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Volume 2 | Number 1

Volume 2 | Number 1 (Winter 2002)

You may download and read the Full Edition, or click on a citation below for the individual articles.

THE “DEPRESSING” EFFECT OF ELI LILLY AND CO. V. BARR LABS, INC., ON THE PHARMACEUTICAL AND BIOTECHNOLOGY INDUSTRIES
Kirby B. Drake and Edward R. Ergenzinger, Jr.
2 Wake Forest Intell. Prop. L. J. 1

In Eli Lilly and Co. v. Barr Laboratories, Inc., the Federal Circuit invalidated Lilly’s patent on the popular anti-depressant drug Prozac based on a doctrine known as double patenting. This decision came as a shock to the pharmaceutical industry and energized generic drug manufacturers. Although an equitable result was achieved based upon the facts, the fact that the court improperly applied its double patenting analysis on rehearing is likely to result in a variety of unintended consequences to the pharmaceutical and biotechnology industries.

THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT:
THE MAGNUSON-MOSS ACT FOR THE INTERNET AGE

Jason Peltz
2 Wake Forest Intell. Prop. L. J. 48

With the continued growth of the computer software industry, new problems are presented in regards to the sale and licensing of computer information products. The intangible form of computer software essentially renders Article 2 of the Uniform Commercial Code inapplicable. As such, consumers and courts alike are left with little guidance as to which laws govern the sale or licensing of such goods. The Uniform Computer Transactions Act (UCITA) was created in an attempt to provide such guidance. However, the application of the UCITA has created a debate concerning consumer protection. Do the warranty protections offered by UCITA adequately protect the consumer or should the warranty requirements of the Magnuson-Moss Act apply to software programs? The author analyzes both the UCITA and the Magnuson-Moss Act and renders an opinion as to which approach should be implemented.

VALUING TRADEMARKS IN THE CONTEXT OF A § 482 INCOME RE-ALLOCATION:
DHL CORPORATION AND SUBSIDIARIES V. COMMISSIONER OF INTERNAL REVENUE

Mark Chiarello
2 Wake Forest Intell. Prop. L.J. 67

Valuing Trademarks in the Context of a §482 Income Re-Allocation provides a critical analysis of how the sale of a trademark between commonly controlled companies should be valued. This article analyses a tax court’s approach to trademark valuation in DHL Corporation and Subsidiaries v. Commissioner of Internal Revenue and presents an alternative approach to its trademark valuation.

AN ANALYSIS OF THE ORIGINS OF THE FEDERAL TRADEMARK DILUTION ACT OF 1995: HOW IT INFRINGES UPON THE PRODUCT CONFIGURATION ASPECTS OF PATENT LAW
Jason Wenzel
2 Wake Forest Intell. Prop. L. J. 89

This paper discusses the development of the Federal Trademark Dilution Act, and its application in Sunbeam Products, Inc. v. West Bend Co. It then argues that the Sunbeam Court wrongly used the FTDA in applying it to a product configuration, which should be protected by patent law, not by trademark law. The paper states that the application of the FTDA should be limited to trademarks, not product configurations, and discusses the ramifications of applying the Act to product configurations.

LAISSEZ FAIRE TOO FAR? AN ANALYSIS OF UNITED STATES AND EUROPEAN UNION INTELLECTUAL PROPERTY EXHAUSTION REGIMES AND PARALLEL TRADE RESTRICTIONS
Christian Bock
2 Wake Forest Intell. Prop. L. J. 106

There is a developing cleavage between the high courts of the United States (U.S.) and the European Union (E.U.) on the issue of intellectual property right exhaustion on parallel imported materials. This note argues that the U.S. Supreme Court has chosen to take a path rooted in libertarian economics at the expense of authors and inventors, while the European Court of Justice has decided that it will protect the intellectual property rights of EU citizens while still abiding by the EU’s free-trade mantra.