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Volume 6 | Number 1

Volume 6 | Number 1 (Spring 2006)

You may download and read the Full Edition, or click on a citation below for the individual articles. Journal content dating from 2005 is available on the Lexis-Nexis database. Content dating from 2006 is available on the HeinOnline database. Journal content, starting with Volume 8, is now available on the Westlaw database. (subscriptions required)


THE ON-SALE BAR: A UNIFORM AND CONSISTENT STANDARD

Scott R. Hovey
6 Wake Forest Intell. Prop. L.J. 1

The on-sale bar test to determine whether an invention is patentable requires a court to apply general contract principles to a patent dispute to determine if the inventor’s actions constituted an offer for sale. Applications of general contract principles to this factual question is an effective and consistent method of law. Courts are familiar with these principles, which therefore provide a foundation for on-sale bar issues while supporting the policies of the United States patent system.


RETHINKING THE HATCH-WAXMAN ACT:
BALANCING BOTH SIDES OF THE EQUATION
Kelly A. Gidcumb
6 Wake Forest Intell. Prop. L.J. 23

The Hatch-Waxman Act, passed by Congress in 1984 in an effort to relieve the pressure of rising drug prices, paved the way for generic manufacturers of medications to enter the marketplace. Many commentators are concerned that the ease of obtaining FDA approval for generic manufacturers and shorter patent terms for brand name drugs may result in less incentive for research-based pharmaceutical companies to invest in drug development. The demands of research-based pharmaceutical companies and generic manufacturers pull in different directions on the Act, but analysis of the current state of the law does suggest ways of balancing the interests of society with incentives for research-based companies to continue drug development.


AS OUR HERITAGE CRUMBLES INTO DUST: THE THREAT OF STATE LAW PROTECTION FOR PRE-1972 SOUND RECORDINGS

Henry Lee Mann
6 Wake Forest Intell. Prop. L.J. 45

States may grant virutually unlimited protection to sound recordings created prior to 1972, which has serious consequences for important works in our cultural heritage. Because a handful of record companies own the rights to the vast majority of early sound recordings, only the most commercially viable recordings are restored and remastered, while the remainder are left to literally crumble to dust. The legal bases for the primary decision in this area of law are flawed from the perspectives of law and policy. Uniformity in copyright provisions for early sound recordings would further the interests of society with a more reasonable and consistent protection scheme.


WHO’S FOOLING WHOM:
AN ECONOMIC ANALYSIS OF EXPRESSIVE TRADEMARK USE

Robert E. Pfeffer
6 Wake Forest Intell. Prop. L.J. 69

Counterfeit goods bearing expressive trademarks create confusion among consumers in the post-sale market. No comprehensive framework exists for dealing with trademark disputes involving expressive marks. A proper solution would recognize that traditional trademark doctrine and language alone do not present a solution to the expressive mark problem and would withstand scrutiny under relevant trademark doctrine. In search of such a solution, this article applies economic analysis to case law and commentary on expressive marks and provides a basis for evaluating expressive trademarks that is more consistent with the aims of trademark law.