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. 

Continue ReadingNew Issue of Marquette Intellectual Property Law Review Is Here

Supreme Court Takes Jurisdiction Over “Jurisdiction”

copyrightA bit overshadowed by all the hubbub over the oral argument in McDonald v. City of Chicago, the Supreme Court yesterday handed down an important copyright opinion in Reed Elsevier v. Muchnick. (But see Howard Wasserman, Marcia Coyle.) The court held that Section 411(a) of the Copyright Act, which requires registration of a copyright as a prerequisite to an infringement suit, is not “jurisdictional”—that is, failure to file a registration does not deprive a court of all power to hear a claim.

This might not initially sound significant; after all, a plaintiff who files an infringement claim on an unregistered copyright is still going to have the case dismissed, whether Section 411(a) is deemed a mere prerequisite to filing or jurisdictional. But the distinction matters in three types of cases: class actions where unnamed members of the class would include owners of unregistered works (the Muchnick situation); plaintiffs who seek an injunction against further infringement encompassing all of their works, registered and unregistered; and would-be defendants who file for a declaratory judgement against a copyright owner who hasn’t registered yet. All three of those seem like worthy candidates for a court’s consideration as a policy matter, but all three were impeded by a slew of lower court opinions holding that a failure to register deprived the court of all power to even hear such disputes. (Congratulations for the win are due to lawyers from my old firm: Chuck Sims, who argued the case before the Supreme Court, and Jon Baumgarten.)

A bit of background before I continue:

Continue ReadingSupreme Court Takes Jurisdiction Over “Jurisdiction”

New Student Scholarship Discusses Conditional Resignations by Federal Judges and Patentability of Genes

Allison Luczak has published a new student comment in the Law Review on conditional resignations by federal judges. According to Luczak, conditional resignations – resignations of judges that are expressly conditioned upon certain terms or events such as the appointment of a successor by the President then in office – reflect the increased politicization of the appointments process. Although the power to submit a conditional resignation can be viewed as an aspect of life tenure, which in turn preserves judicial independence, Luczak points out that it may also subvert separation of powers because certain conditions may encroach upon the Executive and Legislative Branches’ powers of nomination and confirmation. Her comment discusses both the possibility of unconstitutional conditions and potential regulatory mechanisms to curb abuses.

The new issue of the Law Review also features a note by Ying Pan on the patentability of genes. Pan argues that although tens of thousands of gene patents have been granted over the past two decades, the Supreme Court’s 2007 decision in KSR Int’l Co. v. Teleflex, Inc. should have the effect of limiting the future patentability of genes based on the requirement of nonobviousness. The note concludes with a set of proposed criteria that would bring the USPTO’s examination guidelines for gene patents into compliance with KSR.

Both of these pieces can be accessed at the Law Review’s website.

Continue ReadingNew Student Scholarship Discusses Conditional Resignations by Federal Judges and Patentability of Genes
Newer Posts
Older Posts