Vol. 3 No. 4 March/April. 2011:
Changing of the Guard

LandslideChanging of the Guard:
An Interview with Chief Judge Randall R. Rader

By S. Lloyd Smith

Hon. Randall R. Rader assumed his new position as chief judge of the Federal Circuit last June, and the Landslide Editorial Board is pleased to present this interview. Chief Judge Rader discusses, among other issues, the court’s role in the international marketplace, cooperation among international judiciaries, and reducing the cost of e-discovery.

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The following articles from Vol.3 No.4 March/April. 2011
are available to Section members.

On Becoming an Even Stronger Patent Powerhouse: China’s National Patent Development Strategy, 2011–2020
By David J. Kappos

China increasingly holds the attention of USPTO Director David J. Kappos, who assumed his post in August 2009. This article provides his overview of China’s new “National Patent Development Strategy” issued this past November by the country’s State Intellectual Property Office. The strategy, he says, is ambitious and a testament to China’s intention to use the patent system to become an innovation leader. read more...

Uniloc v. Microsoft: The Federal Circuit’s Continued Efforts at Patent Damage Reform
By Jonathan A. Muenkel and Amar A. Mehta

Just four days into 2011, the Federal Circuit was continuing to pursue “judicial” patent damage reform. In Uniloc v. Microsoft, the court discarded the “25 Percent Rule of Thumb” for establishing a baseline royalty rate for damage calculations. The court also limited the application of the Entire Market Value Rule. The authors discuss the decision’s practical implications. read more...

The Broadening Chasm Between Claim Interpretation During Litigation and Examination for Product-by-Process Claims
By James G. McEwen and Ramya Possett

Abbott Laboratories v. Sandoz appears to have created a new dichotomy between claim interpretation for patentability and validity analyses. It may also have exacerbated the accepted dichotomy between patentability analysis during prosecution and claim interpretation during enforcement. Abbott Labs. Raises questions for evaluating true product-by-process claims for patentability both in court and during examination. read more...

Enabling Medical Treatment Inventions Under the Evolving Enablement Requirement
By Qing (Becky) Lin

Recent Federal Circuit cases have heightened the 35 U.S.C. § 112 enablement requirement related to utility for medical treatment inventions. When seeking patent protection, however, care must be taken to not publicly disclose the invention before enabling disclosure is available. When is such an invention enabled? How much must be disclosed? The author offers some guidelines. read more...

The ITC Solution to the Gray Market Problem in the Internet Age
By Mark L. Whitaker, Mark A. Klapow, and Thomas R. Burns Jr.

Consumer demands and trademark owners’ willingness to cater to them have resulted in a global gray market. The ITC may offer expertise, efficiency, cost-effectiveness, and relief for trademark owners. However, IP attorneys should not ignore the value of initiating concurrent district court litigation on issues brought to the ITC. Concurrent litigation may provide a trademark owner the best of both worlds and improve its leverage in both cases. read more...

Protection of Product Configurations as Trade Dress in Light of Stuart Spector Designs, Ltd.
By Lindsay D. Molnar

Though trademark protection for product configuration has existed for more than a century, attorneys seldom suggest it to their clients. Notwithstanding the copyright-trademark-patent “trifecta” of IP law protection, however, the competitive advantages of product configuration trademarks are strong in light of the TTAB’s 2009 precedential decision in Stuart Spector Designs, Ltd. read more...

The Rise of 360 Deals in the Music Industry
By Daniel J. Gervais, Kent M. Marcus, and Lauren E. Kilgore

360 deals can give record companies access to revenue from movie contracts, merchandise sales, and other sources “all around” the artist. They reflect a transition from an industry model focused on delivery of goods (compact discs or even iTunes tracks) to one in which music is increasingly a service generating revenues from multiple activities bundled with phone, Internet, or cable access. The authors explore the history, contents, benefits, and future of 360 deals. read more...

The Recording Artist/Songwriter Dilemma: The Controlled Composition Clause—Enough Already!
By Jay Rosenthal

Recording artists are often denied the ability to obtain full compensation when they are talented enough to be able to create, as well as perform, their own musical compositions. Recording contracts’ “controlled compensation” clauses are to blame for this restriction on potential earnings. The author maintains that it is time to eliminate such clauses from the standard recording agreement and to mandate that they be unenforceable. read more...

Recent Developments in IP Law
By John C. Gatz

From the Hill
by Hayden W. Gregory

Meeting of the Minds
By Trevor J. Smedley and Ross A. Dannenberg

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