United States Supreme Court Cites the Marquette Intellectual Property Law Review

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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.  Continue reading “United States Supreme Court Cites the Marquette Intellectual Property Law Review”

Lemley Considers Whether Patent Office Can Be Fixed

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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.

Continue reading “Lemley Considers Whether Patent Office Can Be Fixed”

New Issue of Marquette Intellectual Property Law Review Is Here

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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.  Continue reading “New Issue of Marquette Intellectual Property Law Review Is Here”

What Is So Special (to Me) About Intellectual Property?

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gone-with-the-wind-11Last week I announced a future post about “why I like IP” and what brought me to specialize in this area. First, as with many-and often the most successful-things in life, IP more or less happened to me. I graduated from the University of Bologna Law School with a thesis (very much like a master’s thesis) in Antitrust Law. During my time at Berkeley and while attending my Doctorate Program I still worked on Advertising and Antitrust Law, increasingly, however, focusing on the relationship between Antitrust and Intellectual Property. As I mentioned before, my mentor and guide of my whole career, professor Vito Mangini, played a vital role in “pushing” me further and further into the IP world. In fact, IP in general, and trademarks in particular, became my main focus of both writing and practicing when, following the suggestion of my professor (who also found scholarships to support my stay and study) I moved to London to attend the Queen Mary and Westfield College and the London School of Economics. Since then, my love for IP has just grown, and I have never thought of a better field of law in which to practice, teach, and write. Continue reading “What Is So Special (to Me) About Intellectual Property?”

Berlusconi in the United States

Posted on Categories International Law & Diplomacy2 Comments on Berlusconi in the United States

_45915796_obama_berlusconi_ap466I am an Italian citizen (and very proud of it), so I read the Italian news every day.  This is not really “legally relevant,” but  the BBC has a very funny article on the current Italian Prime Minister, Silvio Belusconi, visiting President Obama: “Oh no, Silvio! Will Italian PM avoid offending anyone on US visit?”  So far, Silvio Berlusconi has embarrassed the whole country multiple times with his gaffes (more or less intentional), such as the now-famous description of President Obama as “young, handsome, and sun tanned.”  Still, maybe Berlusconi will spare us this time.

To quote part of the article,

Beppe Severgnini, columnist for Corriere della Sera and author of La Bella Figura – A Field Guide to the Italian Mind, thinks the risk of a PR disaster in Washington is low. He points out that Mr. Berlusconi does not speak English, Mr. Obama does not speak Italian, and they will only meet for one hour to discuss preparations for the G8 summit, which Italy is hosting next month.

And, as Mr. Palandri, a professor at University College London,  puts it, “Even if he does badly he won’t be in an embarrassing position — because we could not be in a more embarrassing position than we are now.”  Continue reading “Berlusconi in the United States”

Why Intellectual Property is Often (Literally) the “Icing on the Cake”

Posted on Categories Intellectual Property Law, Legal Education1 Comment on Why Intellectual Property is Often (Literally) the “Icing on the Cake”

barbie-cakeI often tell my students that Intellectual Property is like the “icing on the cake”—the “cake” being the structure created by a product or service to which Intellectual Property law (IP) applies.  As I will elaborate in a future post, this is one of the reasons why I like IP so much.  In other words, while the technical application of IP is undoubtedly complicated and challenging, IP is often just the last step of a production or creation process.  It is like the icing on a cake — that final layer that ties everything together.  Yet this layer is absolutely necessary to complete the work and often represents the sine qua non of why the public will buy the cake.  It determines whether a product will be successful or not.  This post, however, is not about IP theory . . . it is really about cakes, icing, and IP.

Continue reading “Why Intellectual Property is Often (Literally) the “Icing on the Cake””

MULS 2009 Works-In-Progress Workshop (June Session)

Posted on Categories Corporate Law, Criminal Law & Process, Education & Law, Health Care, Human Rights, Intellectual Property Law, International Law & Diplomacy, Judges & Judicial Process, Legal Education, Legal Practice, Legal Scholarship, Wisconsin Law & Legal SystemLeave a comment» on MULS 2009 Works-In-Progress Workshop (June Session)

champTo open my month as faculty blogger, I would first like to thank my colleague Michael O’Hear, whose dedication to, and work for, the Marquette Faculty Blog since its creation last summer have been incredible.  This is very much one of the major reasons why this project has been so successful and brought so many wonderful contributions to so many aspects of the law so far.

Another fundamental area where the Marquette Law School faculty is also showing important contributions to the law is the production of scholarship that results in law review articles, book chapters, textbooks, etc.  We often present and discuss these works when they are still in progress in conferences around the country with our colleagues in our areas at other schools.  Still, to facilitate even further these very important discussions, the MULS Academic Programs Committee, led by Professor Chad Oldfather, has organized two sessions of an in-house Works-in-Progress Workshop for June and July.

The June session was a great success. A group of eight of us met this past Wednesday and presented our works-in-progress, from very rough to more completed drafts of scholarship, to our colleagues participating in the program.  Continue reading “MULS 2009 Works-In-Progress Workshop (June Session)”

New Issue of Marquette Intellectual Property Law Review Is Here

Posted on Categories Intellectual Property Law, Legal Scholarship, Marquette Law SchoolLeave a comment» on New Issue of Marquette Intellectual Property Law Review Is Here

Thanks to the outstanding work of its editors and staff members, the Winter 2009 issue of the Marquette Intellectual Property Law Review has just been released to the public! The issue opens with an article from Professor Jerome H. Reichman, the Bunyan S. Womble Professor of Law at Duke Law School, on “Rethinking the Role of Clinical Trial Data in International Intellectual Property: The Case for a Public Goods Approach.”  An early version of this article was presented by Professor Reichman as the 11th Honorable Helen Wilson Nies Momorial lecture at Marquette Law School in March of 2008.  The publication also features two additional articles, one from St. Mary’s University School of Law Professor Robert H. Hu on “International Legal Protection of Trademarks in China,” and one from  Dr. Thomas M. Mackey on “Nanobiotechnology, Synthetic Biology, and RNAI: Patent Portfolios for Maximal Near-Term Commercialization and Commons for Maximal Long-Term Medical Gain.”  Last, but not least, two excellent comments from our own students conclude the issue: Tiffany N. Beaty on “Navigating the Safe Harbor Rule: The Need for a DMCA Compass,” and Jeremiah A. Bryaron on “What Goes Around, Comes Around: How Indian Tribes Can Profit in the Aftermath of Seminole Tribe and Florida Prepaid.”

To all students and authors who put so much work into making this endeavor a success, congratulations again on an excellent Issue of the Marquette Intellectual Property Law Review! And to all others . . . enjoy the readings; they are truly interesting and greatly contribute to the academic and professional dialogue well beyond the intellectual property community!

Professor Schneider Receives the Women in the Law 2009 Award by the Wisconsin Law Journal

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A few weeks ago, the Wisconsin Law Journal awarded my colleague Andrea Kupfer Schneider the prestigious Women in the Law Award for 2009.  Professor Schneider was one of 21 outstanding women who were selected this year by the Journal for their work with Wisconsin’s legal community.  In its tribute to Professor Schneider, the Journal traces her passion for the law back to her grandfather’s practice, and describes her love for Marquette Law School and our first-class Alternative Dispute Resolution Program.

As a woman in the law, I am thrilled with Professor Schneider’s award! Nobody more than Andrea Schneider deserves this recognition for her tireless work, service, and leadership at Marquette University Law School and in so many other institutional and noninstitutional organizations.   Since I have known Andrea Schneider, she has been a primary source of inspiration and example, and I know she is a guide and example for all of our students and colleagues.  I admire Professor Schneider as a teacher, a great scholar, and one of the most outstanding leaders in committees and programs I have ever met in my career. As a mother, I also tremendously admire Andrea Schneider’s ability to balance work and family, multitask, and get everything done, always impeccably.

Congratulations again, Professor Schneider, and thanks so much for the wonderful role model you are for all of us women in the law!

The New Wisconsin Logo “Live Like You Mean It” and Its Early Criticism: Much Ado About Nothing?

Posted on Categories Intellectual Property Law, Wisconsin Law & Legal System3 Comments on The New Wisconsin Logo “Live Like You Mean It” and Its Early Criticism: Much Ado About Nothing?

Newspapers, web sites, and blogs are all talking these days about the newly launched Wisconsin slogan (“Live Like You Mean It”) that will replace the slogan “Life’s So Good” in promoting Wisconsin as a tourism and business destination. In the words of Governor Doyle, “This is another tool we’ll use to keep loyal visitors coming back, communicate why a business should relocate or expand here, and let talented employees know why they should choose Wisconsin.” Even if it is certainly “catchy,” the new slogan has already attracted a fair amount of criticism, primarily because it is not so “new” as we may think.

Instead, as Ryan Foley from Associated Press reports, “motivational speakers, authors and even wine and spirit maker Bacardi have already used the phrase in marketing campaigns,” and an Internet search can easily shows several other uses of the same slogan with respect to different already existing products or services. As a result, the State could face a lawsuit for trademark infringement, should its use of the “new” logo provoke confusion among consumers with any of the preexisting products or services that already carry the same slogan to identify them. Continue reading “The New Wisconsin Logo “Live Like You Mean It” and Its Early Criticism: Much Ado About Nothing?”

What’s New in the Classroom: Lawyerly Presentations in IIP

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I spent the past few months pondering how to improve and experiment with the use of student presentations as part of my teaching in small and medium-sized classes.  Since I started teaching, I have been using presentations in most upper-level classes, not just seminars.  I have always believed that law schools should train students as public speakers, but, apart from extracurricular activities, such as moot court, not much of this training is really done. Yet, future lawyers will have to stand and present in many ways, not just to judges, but often to clients, other lawyers, fellow classmates, and CLE attendees.  And students usually like presentations very much (maybe they are happy to get a break from the professor!), so I always found it natural to build upon and use this interest as a useful tool in my role of legal educator. Continue reading “What’s New in the Classroom: Lawyerly Presentations in IIP”

Obama Merchandising

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My very good friend and former colleague Eric Goldman has recently posted a link to trademark filings and merchandising related to President-Elect Barak Obama. As you will see, the various logos (as the one in the picture) are certainly cute and/or funny, as often it happens in trademark cases. Yet, these trademarks can open several questions as to the legitimacy of using the President-Elect’s name and image without his (explicit or implicit) consent.  What are the limits of these uses?  Should these uses be allowed?  Are they in any way offensive?  Can a third party prevent others from using the President-Elect’s name and image on competing goods or services?  Where is the line here between free speech and commercial use?  These issues (much simplified here), and similar ones based on many similar cases, will be, in part, the subject matter of my Trademark Seminar next semester. It will be, as is always the case with this course, a lot of fun!