Author: Hannah Vittorio

The Constitution Commandeth: Thou Shalt Not Protect the Same Subject Matter Under Design Patent and Trade Dress Laws

By: Kenneth B. Germain and Louis H. Sitler

from Volume 12 (2022-2023)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository. 

Abstract

For many years and still currently, it has been assumed—and even expressly asserted—that it is perfectly permissible to “stack” various legal theories (concurrently or consecutively) to protect nonfunctional “designs” for products. This is despite infrequent but cogent arguments that the available theories, notably design patents and product design trade dress—both of which are based upon federal statutes—are not Constitutionally compatible due to at least the concept of Superfluity. The authors of this article carefully examine the origin, nature, and meaning of these two types of IP protections in the context of their two Constitutional bases—the Patent/Copyright Clause and the Commerce Clause—and conclude that, indeed, “stacked” protections are not Constitutionally permissible; the authors then recommend a workable solution which they dub, the “Kewanee Kompromise.”

Marshalling Copyright Knowledge to Understand Four Decades of Berne

By: Peter K. Yu

from Volume 12 (2022-2023)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract

In the year 1978, the 1976 Copyright Act had just entered into effect. Marshall Leaffer, whom this article will affectionately refer to by his first name, had just completed his duties as an attorney advisor at the U.S. Copyright Office. On his way to academia, he, like the fictional character Captain William “Buck” Rogers, was to experience cosmic forces beyond all comprehension. In a freak mishap, his car veered off a rarely used mountain road and was frozen by temperatures beyond imagination. He did not return to academia until more than forty years later. What will he discover upon his return? Will he find the developments in the intervening decades interesting or surprising? What observations would he make had he not been frozen in 1978?

Life After Google v. Oracle: Three Reflections on a Theme

By: Daryl Lim

from Volume 12 (2022-2023)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract

In 2004, Professor Leaffer published an article titled Life after Eldred: The Supreme Court and the Future of Copyright. He wrote about three cases decided in or after 2001 to provide a snapshot of the Supreme Court’s position on copyright issues. This Article discusses three reflections on this theme. The first reflection flows directly from Google. It discusses fair use in Andy Warhol Found. for Visual Arts, Inc. v. Goldsmith, as well as text and data mining for artificial intelligence uses. This Article then reflects on Arnstein v. Porter’s lessons for modern copyright infringement law. Finally, it reflects on the current state of software protection at the intersection of patent and copyright law in light of Alice Corp. Pty. v. CLS Bank Int’l.

Reconciling Copyright “Restoration” for Pre-1972 Foreign Sound Recordings with the Classics Protection and Access Act

By: Tyler T. Ochoa

from Volume 12 (2022-2023)

Download this Article in PDF format from The Jerome Hall Law Library’s Digital Repository.

Abstract

When Congress first added sound recordings to the Copyright Act, it acted prospectively only: sound recordings fixed on or after February 15, 1972, received federal statutory copyright protection, while sound recordings fixed before February 15, 1972, were left to the vagaries of state law. This historic inequity was corrected in 2018 with enactment of the Classics Protection and Access Act (CPA), which provides sui generis protection to pre-1972 sound recordings that is similar, but not identical, to federal copyright protection. But there is a subset of pre-1972 sound recordings that already had federal copyright protection before the CPA was enacted: namely, sound recordings of foreign origin that were granted copyright under the umbrella of copyright “restoration” in the Uruguay Round Amendments Act of 1994. This raises an obvious question that Congress did not expressly address: is the new sui generis protection provided by the CPA a substitute for the existing copyright protection that such foreign sound recordings already enjoyed, or is it supplemental to the existing copyright protection that such foreign sound recordings already enjoyed, or does it simply not apply to such foreign sound recordings at all? This article examines the three alternatives and concludes that Congressional clarification is needed. Absent such clarification, it is possible that foreign sound recordings are simply not covered by the CPA at all, rendering its protections for digital music providers ineffective and depriving foreign sound recordings of the term extension provided by the CPA.

Fire of Genius, Season Five

Season Five, Episode One: Welcome Back

Season Five, Episode Two: Law of Fashion 3

Season Five, Episode Three: McRussia: The Weaponization of Intellectual Property

Season Five, Episode Four: Moderna v. Pfizer

Season Five, Episode Five: BIPOC Disadvantages and Potential Remedies

Season Five, Episode Six: IP-Property or Private Right

Season Five, Episode Seven: Warhol v. Goldsmith Supreme Court Issue Update

Season Five, Episode Eight: Spooky IP Issues – Fraud and Beyond the Grave Filing

Season Five, Episode Nine: Patents and Stock Shorting: The Ballad of Kyle Bass

Season Five, Episode Ten: Eyal Barash on Pharmaceutical Patent Strategies in Drug Repositioning

Season Five, Episode Eleven: Social Media and Copyright

Season Five, Episode Twelve: Tattoo Copyrights in Commerical Material

Season Five, Episode Thirteen: Interview with Ken Germain and Lou Sitler

Season Five, Episode Fourteen: Right of Repair and Patents

Season Five, Episode Fifteen: AI as Inventors

Season Five, Episode Sixteen: Interview with Jordana Goodman

Season Five, Episode Seventeen: Parody Dog Toys

Season Five, Episode Eighteen: What Will Happen to the Yeezy Trademark

Season Five, Episode Nineteen: Innocent Copies

Season Five, Episode Twenty: American Axle v. Neapco and Patent Eligibility

Volume 12

MASTHEAD

Editor-in-Chief

Lillian Huff

Editorial Team

Publishing Editor: Hannah Vittorio Trimpe
Managing Editors: Scott Nolan & Alex Mischke
Audio Editor: Megan Wheeler
Content Editors: Allissa Aardema & Marcus Hoekstra
Note Editors: David Lebby & Philip Ouweleen
Business Manager: Luke Steffe

Articles Editors: Jacob Boesch, Graham Christian, Stephanie Kaplan, Robert Kesling, Karen Kukla, Caroline McCord, Margaret Melchi, Shunyo Morgan, Taylor Nunley, Amy Qi, Maya Salinas, Nicole Scelta, Sydney Schnur, Ahsan Sohail, Qixuan (Vanessa) Wang

Faculty Advisor and Primary Contact: Professor Michael Mattioli
Faculty Advisor: Professor Mark Janis

CONTENT

Volume 12, Issue 1:

“An Introduction to ‘Marshall Law'” by IP Theory Volume 12 Editorial Board

“Reconciling Copyright “Restoration” for Pre-1972 Foreign Sound Recordings with the Classics Protection and Access Act” by Tyler Trent Ochoa

Life After Google v. Oracle: Three Reflections on a Theme by Daryl Lim

Marshalling Copyright Knowledge to Understand Four Decades of Berne by Peter K. Yu.

Volume 12, Issue 2:

The Constitution Commandeth: Thou Shalt Not Protect the Same Subject Matter Under Design Patent and Trade Dress Laws by Kenneth B. Germain and Louis H. Sitler

A Hot Spit-Take: Why the Supreme Court Will Hold That There Is No Privacy Interest in Commercial DNA Data by Mounir Jamal

Indian Pharmaceutical Patenting Under Section 3(D): A Model for Developing Countries by Nicholas Eitsert

Fire of Genius, Season Five

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