Washington Journal of Law, Technology & Arts

Volume 11  | Spring 2016  | Number 5

General Public License Version 2: The Risk of Direct Patent Infringement

Chike Eze
11 Wash. J.L. Tech. & Arts  385

6/17/2016

Intellectual Property

The GNU General Public License Version 2 (“GPLv2”) is a popular license for open source software. Despite its importance, only a few GPLv2 cases have been litigated in the courts. In these litigated cases, the plaintiffs claimed breach of contract or copyright infringement against defendants. However, in XimpleWare v. Ameriprise, the plaintiff explored a novel patent-related avenue for open source software authors to attack vendors and customers of open source software. Specifically, XimpleWare alleged direct patent infringement against Versaware, a software vendor, and Ameriprise, Versaware’s customer, for distributing XimpleWare’s GPLv2-licensed software in violation of GPLv2’s copyleft provisions in section 2. This Article analyzes (1) the merits of XimpleWare’s direct patent infringement claims against Versata and Ameriprise, including whether a court would likely have inferred implied patent rights and conditions on such rights from GPLv2 terms; and (2) the implications of such claims for vendors and customers of software licensed under GPLv2. The Article suggests that an author may have a stronger direct patent infringement claim against a vendor that sells software incorporating the author’s GPLv2-licensed source code than against the vendor’s customer who merely purchases the software and provides copies of it to its workers. Lastly, the Article provides practice pointers for vendors and customers of software licensed under GPLv2 moving forward. 

 

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A Comparative Study of Non-Compete Agreements for Trade Secret Protection in the United States and China

Hui Shangguan
11 Wash. J.L. Tech. & Arts  405

6/17/2016

Intellectual Property

Non-compete agreements are commonly used in both the United States and China, and are regarded as an important means for employers to prevent employees or rival companies from using valuable trade secrets for competitive purposes. Despite their popularity, however, the enforceability of non-competes in both countries can be difficult to determine. In the U.S., the level to which non-competes are fully enforced varies by jurisdiction. While some state courts apply a “rule of reason,” others, such as California, prohibit non-competes altogether. In contrast, Chinese courts tend to support non-competes. This Article provides a comparative perspective of non-competes in the U.S. and China, highlighting different factors that the two countries consider when deciding enforceability. Specifically, courts in the U.S. focus on the existence of legitimate business interests, while courts in China focus on economic compensation. In order to curb the over-enforcement of non-compete agreements in China and keep the balance between trade secret protection and employee mobility, this Article recommends that China define the protectable business interest by statute and narrowly construe the validity of non-compete agreement.

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Can Siri 10.0 Buy Your home? The Legal And Policy Based Implications Of Artificial Intelligent Robots Owning Real Property

David Marc Rothenberg
11 Wash. J.L. Tech. & Arts  439

6/17/2016

Constitutional & Regulatory

This Article addresses whether strong artificial intelligent robots (“AI”) should receive real property rights. More than a resource, real property promotes self-respect to natural persons such as human beings. Because of this distinction, this Article argues for limited real property rights for AIs. In developing this proposition, it examines three hypotheticals of a strong AI robot in various forms of real property ownership. The first hypothetical determines whether an AI could work as an agent in real property transactions. As robots currently act as agents in various capacities, the groundwork exists for an AI to enter this role. The second hypothetical considers whether an AI could own property in a manner similar to a corporation. In this instance, an AI would own the property in its name, but generate wealth for its shareholders and have oversight by natural persons. Corporations can acquire property as artificial persons, so too AIs could meet similar legal requirements. As such, the law should allow such ownership rights to AIs. The third hypothetical delves into whether an AI should own property outright like a natural person. After describing potential reasons for this approach, this Article explains why legal and policy based arguments weigh against this extension of property rights to AIs. Instead, any possibility of an AI owning property like a natural person should come from Congress, not the courts.

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Sugar High

Andrew Fuller
11 Wash. J.L. Tech. & Arts  461

6/17/2016

Intellectual Property

Edible marijuana products in commercial marijuana markets, or “edibles,” pose a new challenge to our existing regulatory infrastructure. Marijuana has acquired increasing social and legal acceptance as a form of treatment for a variety of serious illnesses; as such, some states have been challenged to balance the availability and affordability of these treatments with the risk they pose in terms of consumer confusion. Edibles that take the shape of traditional retail candies offer the greatest risk of consumer confusion, especially to children. Consequently, this Article proposes that courts—or, alternately, legislators—should interpret and apply the Lanham Act in a way that enables and encourages retail candy manufacturers to claim and protect the trade dress of their candy’s aesthetic designs. The risk of consumer confusion posed by state development of the marijuana market could thus be mitigated by private enforcement of trade dress protection via infringement actions brought by major candy retailers.

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