February 6 / Blogs, Computing, Copyright

YouTube’s ContentID Copyright Infringement Flagging System

Abstract: The idiosyncrasy of the Internet often invites colorful analogies in its description: high seas and piracy, Wild West and lawless frontier. This is not undeserved; despite great strides over the course of its development, the Internet remains unexamined and unregulated in many ways, and the regulations that do exist are largely self-governed. Copyright law in particular has proven contentious for lawmakers who are forced to balance digital rights management on a massive scale with the rights of end users. Nowhere is this conflict more apparent than in the practices of the video-sharing juggernaut YouTube.

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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 / Blogs, Patent

Antitrust Issues in Reverse Payment Settlements: A Case Study

Abstract: Drug manufacturers often spend millions on research and development for drugs that never make it to market. As a result, manufacturers need to recoup these R&D costs in th
e sale of drugs that do make it to market. They often rely on the patent system, and the exclusivity it provides, to accomplish that recoupment. Drug manufacturers have turned to reverse payment settlements to extend that exclusivity and generate higher profits from a particular drug. Reverse payment settlements arise in the context of generic drugs. A patentee will offer to pay a generic manufacturer, an alleged infringer, to delay the release of the generic drug to the market. The payment is a purchase by the patentee to continue its exclusive right to sell its product; a right it already holds by virtue of the patent. For this reason, the practice is suspect of antitrust violations. In Federal Trade Commission v. Actavis, Inc., the Federal Trade Commission (FTC) filed a complaint alleging that reverse settlement payments were unfair restraints of trade and therefore violated federal antitrust laws. The Supreme Court held that reverse payment settlements in patent infringement litigation are not presumptively unlawful but can sometimes violate antitrust laws, to be determined on a case-by-case basis.The settlements are not immune from antitrust attack even if the agreement’s anticompetitive effects fell within the scope of the exclusionary potential of the patent.

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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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March 31 / Blogs, Computing, Trade Secret

The Growing Concern Regarding US Corporate Trade Secrets

Abstract: Globalization has produced many benefits for United States corporations, but a significant detraction has been the emergence of trade secret theft. As technology advances, trade secret theft has become an even more persistent threat in the general marketplace. There are various ways trade secret theft can occur, but it is increasingly common for the theft to involve cyberspace, especially as these corporations expand into foreign markets. Consequently, Congress has taken a significant interest in curbing trade secret theft, as is evidenced by the various proposals before them today. These proposals offer varying solutions to trade secret theft, which range from creating a private cause of action in federal courts to specifically targeting foreign entities and governments engaged in cyber espionage, such as China. Before analyzing a number of current proposals, it is necessary to define trade secrets and understand their current legal status in the intellectual property landscape.

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March 31 / Blogs, Patent

Deference Runs Deep: The Ill Effects of Alice

Abstract: Under 35 U.S.C §101, a patent must be either a new and useful process, machine, manufacture, or composition of matter and, thus, must not lay claim to any idea that isabstract. This abstraction can be increasingly difficult to eliminate when drafting software claims because the implementation of code onto a generic computer is somewhat abstract in nature. Areas of software that are, and are not, abstract have been hotly debated and a thorn in the side of court system. Hence, when Justice Thomas opined that the Supreme Court “need not labor to delimit the precise contours of the ‘abstract ideas’ category” in Alice Corp. Pty. Ltd. v. CLS Bank Intern., he must have realized that abstaining from such a seminal issue would create ripples, if not waves, within the already confusing realm of software patents. Almost two years later, the United States Patent and Trademark Office (“USPTO”) and the Federal Circuit are still failing to distinguish a bright-line rule for such a vague category, and, therefore, the concept of an abstract idea is still an issue. If this is not resolved quickly and clearly through the Federal Circuit or Supreme Court, or even through a legislative action by Congress, software patents will assuredly diminish in number and patent persecutors will continue to draft with uncertainty.

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March 31 / Blogs, Trademark

Not Quite a Marathon: The TTAB’s Effortless Denial of the “Marathon Monday” Trademark

Abstract: The brackets have finally been released for the annual NCAA Men’s Basketball Championship, commonly called March Madness.  The term “March Madness” evokes images of massive upsets, busted brackets, and sounds like the buzzer and Bill Raftery’s voice.  “March Madness” is just one example of a sports event that truly owns a time of the year and a name that fosters a powerful resonance in American culture.  Other examples include Monday Night Football, Sunday Night Football, and Super Bowl Sunday.

The Boston Athletic Association (BAA) thought that “Marathon Monday” was a unique day and term that specifically referred to the Boston Marathon.  In late October 2015, however, the U.S. Patent and Trademark Office’s Trial and Appeal Board (TTAB) ruled that “Marathon Monday” does not point “uniquely and unmistakably” to the BAA.  The TTAB was correct in denying the trademark, because Marathon Monday is not an event that is specifically associated with the Boston Marathon.  Beginning in the 1970’s, marathons have become incredibly popular throughout the United States, and that meant that there was a high probability that the term “Marathon Monday” would be used in many different ways.  The BAA should have attempted to trademark the term in the 1970’s, because now the Disney Marathon and New York Marathon both use the term “Marathon Monday.”

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March 31 / Blogs, Copyright

Infringe Now, Apologize Later: Class Action as a Viable Remedy for Copyright Infringement

Abstract: Spotify launched in 2008 into a new music streaming market that was revolutionizing the way that consumers listened to and purchased music. The primary attraction of streaming services is the access to a vast number of songs, often for a flat fee or even free. While these new streaming platforms have helped contribute to a decline in piracy and rising profits in the music industry , it also may be causing song writers to lose money.  Spotify’s compensation model pays out royalties to the record labels, which then compensate the artists and performers. However, Spotify cites the record labels as the reason that artists are not getting paid, but that explanation glosses over whether or not Spotify has infringed upon the copyrights by streaming songs that the company does not have the license to. The streaming service is currently facing the threat of two class action lawsuits that allege that their payment model infringes song writers’ copyrights. The two questions, here, are: Has Spotify infringed upon the copyrights of owners of works that the service streams? Will a class action suit be the remedy for infringement, if infringement can be shown?

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March 31 / Blogs, Copyright, Technology

Who’s Fault is it Anyway? The Modern State of 3D Printing Copyright Liability

Abstract: When new technology arises, lawmakers struggle to keep up: how do I perform the balancing act of managing risk through regulation without stymying innovation. An ongoing struggle is the 3D printer and its copyright liability. 3D printers take a complicated manufacturing process and puts in our homes instead of a factory. The ease in which a person can create an object at home is an incredible feat, but it comes with consequences. Specifically, owners of copyrighted images are weary of their products being reproduced at home and sold in a secondary market. This article briefly describes the source of their concerns and reviews the copyright issues that arise in the world of 3D printing.

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