JIPEL Vol. 7, No. 2 – Spring 2017 The NYU Journal of Intellectual Property and Entertainment Law is proud to present Volume 7 Issue 2 of […]
A Judicial ‘Supplement’ to Advertising Law: The Fourth Circuit’s GNC Decision and Policy Implications for the Dietary Supplement Industry By Gia Wakil* Download a PDF version of this article here Introduction I. The Legal Landscape of the Supplement Industry A. Sources of Truth-in-Advertising Law B. The FTC-FDA Regulatory Regime 1.FTC Regulation of Supplement Advertising 2. FDA Regulation of Supplement Labeling C. The Lanham Act 1.Two Modes of False Advertising i. Literal Falsity ii. Literal Falsity by Necessary Implication 2. Misleading Advertising D. State Consumer Protection Statutes II. The GNC Case and the Glucosamine-Chondroitin Problem A. Factual Background B. The Complaint C. Decision Granting Motion to Dismiss D. Plaintiffs’ Appeal III. Legal and Policy Considerations A. Law Professors’ Amicus Brief, with Rebuttal 1.Inaccurate Legal Standards 2.Misstatement of Precedent 3.The Nature of Scientific Evidence 4.Jury Instructions B. Additional Merits of the Fourth Circuit’s Decision 1.FTC, FDA, and Fourth Circuit Parity 2.Fair Competition and Consumer Choice 3.Res Judicata Effects Conclusion Continue reading →
Think Big! The Need for Patent Rights in the Era of Big Data and Machine Learning By: Hyunjong Ryan Jin* Download a PDF version of this article here Introduction I. Need for Intellectual Property Rights in Machine Learning A. Do We Need Intellectual Property Rights for Machine Learning? B. The Basics of Patent Law C. The Thin Protection on Software Under Copyright Law D. Comparing Trade Secret and Non-disclosures with Patents II. Placing Machine Learning within Intellectual Property Law A. Machine Learning Basics B. Industry Trends in Machine Learning C. Machine Learning Innovators – Protect the Data or Inventions? 1. Protecting the Training Data – Secrecy Works Best 2. Protecting the Inventions – Patent Rights Prevails 3. Protecting the Machine Learning Models and Results – Secrecy Again D. Need of Patent Rights for Machine Learning Inventions in the Era of Big Data III. Patentability of Machine Learning Innovations in the Era of Big Data A. Alice: The Legal Framework of Patentable Subject Matter in Software B. The post-Alice cases from the Federal Circuit 1. The Federal Circuit’s Standard for Alice Step One 2. The Federal Circuit’s Standard for Alice Step Two, and the Overlap with Step One C. Applying Patentable Subject Matter to Machine Learning Inventions Conclusion Continue reading →
The ‘Enhanced No Economic Sense’ Test: Experimenting with Predatory Innovation By Dr. Thibault Schrepel* Download a PDF version of this article here Introduction I. The Improved Version of the “No Economic Sense” Test A. How to Determine Which Test to Apply 1. Regarding the Goals of Antitrust Law 2. In Terms of its Efficiency B. On Why the “No Economic Sense” Test is Suitable 1. Its Main Characteristics 2. Inoperative Criticisms C. How to Improve the “No Economic Sense” Test D. Modeling of the Proposed Test II. Application to Major Predatory Innovation Cases A. Berkey Photo v. Eastman Kodak (1979) B. Microsoft (2001) C. Microsoft (2004) D. iPod iTunes (2014) Conclusion Continue reading →
The Hybrid Trademark and Free Speech Right Forged From Matal v. Tam By Timothy T. Hsieh* Download a PDF version of this article here Introduction I. The Matal v. Tam U.S. Supreme Court Case A. The Rejection by the USPTO and the TTAB Appeal B. The Federal Circuit In re Tam Case C. The Supreme Court’s Majority Opinion in Matal v. Tam 1. Government Speech/Subsidy/Program Analysis i. Trademarks are Not Government Speech ii. Trademarks are Not Government Subsidies iii. Trademarks are Not Government Programs 2. Commercial Speech Analysis D. Justice Kennedy’s Concurring Opinion II. Predictions on the Aftermath of Matal v. Tam A. Low Probability of Highly Offensive Mark Filings B. The Washington Redskins Mark C. Free Speech Interests Outweigh Offensive Mark Filings III. Comparisons to Patent Law & Copyright Law Conclusion Continue reading →
