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Limitations Upon the Enforceability of an Employee’s Covenant Not To Disclose and Not To Use Confidential Business Information Without Authorization

Employee covenants not to disclose and not to use confidential information without authorization are widely used to protect employer trade secrets and other confidential information. However, the covenants are not as routinely enforced as many believe. At a minimum, in addition to satisfying consideration requirements, these covenants should use conventional definitions of “trade secret” and “conf...

Last Twenty (L20) Collections: Applying Copyright’s Section 108(h) in Libraries, Archives and Museums Including the New Music Modernization Act for Pre-1972 Sound Recordings

Legally, libraries and archives may make and distribute copies of works in the last twenty years of their copyright, as long as there is no normal commercial exploitation of the work(s) and no reasonably priced copy available. 17 U.S.C. § 108(h). Unfortunately, § 108(h) of the 1976 Copyright Act has not been utilized by libraries and archives, in part because of the uncertainty over definitions (e...

The Patent Pilot Program: What Is It, Is It Successful, and Should It Even Exist?

Patents are notoriously complex. Unsurprisingly, litigation involving patents shares its subject matter’s innate intricacies. In the face of rising patent filings and increasingly complicated patent infringement lawsuits, Congress created the Patent Pilot Program (PPP) to combat several perceived shortcomings found among patent cases. The PPP provides a mechanism to channel patent cases to Article...

Circuit Split: De minimis Sampling From Copyrighted Recordings After VMG Salsoul, LLC v. Ciccone

Stealing music is legal again. On June 2, 2016, in VMG Salsoul, LLC v. Ciccone, the Ninth Circuit held that a sampled horn hit in Madonna’s “Vogue” was de minimis, infringing on neither the composition nor the recording of its source. The Ninth thus split from the Sixth Circuit’s notorious decision in Bridgeport Music, Inc. v. Dimension Films to exclude the de minimis defense from recording infrin...

A Review of State Criminal Trade Secret Theft Statutes

Trade secret theft in the United States is a serious problem, and criminal penalties exist for this misconduct in both federal and state statutes. For twenty years, the literature in this area has focused almost entirely on the federal statute, the Economic Espionage Act. However, federal prosecutors have shown little interest in bringing charges under this statute unless the case involves theft o...

How To Pick A Winning Patent

Determining which patents are valuable can seem a lot like picking winning lottery numbers. There were, as of 2014, approximately 2.5 million U.S. patents in force. The number of new patent applications has risen steadily to more than 411,728 each year, and if the current trend continues, about 70 percent of those applications will become patents. Like lottery tickets, most patents are worthless, ...

Which Supreme Court Cases Influenced Recent Supreme Court IP Decisions? A Citation Study

The U.S. Supreme Court has decided an increasing number of intellectual property (IP) cases—especially patent cases—over the last several terms. Which prior cases influence the stated reasoning in these recent Supreme Court IP cases? A handful of citation studies of supreme courts in the United States, both state and federal, conducted over the last forty years suggests that the Court would most o...

Who Pays When Drones Crash?

In his 1942 short story, “Runaround,” Isaac Asimov set forth three “laws” for robots: A robot may not injure a human being, or, through inaction, allow a human being to come to harm. A robot must obey the orders given it by human beings except where such orders would conflict with the First Law. A robot must protect its own existence as long as such protection does not conflict with the First or S...

Defending Breakthrough Innovation: The History and Future of State Patent Law

Congress, while enacting at least six major revisions to patent law since 1793, has left the definition of patentable subject matter essentially unchanged. The Supreme Court, on the other hand, has been uncomfortable with the concept for more than a century. Despite this long-standing discomfort, it has struggled to advance a theoretical basis for its concern. In a series of recent cases, it has f...

The Price of Privacy: How Access to Digital Privacy Is Slowly Becoming Divided by Class

The Fourth Amendment’s Third Party Doctrine has recently been extended to cover a person’s interest in their digital information. This has allowed more data to become accessible to government agencies than ever before. Under this doctrine, as soon as digital information is provided to a third party (such as Google or Facebook), it is no longer entitled to a presumption that the originator of the i...

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Google v. Oracle Round Two: Why the Federal Circuit Got it Wrong


When Google developed its mobile platform, Android, the company copied some of the code as well as the structure, sequence, and organization (SSO) of 37 Java Application Programming Interfaces (APIs). Oracle gained ownership of Java, a widely-used open-source software language, when it acq... More »

The Problem of Unpatentable Innovation in Pharmaceuticals


As capital intensive public goods, pharmaceuticals are likely to receive inefficiently-low investment in the absence of government intervention. The patent system functions well to promote innovation in the pharmaceutical industry. However, because innovation in pharmaceuticals depends on ... More »