Restructuring the Federal Circuit

Restructuring the Federal Circuit

The de facto steward of U.S. patent law is the United States Court of Appeals for the Federal Circuit, which is the exclusive appellate venue for patent cases. As the perceived importance of the patent system has steadily increased since the court’s formation in 1982, the Federal Circuit’s performance has been closely followed by an ever-expanding group of practitioners, academics, and other interested observers, who have not been shy about pointing out the court’s deficiencies. Common complaints about the Federal Circuit’s case law and the quality of its decision-making include: panel-dependency, formalism, indeterminacy, and the over- or under-enforcement of certain doctrines. The academic literature offers a variety of proposals for remedying or compensating for the Federal Circuit’s perceived shortcomings, such as having specialized patent trial judges, expanding the number of circuit courts that hear patent appeals, and modifying the Federal Circuit’s jurisdiction.

Compared to existing proposals, this Article takes a different approach to analyzing the Federal Circuit’s problems by focusing primarily on the judges themselves and their adjudicatory environment. Lessons from cognitive psychology, management science, and the literature on judicial behavior suggest that many of the complaints about the court are potentially grounded in, or at least aggravated by, the expertise developed by the judges and the internal dynamics of the court, which may adversely affect the Federal Circuit’s ability to reconsider its precedents in a timely manner. This Article explores how the Federal Circuit, in its current form, may have difficulty self-correcting, and proposes that a solution may lie in staffing the Federal Circuit with only district judges who serve staggered terms of limited duration.

3-D Printing Your Way down the Garden Path: 3-D Printers, the Copyrightization of Patents, and a Method for Manufacturers to Avoid the Entertainment Industry’s Fate

3-D Printing Your Way down the Garden Path: 3-D Printers, the Copyrightization of Patents, and a Method for Manufacturers to Avoid the Entertainment Industry’s Fate

What happens when a home user can scan and print a physical item, or download plans to print a physical item from the Internet, as easily as he or she can rip and share a song or movie? With home 3-D printers on the horizon, the question will begin to ring louder. Manufacturers of tangible goods should heed lessons learned about infringement of music, movies and books when these 3-D printers arrive in homes across the country. A key lesson learned from peer-to-peer file sharing of digital content is that once a technological monopoly (being the only one who can efficiently produce an item) on a protected item falls, the legal monopoly of intellectual property law is insufficient to protect property rights. Once efficient and inexpensive 3-D printers arrive, businesses can (1) shift to a market or bifurcated model in pricing goods, (2) seek to persuade people not to misuse intellectual property for moral reasons, (3) seek to use the judicial and legislative systems to (temporarily) slow sharing of protected designs, or (4) fade away. This article argues that the third solution (using the courts and legislatures to protect the legal monopoly once the technological monopoly is lost) sets a price on violations while removing any moral disincentive, and that only a combination of the first two methods—moral persuasion and market model pricing—will in fact protect tangible goods manufacturers from catastrophic losses.

Bridging the Gap: Improving Intellectual Property Protection for the Look and Feel of Websites

Bridging the Gap: Improving Intellectual Property Protection for the Look and Feel of Websites

Every company strives for a unique and memorable website. There is a growing threat, however, that this valuable investment in website design will be copied by competitors without effective legal remedy and with potentially devastating consequences. The “look and feel” of a website – the immediate impression that makes a website recognizable, easy to use, and deserving of consumer trust – is not adequately protected by copyright, trademark, or any other intellectual property doctrine. Website look and feel protection falls into a chasm between copyright on one hand and trade dress on the other, neither of which adequately addresses this modern problem. While copyright protects fixed texts, it cannot offer the scope and fluidity of protection needed to capture the look and feel of entire websites. Trade dress falls short because existing law does not adequately address the blend of form and function essential to website protection. This article proposes the adoption of a multi-factor test adapted from trade dress law in order to secure more effective protection for websites and clarify that trade dress is the proper doctrinal home of “look and feel” protection.

License and Registration, Please: Using Copyright “Conditions” to Protect Free/Open Source Software

License and Registration, Please: Using Copyright “Conditions” to Protect Free/Open Source Software

FOSS (free/open source software) is a growing player in the end-user market,
as evidenced by the popularity of everything from Wordpress to Firefox. One of its key appeals to developers is the egalitarian nature of its “access for everyone” model, which allows everyday users to develop and share tweaks that make the program more useful to them. In executing these goals, however, developers can often get lost in the world of legalese surrounding available FOSS licenses. Often, developers choose a license without a full understanding of its contents, or even attempt to draft their own. One of the biggest risks in the wording of a license is that of the “condition”/“covenant” dichotomy. Incorrectly worded, a covenant-based license runs the risk of foreclosing copyright-based remedies and limiting the scope of arguments available when a user breaches a program’s license. In approaching the choice of which license to apply to a new program, then, both developers and their attorneys should be aware of the critical importance of its choice of words.

Where the Trade Secret Sits: How the Economic Espionage Act Is Inflaming Tensions in the Employment Relationship, and How Smart Employers and Employees Are Responding

Where the Trade Secret Sits: How the Economic Espionage Act Is Inflaming Tensions in the Employment Relationship, and How Smart Employers and Employees Are Responding

The dawning of the information age, coupled with a greater understanding of the value of intellectual property, has increased the quantity of proprietary information businesses choose to keep as trade secrets. An often-underappreciated cost of trade secrets is the effect they have on the employment relationship – they frequently result in employers and employees involving themselves in convoluted legal and contractual relationships beyond their own expectations or comprehension. Further complicating the matter is the Economic Espionage Act (“EEA”), which increases the stakes of employer-employee conflict by criminalizing the misappropriation of trade secrets. This note provides a primer to help both employers and employees deal with the specific issues trade secrets frequently create in the employment relationship, first by outlining the current status of trade secrecy law, then by examining how the EEA is changing the trade secrecy landscape, and finally by providing a practical summary of best practices.

Using Copyright to Combat Revenge Porn

Using Copyright to Combat Revenge Porn

The dawning of the information age, coupled with a greater understanding of the value of intellectual property, has increased the quantity of proprietary information businesses choose to keep as trade secrets. An often-underappreciated cost of trade secrets is the effect they have on the employment relationship – they frequently result in employers and employees involving themselves in convoluted legal and contractual relationships beyond their own expectations or comprehension. Further complicating the matter is the Economic Espionage Act (“EEA”), which increases the stakes of employer-employee conflict by criminalizing the misappropriation of trade secrets. This note provides a primer to help both employers and employees deal with the specific issues trade secrets frequently create in the employment relationship, first by outlining the current status of trade secrecy law, then by examining how the EEA is changing the trade secrecy landscape, and finally by providing a practical summary of best practices.

The Distinctiveness of a Fashion Monopoly

The Distinctiveness of a Fashion Monopoly

By focusing on the recent fashion warfare over the red sole used on luxury shoes, this Article reconsiders the implications of trademark protection of single color marks for regulating the development of the fashion industry and the cultural evolution of human society. Courts and commentators have focused on the role of the aesthetic functionality doctrine in deciding whether Christian Louboutin’s red sole mark should be protected by trademark law. This Article takes a different approach. It calls for a social justice–based re-examination of whether the red sole mark is distinctive enough to warrant trademark protection.

Based on a close look at the distinctiveness of the red sole mark, the Article puts forward a social justice mandate that should be incorporated into trademark law. It contends that social justice should have the trumping power to deny trademark protection of marks even if they are adequately distinctive. It also shows how the new mandate resonates with the equality-oriented protection under the First and Fourteenth Amendments. The Article further addresses practical concerns for implementing the mandate and discusses its merit in solving the problems caused by the aesthetic functionality doctrine.

Signing in Glitter or Blood?: Unconscionability and Reality Television Contracts

Signing in Glitter or Blood?: Unconscionability and Reality Television Contracts

Reality television is a modern phenomenon that can be found on both daytime and primetime television. Using “real” people creates unique problems for production teams. Real people do not have the industry knowledge or legal assistance from industry professionals to actively participate in contract negotiations. As “unscripted” shows, reality television presents new risks the producers must consider while developing contracts. While most entertainment contracts are longer and more restrictive than employment contracts for other industries, reality television contracts are even more complex. Recently, questions about the enforceability of these contracts have begun to emerge. If litigated, the courts, rather than a jury, would decide whether these contracts were void due to unconscionability. This note argues that as currently drafted, reality television contracts are not unconscionable, even though at first read they might seem unfair.

The Merger and the Damage Done: How the DOJ Enabled an Empire in the Live Music Industry

The Merger and the Damage Done: How the DOJ Enabled an Empire in the Live Music Industry

In 2010, the Antitrust Division of the Department of Justice approved the merger of Ticketmaster and Live Nation, who combined to form Live Nation Entertainment. This paper revisits the Department’s antitrust analysis from its merger investigation in light of recent trends in the live music industry. It explores alternative theories of antitrust scrutiny that the Department either did not emphasize or omitted discussion of. Finally, it concludes that the merger posed a more significant threat to competition than the Department acknowledged, and that the remedies the Department imposed as conditions on the merger were insufficient to preserve effective competition in the relevant markets. The Department missed a tremendous opportunity to establish long-term competition in the nascent market for vertically integrated services. Artists, competing service providers, and ultimately consumers are worse off for it.