Undoubtedly, if you are reading this article, your life has been affected dramatically by inventions. You may be reading this on the printed page, thereby owing much of your enjoyment to the printing press. You could also be reading this from the screen of a computer, an invention that has more recently had a tremendous impact on the world. If you are sitting under an artificial light, in a chair, or just about anywhere, the inventive spirit of others has had an impact on your life. In fact, almost every aspect of our lives has been altered by inventions. For that reason, the importance of inventions and the inventive spirit is hard to deny, and the value to people is easy to understand.

The significance and importance of inventions are so great that the Constitution of the United States offers protections for the interests of inventors. Essentially, it gives Congress the power to grant inventors exclusive rights to their inventions. During this time of exclusivity, the inventor can reap the appropriate commercial, reputational, or personal benefits that come from his invention. This protection is also significant, not because the inventor has rights to his invention, but because his rights are exclusive and allow him to forbid others to use, make, offer to sell, or sell the invention. This protection is the basis for today’s patent laws in the United States.

Courts have in fact found that some unlicensed uses of patented devices are not infringing. One doctrine that allows such a use to be reached is the experimental use exception. The “experimental use exception” actually describes two entirely separate legal doctrines: (1) an exception to the public use bar; and (2) a defense to unlicensed use of a patented item. The former will be discussed only briefly. The main focus of this paper is an analysis of the experimental use exception as a defense to unlicensed use of a patented item.

Cite as 3 N.C. J.L. & Tech. 253 (2002) | Download PDF

Imagine you’re an attorney for an entertainment company and one of your job responsibilities is to protect your company’s copyrights. The company has, among other valuable properties, a top-rated television series. You discover someone is making unauthorized use of copyrighted images and sound clips from the hit show. Following standard procedure, you send out a cease-and-desist letter to the infringing party. The letter is effective and the person discontinues use of the material. Another job well done? Maybe not.

The infringement was on the Internet, and the infringer was a fan site owner. Although the fan complied with the demands of your letter and shut her site down, she has spread the word via the Internet to other fans about her unfair treatment. They form a large group of angry fans that plan an organized protest and a boycott of the show. Acting within your legal rights has cost the entertainment company something critical to its continued success: fan support.

The public nature of the Internet creates unique problems in copyright enforcement. There are, however, practical solutions to the dilemma faced by entertainment companies who want to retain the loyalty of fans while protecting their valuable copyrights.

This Comment will discuss those effective alternate solutions within the bounds of existing copyright law. First it will discuss the copyright law’s relevance to Internet fan sites and set the framework for a discussion of enforcement options available to entertainment companies. Next, it will explore the merits and disadvantages of the traditional approach used by entertainment companies to enforce their copyrights against infringing uses on the Internet. Finally, it will examine in detail two unique model approaches with varying degrees of control by the copyright owners. Either of these model approaches may be used with success by entertainment companies to balance the need for continued fan support with the protection of copyrights.

Cite as 3 N.C. J.L. & Tech. 273 (2002) | Download PDF

The United States Patent and Trademark Office (PTO) recently granted a number of “obvious” patents, which beg the question: is everything patentable? According to the Supreme Court in holding that an artificially-created, oil-eating bacteria was patentable, patentable subject matter consists of “anything under the sun made by man.” Although the Court’s definition of patentability appears broad, statutory limitations still apply, and inventions are supposed to be innovative, novel, and non-obvious.

In the past decade, the PTO has allowed the patenting of numerous obvious products and methods, including the American staple of peanut butter and jelly. Such patents, which are problematic because they are obvious, improperly remove products and methods from the public domain. The PTO should supply the public with an efficient means to contest the validity of such “problem patents” that may have been issued improperly. In response, Congress created the process of reexamination and recently amended reexamination to include broadened rights for third party requesters, under a new provision for optional inter partes reexamination.

This new provision is intended to encourage third parties to use reexamination for patent validity issues and reduce the volume of litigation concerning validity. However, inter partes reexamination still has major faults and deficiencies which make its use unattractive and risky to the third party requester.

This Comment will discuss the current condition of the reexamination system for a third party requester. It will focus on the recent provision for optional inter partes reexamination, its problems and deficiencies, and whether this provision is truly a viable alternative to litigation as envisioned by Congress. It will then discuss pending amendments to optional inter partes reexamination proposed during the summer of 2001, which, when enacted, will help to relieve some of the provision’s current deficiencies. Finally, it will propose additional changes which should be made to the inter partes provision before it will truly be a viable alternative to litigation for a third party complainant. As the reexamination system currently stands, reexamination is not a viable alternative to litigation, or a means for the public to question the validity of problem patents.

Cite as 3 N.C. J.L. & Tech. 305 (2002) | Download PDF

The Internet has revolutionized the world by providing virtually unlimited access to information and by creating a new medium for social interaction. While extremely advantageous, this unlimited access to information also leads to children being exposed to potentially harmful, sexually explicit material. With its vast number of sites, it is estimated that the World Wide Web contains more than one billion different Web pages. Approximately fifteen million of these pages have pornographic content. With this many sites, access to pornographic websites is only one click away, whether intentional or not. For example, if one accidentally types ‘whitehouse.com’ instead of ‘whitehouse.gov,’ one will end up at a pornographic website offering a free trial membership.

By the year 2005, forty-four million children under the age of eighteen are expected to be using the Internet. As children’s access to the Internet and the number of websites continue to grow, there is continual debate over what, if anything, should be done to shield children from these pornographic sites. Congress has repeatedly and, to date, unsuccessfully tried to regulate access to these sites by children. The debate centers on how best to protect children from pornography without violating free speech rights guaranteed in the First Amendment. In the end, the best solution may come from market forces and new technology instead of laws, since the unique nature of the Internet makes it extremely difficult to regulate.

Cite as 3 N.C. J.L. & Tech. 333 (2002) | Download PDF

Not many years ago, a person needing medical or legal advice picked up the telephone and called a local professional, and often she made an appointment to see that professional in person. Today, telephone calls and in-person appointments are viewed by some as inefficient uses of time and energy, especially since with just a click of a computer mouse, the person can be surfing the Internet. The Internet is brimming with legal and medical websites, offering advice, and, often, much more intense consultation. While people use the Internet to find and obtain advice from professionals because it is often quicker and more efficient than telephone calls and in-person appointments, users as well as providers of such services should be concerned with the quality of information given and with the competency of the providers of the website.

Despite the attractiveness of the Internet, professionals who use the Internet to advertise and provide their services should be aware of the presence of emerging legal and ethical issues, some of which are unresolved. There have been media accounts of unscrupulous professionals such as the lawyer on the Internet who accepted money from an Internet user for her child custody battle, and then failed to appear in court for her case; later, the user discovered he was suspended from practicing law in that state. There are also concerns about physicians prescribing potentially dangerous medications without the benefit of performing a physical examination or obtaining a thorough medical history. These unscrupulous professionals and others like them find the Internet to be an attractive medium for their schemes because it is “cheap, pervasive and lacking serious regulation.” These examples are illustrative of the tremendous challenges facing the legal and medical professions and their respective regulatory agencies in their efforts to police their members in a faceless medium without boundaries.

Cite as 3 N.C. J.L. & Tech. 353 (2002) | Download PDF

Statistics show that more and more Americans are using the World Wide Web, making the Internet an increasingly integral part of everyday life. Fifty-six percent of Americans now have Internet access and are using it for the exchange of text, images, video and sound. During the last six months of 2000, the number of American adults with Internet access increased by 16 million, with the largest growth attributable to the increase of Internet use in the workplace. Almost every business, from Fortune 500 companies to small entrepreneurs, maintains websites and electronic mail (e-mail) addresses to communicate with and service their customers. Eighty-four percent of American workers report using the Internet every day or several times a day, as the workplace becomes increasingly dependent on the Internet for research, transactions, and everyday office functions.

Much of the inefficiency problem with e-mail can be attributed to the increase in the number of advertisers using the Internet. It is not surprising, given the number of people online and using e-mail, that advertisers are attempting to capitalize on this seemingly endless pool of potential customers. However, an advertiser’s dream has created nightmares for individual consumers and businesses alike. The nightmare comes in the form of spam.

Cite as 3 N.C. J.L. & Tech. 375 (2002) | Download PDF