Quarterly Journal Volume 51, Issue 2
In This Section
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The AIPLA Quarterly Journal, a publication of the American Intellectual Property Law Association, is housed at the George Washington University Law School and is edited and managed by an Editorial Board of intellectual property experts and a staff of law students under the direction of the Editor-in-Chief, Professor Joan Schaffner.
The Quarterly Journal is dedicated to presenting materials relating to intellectual property matters and is published four times per year. Editorial Board members (all of whom are lawyers) are selected based upon demonstrated interest and experience, and student staff members are selected from the students of the GWU Law School.
QJ 51.2 - Compacting Prosecution and Petitions at the USTPO: Incredibly Useful and Incredibly Frustrating
Ryan Pool
COMPACTING PROSECUTION AND PETITIONS AT THE USPTO: INCREDIBLY USEFUL AND INCREDIBLY FRUSTRATING
Petitions for an incomplete Office Action can be an efficient and effective tool for applicants to compact prosecution before the USPTO by ensuring that Examiners uphold their duty to progress prosecution on every issue preventing allowance. However, the USPTO’s failure to timely process these petitions jeopardizes the system, lowers patent quality, and cost applicants money. This paper explains how the system works and how it doesn’t.
QJ 51.2 - Architects, Artists, Photographers, Property Owners, the Public and Their Rights: Reconciling VARA, the AWCPA, and Copyright Fundamentals
David Shipley
Congress expanded the rights of architects and visual artists in 1990 when it enacted the Architectural Works Copyright Protection Act (AWCPA) and the Visual Artists Rights Act (VARA). However, after more than three decades there are still several questions about the relationship between VARA, the AWCPA, and the rest of the Copyright Act. One question concerns a visual artist’s rights against unauthorized photographs or other pictorial representations of a building that incorporates the artist’s work, such as a mural or a sculptural work. Does the photograph infringe the artists’ rights in that work or is it exempted? Another question concerns a visual artist’s rights in a work incorporated in a building when the owner of the building wants to remodel or demolish the structure. If the work of visual art is of recognized stature, can the artist insist on removing the work or recover damages if the building owner destroys it during the demolition or remodeling? There is relatively recent litigation involving photographs of artists’ murals on buildings that were posted on websites, sketches or diagrams of architects’ plans that were posted on websites, and the deliberate whitewashing of acclaimed street art that had been sprayed on a dilapidated warehouse. These cases have required courts to interpret and apply VARA, the AWCPA and the Copyright Act to resolve several challenging questions. This article explains and reconciles the results in these cases, and recommends a way to interpret provisions in VARA and the AWCPA to accommodate the rights and interests of artists, architects, photographers, building owners and the general public.
QJ 51.2 - What is Really in the Best Interest of Baseball?: How Declining Public Trust in America’s Pastime Can Be the Catalyst for Federal Intellectual Property Legislation
Alyssa Karfinkel
During the 2017 and 2018 Major League Baseball seasons, the Houston Astros orchestrated a sign stealing operation that ultimately led to its World Series win. The punishments imposed by the Commissioner of Baseball were doled out arbitrarily, leaving fans, players, and the media dissatisfied and angry. This Note argues that the plenary power held by the Commissioner is harmful to the game of baseball, and proposes federal legislation to protect signs from improper misappropriation, drawing heavily on trade secret law.
QJ 51.2 - Have Your Cake and Eat It Too: Providing Free Public Access of Copyrighted Standards Incorporated by Reference into Law Through Compulsory Licensing
Zoie Mestayer
Incorporation by reference is a common practice in rulemaking where federal agencies make a rule that cites standards owned and developed by private organizations. These standards appear only in name and citation in the final regulation but nonetheless have legal effect as if they were fully included in the rule. Even though these standards constitute a binding piece of law, standards developing organizations (“SDOs”) retain copyright ownership of these standards,
allowing them to charge a fee in exchange for access to the full standard. Many SDOs have provided free read-only access to certain incorporated standards on their websites, but this practice is voluntary and often inconsistent. Regardless of the efforts of SDOs to make these standards accessible, the incorporating agencies should provide free online access to satisfy due process and the First Amendment. Free online access would also comport with fundamental
principles of equity, fairness, and efficiency. The proposed compulsory licensing regime would require agencies to provide this free online access while respecting the copyright interests of SDOs and incentivizing them to continue developing industry standards.
QJ 51.2 - The Need to Adopt Blockchain in the Intellectual Property Field and How to Do It
Grant Pincock
THE NEED TO ADOPT BLOCKCHAIN IN THE INTELLECTUAL PROPERTY FIELD AND HOW TO DO IT
Implementation of blockchain technology needs to occur within the field of intellectual property. To properly implement blockchain technology, parties must understand the purpose of the blockchain, determine whether to develop a new platform or leverage an existing platform, select a consensus protocol, initialize the platform, and establish a community of trust. This note discusses how to implement a blockchain system. It presents a detailed understanding of blockchain with a discussion of the nuances therein. This note concludes with how blockchain can solve current issues within the intellectual property field through the use of decentralized applications (dApps), smart contracts, and tokenization.
Upcoming Events
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March In Rights and Compulsory Licenses
July 30, 2024 12:30 PM to 2:00 PM | Up to 90 Mins CLE
Join us as our speakers discuss march-in rights and compulsory licenses. Recent events like governmental agencies turning to march-in as a potential means to lower drug pricing or the pandemic have refueled the discussion on compulsory licenses here and in Europe. Our speakers will review the history of the Bayh Dole act as well as compulsory licenses in Europe and provide an overview of recent developments in both jurisdictions. Finally, the speakers touch on the implications and concerns for patent holders and future innovation in the biopharma space here and in Europe. -
AIPLA 2024 Annual Meeting
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Join us as we bring IP professionals together to learn and connect. More information coming soon! The 2024 Annual meeting will take place at the Gaylord National Harbor Resort. Leadership Meetings on Wednesday, October 23. Programming scheduled October 24-26. -
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January 29 to 30, 2025
The Leadership Journey - From Survival (Subsistence) to Self-Fulfillment (Abundance). This invitation-only two-day program will address building strong leadership skills for all levels of experience. More details coming soon. -
2025 AIPLA Spring Meeting
May 13 to 15, 2025
Join us for this 2.5 day conference in Minneapolis, MN. Registration opens February 2025. More details coming soon!