United States Supreme Court Cites the Marquette Intellectual Property Law Review

Law professors, like everyone else, have good days and less good days. Then, sometimes, law professors have special days. In these days, something truly unique happens, something that makes law professors especially grateful for their roles as mentors and educators. This past week, I had probably one of the most special days in my law professor career, and it was not about getting tenure, getting promoted or the like (all very special days I can promise!). It was about the success of a student I had the privilege to mentor and supervise, who was one of my very best students, and who made me so very proud. So what happened? An academic dream: the Supreme Court of the United States cited the comment that my former student Lina Monten wrote in 2005, and that we published in the Marquette Intellectual Property Review.

Here is a little more “technical” background. The Supreme Court recently issued its opinion in Kirtsaeng v. John Wiley & Sons, a closely-watched copyright case concerning the issue of whether the “first sale” doctrine of copyright law applies to imported works. Justice Breyer wrote the majority opinion holding that it does, and Justice Ginsburg wrote a dissent (on behalf of herself and Justices Scalia and Kennedy) arguing that it does not. In the course of her dissent, Justice Ginsburg argued that the United States has long taken the position in international negotiations that copyright owners should have the right to prevent importation of copies of their works that they manufactured and sold in another country. (Slip op. at 20-21.) In support of her argument, Justice Ginsburg cited two items, one of which was the comment published in the Marquette Intellectual Property Law Review, written by then-student, now-Marquette Lawyer Lina M. Montén, entitled The Inconsistency Between Section 301 and TRIPS: Counterproductive With Respect to the Future of International Protection of Intellectual Property Rights? (9 Marq. Intellectual Property L. Rev. 387 (2005)). I supervised the comments, which started as a paper that Lina wrote for the International Business Transaction class that I taught during spring 2005. 

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Lemley Considers Whether Patent Office Can Be Fixed

This past Friday was a memorable day for Marquette Intellectual Property & Technolgy Program. Professor Mark A. Lemley, the William H. Neukom Professor of Law at Stanford Law School, the Director of the Stanford Program in Law, Science and Technology, and a founding partner of Durie Tangri LLP, delivered the Distinguished Annual Hon. Helen Wilson Nies Lecture in Intellectual Property, “Can the Patent Office Be Fixed?”

In the Conference Center of Marquette’s Eckstein Hall, which was filled with students, alumni, faculty, and local practitioners, Professor Lemley stressed that the United States Patent and Trademark Office (USPTO) faces primarily two problems in promoting innovation policy.  On the one hand, the USPTO must contend with a backlog of around 700,000 patent applications that have not yet even been examined, let alone granted or denied.  This may result in three- and five-year waits before the USPTO renders a decision on an application, which may prove detrimental for certain sectors in which technology develops at a more rapid pace, such as the software  industry.  On the other hand, the USPTO has granted a not insignificant number of patents of questionable validity and quality.

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New Issue of Marquette Intellectual Property Law Review Is Here

On behalf of the staff of the Marquette Intellectual Property Law Review, I am pleased to announce the arrival of the first issue of volume fourteen, available now in print and online.

This issue highlights the work of several scholars.  Dr. Dana Beldiman, a partner with the law firm of Carroll, Burdick & McDonough LLP in San Francisco, examines of the concept of originality within the context of the “knowledge based economy” in her article, “Utilitarian Information Works — Is Originality the Proper Lens?” 

Jay Dratler, Jr., Goodyear Professor of Intellectual Property at the University of Akron School of Law, offers an insightful revision of patent law in “Fixing Our Broken Patent System.” In this article, Professor Dratler incorporates never-before-codified principles of judge-made law into an improved statutory scheme that recognizes invention as a commercial and economic process, discourages patents on abstract research, and places the focus of patent law on practical economic and commercial criteria.

This issue also continues our Emerging Scholars Series with an article by César Ramirez-Montes, intellectual property lecturer at the University of Leeds, U.K. 

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