Issue 1 – Winter 2005
The Patent Research Tool Problem After Merck v. Integra
Citation: 14 Tex. Intell. Prop. L.J. 1 (2005)
Author: Marlan D. Walker
About: Associate at Greenberg Traurig, LLP, in Orange County, California; LL.M., Intellectual Property Law, The George Washington University Law School; J.D., Arizona State University; M.S. in Molecular Biology, Brigham Young University; B.S., Brigham Young University. The author would like to thank the Honorable Gerald J. Mossinghoff for his suggestions relating to the subject matter of this paper.
Abstract: This paper will explore the issues related to research tools, including the difficult issues posed by research tools and how they fit into the statutory scheme of the Hatch-Waxman Act and § 271(e)(1), in light of the Supreme Court’s decision in Integra and relevant Federal Circuit decisions. Part One introduces research tools and their more general problems. Part Two discusses the legislative history and case law surrounding the safe harbor. Also included is an analysis of the research tool problem within the context of the principles, language, and case law. Finally, Part Three discusses possible solutions for the problems inherent in research tools.
A Sum Greater Than Its Parts?: Copyright Protection for Application Program Interfaces
Citation: 14 Tex. Intell. Prop. L.J. 59 (2005)
Author: Efthimios Parasidis
About: Member of the Bar of New York and the Bar of New Jersey; J.D., University of Pennsylvania Law School (2000); M.BE., University of Pennsylvania Center for Bioethics (2000); B.A. in Philosophy, The College of New Jersey (1997).
Abstract: The exponential growth exhibited in the technology sector worldwide has provided businesses and consumers with a myriad of computer programs and computer-based devices that have significantly altered and improved our everyday lives. Whereas the copyright laws of the United States have attempted to keep pace with these rapid technological advances, in certain instances, such has not been the case. One such area involves the extent of copyright protection for application program interfaces (“APIs”). Whereas APIs have been implicated as important segments of major international lawsuits involving large, multi-national corporations such as Microsoft, few scholars have addressed whether, and to what extent, APIs are protected under the copyright laws.
In this essay, I will discuss whether APIs are protected under the copyright laws of the United States and, for those instances where APIs are protected, the level of protection afforded. Additionally, I will consider the defense of fair use as it relates to copyright infringement claims regarding APIs.
Issue 2 – Spring 2006
Confusion in the Digital Age: Why the De Minimis Use Test Should be Applied to Digital Samples of Copyrighted Sound Recordings
Citation: 14 Tex. Intell. Prop. L.J. 93 (2006)
Author: Mike Suppappola
About: Mr. Suppappola received his B.A., summa cum laude, in journalism from the University of Massachusetts in 2002, and his J.D., with honors, from the University of Connecticut School Law in 2005.
Abstract: This paper attempts to explore the legality of digital sampling and the viability of de minimis use analysis in the digital sampling context. Part II discusses the Copyright Act of 1976 and how courts have traditionally analyzed a claim of copyright infringement. Part III outlines the history of digital sampling and traces the evolution of digital sampling case law leading up to the Ninth Circuit’s decision in Newton v. Diamond. Part IV discusses and critiques the Newton decision and its future relevance for digital samplers. Part V analyzes the Sixth Circuit’s decision in Bridgeport Music v. Dimension Films and suggests that the Bridgeport Music court erred in both its interpretation of the Copyright Act and its implementation of a bright-line rule that prohibits any unauthorized sampling of a sound recording. Part VI presents possible solutions to the digital sampling problem and argues for a presumption against de minimis use where a sampler fails to obtain a sound recording license.
Traditional Knowledge and Intellectual Property in Brazilian Biodiversity La
Citation: 14 Tex. Intell. Prop. L.J. 131 (2006)
Author: John Tustin
About: J.D. candidate, The University of Texas School of Law. I conducted much of the research for this paper as a Latin American Democracy Fellow in the Office of the Legal Advisor in the Ministry of Environment in Brasilia, Brazil during the summer of 2004. I would like to thank Professors Antonio Benjamin and Sarah Cleveland of the University of Texas and Daniela Guimarães Goulart and Gustavo Trindade at the Ministry of Environment for their support during the fellowship. I would also like to thank Sidley Austin LLP for sponsoring the Best Note Competition at the Texas Intellectual Property Law Journal.
Abstract: This Article explores the problems encountered in Brazil when modern intellectual property systems unlock the commercial value of traditional knowledge associated with biological resources. The Article begins with a historical perspective of bioprospecting and biopiracy and then considers laws governing intellectual property and biodiversity. A discussion of the challenges traditional knowledge poses to the existing intellectual property systems follows. Barring the creation of a sui generis system to address traditional knowledge and intellectual property rights, relatively simple practices could be enacted to ensure better protection of traditional knowledge associated with genetic resources.