Vol. 4 No. 1 September/October. 2011:
GREEN

"Green" Is a Way of Thinking, Not an Industry
By Ryan M. Fountain

Green technology is not likely to be the next breakthrough industry. However, existing intellectual property incentives and consumer enthusiasm could foster some breakthroughs in the green industry. Some suggest that compulsory licensing or mandatory open sourcing of technology would result in more efficient and rapid utilization of green technology, but this may incentivize greater secrecy, promote economic uncertainty, and further limit venture capital investment in green industries. Preservation of established intellectual property protections that have successfully encouraged innovation for over 200 years, partnered with consumer education and marketing, is the most promising hope for the advancement of green technology.

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The following articles from Vol.4 No.1 September/October. 2011
are available to Section members.

Profiles in IP Law An Interview with Robert L. Stoll
By Annette R. Reimers

Robert L. Stoll is the Commissioner for Patents for the United States Patent and Trademark Office. In this interview, he discusses the USPTO’s green technology initiative—the Green Technology Pilot Program. Commissioner Stoll addresses the challenges faced by the USPTO in promoting the program and its effect on the patent community and consumers. read more...

Is Green Technology Stalled at the Starting Line?
By Henry Behnen and Maxim H. Waldbaum

Environmental awareness, resource constraints, and general public opinion are pushing American innovators to discover and develop efficient green technologies. Some innovators believe that to the current U.S. patent and legal system, offering a period of limited exclusivity in exchange for disclosing proprietary innovation through the patenting process provides sufficient incentive to develop groundbreaking solutions to society’s challenges. Others believe that the current system, with a potent threat of litigation of overbroad patents, the emerging threat of “patent trolls,” and other bars to innovation present daunting challenges to the independent creation of new green technologies. read more...

Is the Big Blue Marble Getting Greener?
By Janet S. Hendrickson

Intellectual property rights are a necessary incentive for investment in the development of green technologies. There are several treaties and regulatory regimes around the world that provide incentives for companies to develop cleaner technologies and, consequently, for innovators to file patent applications in various countries. These incentives have increased patenting activity in green technologies and are expected to continue encouraging development of these technologies in the future. read more...

Transformative Use Comes of Age in Right of Publicity Litigation
By David Leichtman, Yakub Hazzard, David Martinez, and Jordan S. Paul

The threshold to celebrity has lowered dramatically in recent years and celebrity status can now be minted instantaneously. Equally instantaneous is the ability of others to superimpose and manipulate a celebrity’s likeness. The rapidly changing technological landscape in the digital age presents complicated legal considerations for both celebrities and those who use their images and likenesses. Courts have recently imported a “transformative use” test from copyright law’s fair use doctrine to balance the “right of publicity” with countervailing First Amendment concerns. read more...

Likelihood of Eco-Friendly Confusion: Greenwashing and the FTC “Green Guides”
By Timothy C. Bradley

The recent explosive growth of environmentally friendly product offerings and associated environmental marketing claims has caused some to accuse marketers of greenwashing—inaccurately using environmental claims to market products or services. The FTC recently initiated a series of enforcement actions against a number of retailers and has proposed revisions to strengthen its “Green Guides.” read more...

Triumph of the Eco-Patent Commons
By Kevin Greenleaf and Michael P. Byrne

Businesses can benefit from the public awareness of green-this and eco-that by not only marketing the environmentally friendly aspects of their products, but by also participating in government and industry initiatives such as expedited patent examination, patent pools, or open-patent strategies, such as the Eco-Patent Commons. Participation in such programs can result in reduced costs, faster patent examination, easier technology licensing, joint ventures, and faster time-to-market. read more...

It’s Not Easy Being Green: Use of the Terms “Organic,” “Sustainable,” and “Natural” in Trademarks and Advertising
By Jennifer M. Hetu and Anessa Owen Kramer

Despite the steady increase in the use of “green” terms in trademarks and advertising, not all products are as “green” as they appear. Many companies engage in the practice of making misleading environmental claims about their products in an effort to be perceived as environmentally friendly. The FTC addresses this practice of greenwashing but does not address use of the terms “organic,” “natural,” and “sustainable.” read more...

Managing the Presumption of Patent Validity: Microsoft v. i4i
By George W. Jordan III

Clear and convincing evidence remains the burden of proof for overcoming the presumption of validity in litigation; however, the Supreme Court’s decision in Microsoft v. i4i reillustrates the susceptibility of the presumption to being mischaracterized and misapplied. The decision’s significance and practical implications for newly-presented evidence of invalidity are explored. read more...

Recent Developments in IP Law
By John C. Gatz

Perspective
By Robert A. Armitage

From the Hill
by Hayden W. Gregory

I2P Group News
By Samson Helfgott

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