomena, and abstract ideas from patentable inventions, the United States Patent and Trademark Office is likely to reject patents for many superbug treatments, such as antibiotics found in nature. Consequently, other methods of incentivizing the development of superbug treatments, such as delinkage mechanisms, may be necessary.

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November 27 / All Articles, Article

Reform of H-1B Visas

Abstract: Originally, H-1B visas were intended to allow employers to address shortages of skilled labor in the workplace by temporarily hiring highly skilled foreign workers only when they are unable to obtain employees with needed skills from the U.S. workforce. In the 1990’s, Congress raised the initial cap of 65,000 H-1B visas a year to 115,000 for fiscal years 1999 to 2000, and to 107,500 for fiscal year 2001 to address a shortage of computer science specialists, but there is now a growing number of U.S. workers who are highly skilled in science, technology, engineering, and math (STEM) fields unable to find work. Even though there is an abundance of U.S. citizens who are more educated than nearly half of all H-1B workers, the H-1B program is often abused to hire cheaper workers from abroad at the expense of their U.S. citizen counterparts. In order to address this issue, the Senate has proposed various bills to reform the H-1B visa program. Strategies include reallocating H-1B visas to prioritize higher skilled workers, increasing the transparency of employment statistics, and raising the income of H-1B workers. However, these efforts are inadequate because they do not sanction employers who fail to comply with the new rules in these bills and would not protect the program’s intent of supplementing the U.S. workforce with skilled foreign workers only where there are no U.S citizens with the appropriate skill sets available.

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March 31 / Article, Other Intellectual Property

Equine Cloning: An Investigation of Legality and Prospects

Abstract: In equestrian sports, the horses’ abilities will largely determine the outcome of any match or competition. In the competitive equestrian world, the ideal horse is not only the best playing animal, but is also a model specimen of its breed. Investing in a horse that carries good genes ensures a return on investment because the genes can be passed to many progeny through well crafted breeding programs. Thus breeding competitive horses has evolved into a highly studied and regulated industry. A world-renowned polo player, Adolfo Cambiaso, together with Crestview Genetics, has popularized cloning in the world of breeding competitive horses. Historically, equine breeders strove to produce the best competition horse, by selecting two talented horses to breed. Technological advances, like artificial insemination allowed for horses in different locations to be bred. Now, cloning allows the genetic material of a talented horse to be identically copied in creating one, or multiple offspring. Currently, it is unclear what the impact cloning will have on equine sports both legally and athletically.

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March 31 / Article, Patent

Awarding Enhanced Damages in Patent Infringement Cases

Abstract: This term the Supreme Court will take up the issue of awarding enhanced damages in patent infringement cases. Two separate cases petitioned the court to take up the issue after defendants were spared enhanced damages following some questionable activity. The current test used in awarding enhanced damages is a two-part test implemented by the Federal Circuit that incorporates an objective and subjective componentThis article will look at the test that is currently implemented, the cases at issue, and the arguments on both sides.

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February 9 / Article, Trademark

Mascot Madness: Are Characters in Times Square Violating Trademark Law?

Abstract: In recent years, New York City’s Times Square has become overrun with life-sized cartoon characters and superheroes.
The costumed performers – often undocumented immigrants – wander the streets dressed in costumes, posing for pictures with tourists and demanding money in return. Their solicitations are often aggressive. Refusals to pay have often escalated into violent, even criminal encounters. The activity in Times Square has also raised trademark issues. The First Amendment generally protects the costumed performers’ right to dress up like characters in public. The First Amendment also protects the costumed performers, so long as they ask for “donations” and “tips.” However, copyright and trademark owners, such as The Walt Disney Company (“Disney”) and Sesame Workshop, among others, have a legitimate interest in protecting their intellectual property. Such interests include their rights to terminate unlicensed use and to protect against consumer confusion and trademark dilution. Courts have not yet addressed whether or not the costumed performers have infringed on trademarked characters. This article explores related case law to determine whether or not the performers’ solicitations constitute trademark infringement, and the substance of the performers’ defenses to infringement if it exists.

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February 9 / Article, Patent

A Review of the Modern IPR Process

Abstract: In the pharmaceutical industry, patents protect a drug-maker’s right to exclusively produce a drug or issue a license for its production by another entity. In either instance they have the ability to control distribution and, more importantly, the cost. This exclusivity exists until the time the
patent term expires, at which point other manufacturers can begin producing a generic versions of the drug. Production of generic drugs significantly cuts the market share of brand name drug as well as drives down the overall cost of the drug. This makes patent protection a big concern for pharmaceutical companies spending years and billions of dollars in drug development. Once a patent is issued for a drug there is still a chance that the validity of the patent may be challenged. One such way a purported infringer or competitor can challenge a patent’s validity is through an inter partes review (IPR) Process allowed by the United States Patent and Trademark Office (USPTO). Until recently the use of this process by generic drug-makers to invalidate patents has had no success. However, a recent decision by the Patent Trial and Appeal Board (PTAB) gave generic drug-makers their first break when they invalidated the patent for the multiple sclerosis drug Gilenya. The following will review the IPR process and examine the decision by the PTAB to invalidate the Gilenya patent under 35 U.S.C §103.

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February 9 / Article, Patent

The CRISPR Patent Battle: Who Will be “Cut” Out of Patent Rights to One of the Greatest Scientific Discoveries of Our Generation?

Abstract: At the center of the United States patent system lies an intricate balance between creating monetary incentives that lead to creation, invention, and discovery, and impeding the flow of the very information that
might permit invention. One such invention, that of a novel gene-editing technology called CRISPR-Cas9, has been called one of the “greatest scientific discoveries in the last century.” In simplest terms, the ability to edit genes (the basis of hereditary traits in living organisms made up of DNA) allows scientists to target a specific mutated gene sequence that leads to disease, cut that region out, and, if necessary, replace that sequence with a “healthy” version. CRISPR-Cas9 has already been applied in experiments to rid mice of Muscular dystrophy, block cells from HIV infection, and cure mice of rare liver disease.

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November 25 / Article, Other Intellectual Property, Technology

Telemedicine & The Courts: Teladoc v. Texas Medical Board as a Case Study

Abstract: Using varied technology platforms to leverage healthcare accessibility has become a principal goal for the venture capitalists that fund tech startups. Today, health
insurance companies such as Aetna and United Healthcare have partnered with telemedicine companies in order to provide the service for its members. Teladoc, Inc., which markets itself as the first and largest telehealth provider in the United States, is one such company. Of all of business generated by Teladoc’s 11.5 million members, one quarter comes from Texas.

Over the course of the past year, however, Teladoc’s ability to continue its services in the state has been on legally tenuous ground due to repeated steps taken by the Texas Medical Board to oust the company from its state. The Teladoc, Inc. v. Texas Medical Board case exemplifies the collision between emerging technology and healthcare law, and serves as a useful study of the treatment such a dispute receives from the court system.

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November 25 / Article, Featured, Other Intellectual Property, Patent

Daraprim and the Pharmaceutical Pricing Paradox: A Broken System?

Abstract: On August 10, 2015, at a cost of $55 million, Turing Pharmaceuticals acquired the exclusive U.S. marketing rights to Daraprim, a drug that treats toxoplasmosis (a life-threatening parasitic infection), from Impax Laboratories. Just a few weeks after the acquisition, Turing announced that, effective immediately, the price of Daraprim would be raised from $13.50 a tablet to $750 a tablet, an increase of over 5,500 percent. The overnight price spike has generated considerable censure from healthcare professionals, politicians and the general public. Yet, Turing Pharmaceuticals is not the only company in recent months to substantially increase the price of one of its brand-name drugs.  Just nine days after Turing’s acquisition of Daraprim, Rodelis Therapeutics announced its acquisition of Cycloserine, a drug used to treat tuberculosis, and subsequently raised the price for 30 capsules of the drug from $500 to $10,800. While public pressure has since forced the price of Cycloserine to be scaled back to $1,050, Turing and Rodelis have shown that pharmaceutical companies can realize substantial upside by targeting old, neglected drugs (often for rare diseases) and refashioning them into high-priced specialty drugs.

In a recent study by the American Association of Retired Persons (AARP), the average prices for brand-name prescription drugs were found to have increased by an average of 13 percent in 2013, compared to the inflation rate the year of just 1.5 percent. The Daraprim and Cycloserine cases, while extreme illustrations, depict a broader trend of increasing U.S. drug and health care costs to patients. The two manufacturers’ pricing decisions illustrate a longstanding tension in the pharmaceutical industry between the need for firms to recoup the high costs associated with bringing drugs to market and keeping drugs affordable for consumers.  To date, neither Turing nor Rodelis faces any lawsuits tied to their pricing decisions for Daraprim and Cycloserine respectively.  However, given what has transpired with Daraprim and Cycloserine, and the need to keep drug and health care costs down, perhaps action should be taken to deter future price spikes on brand-name drugs.  That is, under these circumstances, should the government intervene to curb the considerable price-making power that pharmaceutical companies possess in order to better serve the patients who rely on their brand-name drugs and society at large?

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