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Volume 7 | Number 1

Volume 7 | Number 1 (Winter 2006)

You may download the Full Edition, or click on a citation below for the individual article. 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)

A REASONABLE APPREHENSION OF LAWSUIT: A RESTRICTIVE THRESHOLD FOR FEDERAL COURT JURISDICTION IN PATENT DECLARATORY JUDGMENTS
William S. Nabors
7 Wake Forest Intell. Prop. L.J. 1

This article analyzes the Federal Circuit’s reasonable apprehension of lawsuit standard for declaratory judgment jurisdiction, currently pending before the Supreme Court in Medimmune, Inc. v. Genentech, Inc., 427 F.3d 958 (Fed. Cir. 2005), cert. granted, 126 S. Ct. 1329 (U.S. Feb. 21, 2006) (No. 05-608). Arguments were heard on October 4, 2006.

The article begins by discussing the history of declaratory judgments beginning with the constitutional standard as it evolved among the Circuit Courts. It then surveys the plaintiff’s burden of establishing federal court standing. In analyzing the Federal Circuit’s reasonable apprehension of lawsuit test for declaratory judgment jurisdiction, the author argues that the reasonable apprehension of lawsuit standard is not a complete proxy for standing. Instead, the author argues that a straightforward standing analysis would be more appropriate.

TYING UP FEIST’S LOOSE ENDS: A PROBABILITY THEORY OF COPYRIGHTABLE CREATIVITY
Thomas M. Byron
7 Wake Forest Intell. Prop. L.J. 45

The article begins with an examination of the Supreme Court’s 1991 decision in Feist Publications, which established a nebulous “creativity” requirement for a work to obtain copyright protection. After concluding that the Court’s opinion gave little guidance to lower courts, the author suggests that the mathematical theory of probability would serve well in conceptualizing creativity. Specifically, the author proposes that a work’s relative creativity be assessed based on the probability that a potentially copyrightable work will be created given the totality of constraints on the work’s genesis.

FOR THE PEOPLE AND BY THE PEOPLE: A NEW PROPOSAL FOR DEFINING INDUSTRY STANDARDS IN COMPUTER SOFTWARE
Matthew J. Duane
7 Wake Forest Intell. Prop. L.J. 97

This article focuses on the increasingly contentious world of standard setting organizations (SSOs) in the software and hardware industries. The article discusses the history of standards, and their importance to modern commerce, including the role played by modern SSOs. The article then details the problems faced by SSOs in the technology arena, namely the temptation for an SSO participant to seek the adoption of standards that are in the participant’s own economic interest. This tension between the participants’ self-interested motivations and the SSOs overarching goal of serving the common good has resulted in cries of patent misuse, anti-trust violations, and other abuses.

The author argues that the federal government currently is too removed from the standard setting process and plays little active role in the functioning of private SSOs. Ultimately, the author argues that the situation can best be remedied by the establishment of a federal SSO; the article then details what this entity would look like and how it would operate.

THE AMERICAN INVENTOR’S PROTECTION ACT: A LEGISLATIVE HISTORY
Edward R. Ergenzinger, Jr.
7 Wake Forest Intell. Prop. L.J. 145

The American Inventor’s Protection Act of 1999 (AIPA) was born from the need to stop unscrupulous invention development firms from bilking unsavvy independent inventors. The bill was a $390 billion omnibus spending bill that implemented the biggest changes to patent law since 1952, and was ultimately signed into law by President Clinton. In previous Congresses, legislation relating to intellectual property had rarely sparked partisan battles, but this was not true of the AIPA. This article chronicles the legislative history of the AIPA, including the interesting motivations of the bill’s supporters and critics, and how strange bedfellows were made during debate on the bill.