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Abstract:
Search engines such as Google.com provide a tremendous public benefit by enhancing, improving, and mainstreaming information-gathering techniques on the Internet. After the dotcom bubble burst in 2001, Google claimed a domineering position in the marketplace, securing its niche as "the nexus of human curiosity." Google's corporate mission to make the world's information more accessible and more useful is revealing of its vast influence in today's world. Google provides an ever-improving search technology that is capable of scouring billions of web sites, news articles, literary works, images, and videos in the "Indexable Web." Google features not only search functionality, but also several Internet-based services that have further solidified its online empire.

This Comment explores and seeks to derive a balance between public interest in the disclosure of a creative work and a copyright owner's exclusive rights granted under copyright law. It begins by providing a brief overview of the American copyright system and explaining the technology involved in Google's "Image Search." After an in-depth analysis of copyright infringement and fair use jurisprudence, it argues that Google's use of thumbnail images in its Image Search is fair and noninfringing. In order to preserve the usefulness of the Internet, this Comment proposes that courts recognize an interpretation of copyright jurisprudence that will promote easy access to information, while preserving copyright protections.

copyright, internet, web page, infringement, fair use

Abstract:
The hotly contested debate about the nature of confrontation rights of the criminally accused under the Sixth Amendment continues. The latest issue before the United States Supreme Court is whether intent to prevent live in-court testimony is a necessary element of the constitutional forfeiture analysis. A number of state courts, including the Supreme Court of California in People v. Giles, 152 P.3d 433, 440 (2007), cert. granted, 128 S.Ct. 976 (2008), have rejected the element of intent. Other courts, including the Illinois Supreme Court in People v. Stechly, 870 N.E.2d 333 (2007), have mandated the inclusion of the element of intent. The matter is now before the United States Supreme Court.

In this article, we argue that the inclusion of the element of intent into the forfeiture analysis under the Sixth Amendment is not supported by the English and American common law and that it is not constitutionally mandated. Some courts mistakenly believe that forfeiture by wrongdoing necessarily requires intent because they improperly link the doctrine to jurisprudence that analyzes forfeiture under the Federal Rules of Evidence. The direct consequence of this improper connection to evidentiary rules is that these courts confuse the constitutional notion of forfeiture with that of waiver. We argue that a showing of intent to prevent the testimony of an out-of-court declarant is not constitutionally required in determining whether an accused has forfeited his or her Sixth Amendment rights to confrontation and disagree with Professor James Flanagan's waiver analysis.

sixth amendment, forfeiture, confrontation

Abstract:
The Marking Statute expressly limits the patent owner's recovery of damages if the patent owner itself, anyone making, offering for sale, or selling failed to mark its patented invention, sold within the United States, with the associated patent number. In these cases, damages must be limited to those that accrue after the infringer is provided actual notice of infringement. The authors suggest that, in light of relevant jurisprudence and the purpose of the Marking Statute, owners of patents that are directed to any business activities on the Internet should mark their own websites, and require their licensees to mark their websites, with the relevant patent numbers to avail themselves of constructive notice.

patent, internet, web page, marking, infringement

Abstract:
The current version of FRE 407 prevents the use of evidence of remedial measures taken after an event that caused an injury or harm in order to prove negligence, culpable conduct, or strict product liability. Our proposal is that the language of Rule 407 be amended to preclude the admissibility of remedial measures which are taken both before and after an injury. This change will implement the relevancy rationale for the rule.

Abstract:
The debate about the nature of confrontation rights of the criminally accused under the Sixth Amendment has been lively in recent years. The United States Supreme Court addressed a key confrontation issue definitively during its most recent term when it issued a controversial opinion in Giles v. California, 128 S. Ct. 2678 (2008). The latest issue before the United States Supreme Court was whether intent to prevent live in-court testimony is a necessary element of the constitutional forfeiture analysis. State courts had been split on this point for a number of years. Many, including the Supreme Court of California in People v. Giles, 152 P.3d 433, 440 (2007), overruled in, 128 S. Ct. 976 (2008), rejected the element of intent. Conversely, some, including the Illinois Supreme Court in People v. Stechly, 870 N.E.2d 333 (2007), mandated the inclusion of the element of intent. The United States Supreme Court sided with the seeming minority view and held that unconfronted out-of-court statements are admissible only where the witness is unavailable as a direct result of the conduct that was intended by the accused to render the witness unavailable for live in-court testimony.

In this article, we contend that the common law does not support the inclusion of the element of intent in the forfeiture analysis under the Sixth Amendment. Justice Scalia's plurality opinion in Giles misreads the common law cases as requiring an intent to procure unavailability for application of the forfeiture by wrongdoing exception. Our analysis of the historical record will demonstrate that the English common law judges who fashioned the forfeiture doctrine and American courts that further explained the principle did not make intent to render unavailable an element of the confrontation exception.

sixth amendment, forfeiture, confrontation

Abstract:
This article urges that the obviousness jurisprudence for claims to genetic sequences be overhauled to conform with the standard stated in KSR Int'l Co. v. Teleflex Inc., 127 S. Ct. 1727 (2007). An obviousness inquiry under 35 U.S.C. - 103 requires a determination of whether a skilled artisan would have found the claimed invention obvious in light of the analogous prior art. We demonstrate that the Court of Appeals for the Federal Circuit has established an overly rigid standard for determining the obviousness of claims directed to genetic sequences. This analysis is primarily concerned with whether structurally similar genetic sequences are known. This is misguided because such an inquiry elevates form over substance and fails to consider the unique relationship between a gene and the protein that the gene encodes. We urge that the CAFC revise and clarify the relevant obviousness standard in light of KSR.

To aid the CAFC, we propose an expansive yet flexible test for evaluating obviousness of claims to genetic sequences. Our test requires that one first establish a prima facie case of obviousness by demonstrating that both (1) the protein encoded by the claimed sequence(s) is known in the art; and (2) its amino acid sequence is known or can be readily determined by conventional methods in order to render claims to genetic sequences obvious. If the prima facie case is established, the claims at issue are obvious as a matter of law unless the applicant rebuts the prima facie case by, for example, relying on "secondary considerations," unexpected results, and/or surprising or unexpected properties of the sequences to establish its nonobviousness. We believe that our proposed approach strikes a sensible middle ground between two extremes: holding all claims to genetic sequences nonobvious unless a structurally similar molecule is known in prior art and holding all claims to genetic sequences of a protein obvious if the protein is known in the art. Our test would also achieve a proper balance between encouraging scientific development by granting patents on true innovations and protecting the public from patents that should never be granted.

Patent, KSR, Obviousness, Nonobviousness, In re Kubin, In re Deuel, In re O'Farrell