Ending The Circuit Split Over Use Of A Competing Mark In Advertising—The Blackstone Code, 5 J. Marshall Rev. Intell. Prop. L. 157 (2006)

In KP Permanent, the Supreme Court recently confirmed that plaintiffs in trademark infringement cases under the Lanham Act have the burden of proving likelihood of confusion. As such, this article argues that lower courts do not have the authority to switch that burden of proof for such claims, even though they involve nominative uses (in which defendant is using the actual mark of plaintiff as plaintiff’s source identifier and not as a description of the defendant\u27s products or services). This article also argues that because Congress created affirmative fair use defenses for descriptive uses of marks and for trademark dilution, but did not authorize such defense for nominative uses, courts do not have the authority to create a separate fair use test where defendants have the burden of proof on “fairness.” Finally, the article shows that there is no need for a separate nominative fair use test and that some of the unique issues that arise with nominative uses may justify switching to defendants the burden of production, but not the burden of proof, on likelihood of confusion

CODING FOR LIFE - SHOULD ANY ENTITY HAVE THE EXCLUSIVE RIGHT TO USE AND SELL ISOLATED DNA?

Myriad Genetics, Inc. ("Myriad") obtained patents in the 1990s on two "isolated" human breast and ovarian cancer susceptibility genes ("BRCA").  Myriad did not list all the isolated sequences it claims to have a right to monopolize, but instead claims a patent on the physical phenomena itself  -- all DNA segments that code for the BRCA1 polypeptide, even the sequences Myriad has not identified and even those someone else in the future creates or isolates the sequences of through a method or methods not contemplated by Myriad. An impressive array of non-profit medical societies, doctors and patients sued to have the Myriad patents declared invalid.  In 2010, the District Court for the Southern District of New York held in Association for Molecular Pathology v. United States Patent and Trademark Office that the claimed product patents for isolated DNA segments constituted unpatentable subject matter under 35 U.S.C. §101.  On July 29, 2011, a divided panel of the Federal Circuit reversed the District Court and held that the isolated DNA segments constituted patentable subject matter.  Of the three member panel, Judge Lourie concluded that the isolated DNA was markedly different than the native DNA, so constituted patentable subject matter.  Although Judge Moore agreed that certain DNA segments constituted patentable subject matter, she believed that the longer isolated DNA segments probably did not constitute patentable subject matter.  However, primarily in light of the fact that the US Patent and Trademark Office has been granting patents for isolated DNA  for years, Judge Moore concurred in the judgment of Judge Lourie.  Judge Bryson concurred on one of the product claims  (for synthetic cDNA) but dissented on claims pertaining to the isolated DNA segments on the grounds that isolated DNA did not differ markedly from the native DNA and that the function of the isolated DNA was identical to the function of the native DNA.The Supreme Court stated that "Congress may not authorize the issuance of patents whose effects are to remove existent knowledge from the  public domain, or to restrict free access to materials already available."  This article argues that the Federal Circuit - not Congress - has done just that and has given Myriad a wall to restrict free access to materials that have literally been in humans for centuries.  The isolated DNA segments of claim 1 do exactly the same coding as do the native segments--nothing more; nothing less.  The segments of claim 1 do not act as primers or probes, so they do not have markedly different characteristics or utility than native DNA, which the Supreme Court has ruled courts must consider.  Moreover, the functioning of the sequence of the nucleotide bases is a physical phenomenon that Myriad has not created but has captured in its claim.  Judges Lourie and Moore disregarded Supreme Court precedent and the fundamental principle that physical phenomena are not patentable subject matter

CODING FOR LIFE - SHOULD ANY ENTITY HAVE THE EXCLUSIVE RIGHT TO USE AND SELL ISOLATED DNA?

<div>Myriad Genetics, Inc. ("Myriad") obtained patents in the 1990s on two "isolated" human breast and&nbsp;ovarian cancer susceptibility genes ("BRCA"). &nbsp;Myriad did not list all the isolated sequences it claims to&nbsp;have a right to monopolize, but instead claims a patent on the physical phenomena itself &nbsp;-- all DNA&nbsp;segments that code for the BRCA1 polypeptide, even the sequences Myriad has not identified and even&nbsp;</div><div>those someone else in the future creates or isolates the sequences of through a method or methods not&nbsp;contemplated by Myriad.&nbsp;An impressive array of non-profit medical societies, doctors and patients sued to have the Myriad patents&nbsp;declared invalid. &nbsp;In 2010, the District Court for the Southern District of New York held in Association&nbsp;for Molecular Pathology v. United States Patent and Trademark Office that the claimed product patents&nbsp;for isolated DNA segments constituted unpatentable subject matter under 35 U.S.C. &sect;101. &nbsp;On July 29,&nbsp;2011, a divided panel of the Federal Circuit reversed the District Court and held that the isolated DNA&nbsp;segments constituted patentable subject matter. &nbsp;Of the three member panel, Judge Lourie concluded that the isolated DNA was markedly different than&nbsp;the native DNA, so constituted patentable subject matter. &nbsp;Although Judge Moore agreed that certain&nbsp;DNA segments constituted patentable subject matter, she believed that the longer isolated DNA segments&nbsp;probably did not constitute patentable subject matter. &nbsp;However, primarily in light of the fact that the US&nbsp;Patent and Trademark Office has been granting patents for isolated DNA &nbsp;for years, Judge Moore&nbsp;concurred in the judgment of Judge Lourie. &nbsp;Judge Bryson concurred on one of the product claims &nbsp;(for&nbsp;synthetic cDNA) but dissented on claims pertaining to the isolated DNA segments on the grounds that&nbsp;isolated DNA did not differ markedly from the native DNA and that the function of the isolated DNA was&nbsp;identical to the function of the native DNA.The Supreme Court stated that "Congress may not authorize the issuance of patents whose effects are to&nbsp;remove existent knowledge from the &nbsp;public domain, or to restrict free access to materials already&nbsp;available." &nbsp;This article argues that the Federal Circuit - not Congress - has done just that and has given&nbsp;Myriad a wall to restrict free access to materials that have literally been in humans for centuries. &nbsp;The&nbsp;isolated DNA segments of claim 1 do exactly the same coding as do the native segments--nothing more;&nbsp;nothing less. &nbsp;The segments of claim 1 do not act as primers or probes, so they do not have markedly&nbsp;different characteristics or utility than native DNA, which the Supreme Court has ruled courts must&nbsp;consider. &nbsp;Moreover, the functioning of the sequence of the nucleotide bases is a physical phenomenon&nbsp;that Myriad has not created but has captured in its claim. &nbsp;Judges Lourie and Moore disregarded Supreme&nbsp;Court precedent and the fundamental principle that physical phenomena are not patentable subject matter.</div

Access to Knowledge as a Bridge over the Troubled Waters of Copyright Fair Use -- From Jefferson to Mandela to Google

The copyright fair use doctrine is a key to increasing access to knowledge and decreasing the digital divide between information-rich and information-poor countries. Publishers have sued Google for copyright infringement for scanning the copyrighted books of the publishers into a digital database, so Google users can search the database for certain words to determine what books contain words of interest to the user. The Google litigation, however, is only a small piece of the larger access to knowledge puzzle. The larger issue is access to the books themselves, translated into the native languages of citizens of developing countries. Yet copyright stands in the way of translating copyrighted books – unless such translations would constitute fair use. This article analyzes the fair use doctrine, existing case law and scholarship on fair use and shows that the courts have recognized increased access as a factor favoring fair use. It then argues that increasing access by individuals to literary works they would otherwise not have access to results in a conclusion of fair use in the case of the Google Library Project litigation and the translation of books into the native languages of citizens of developing countrie

Using Stories in Coach Education

The purpose of this paper is to illustrate how storied representations of research can be used as an effective pedagogical tool in coach education. During a series of continuing professional development seminars for professional golf coaches, we presented our research in the form of stories and poems which were created in an effort to evoke and communicate the lived experiences of elite professional golfers. Following these presentations, we obtained written responses to the stories from 53 experienced coaches who attended the seminars. Analysis of this data revealed three ways in which coaches responded to the stories: (i) questioning; (ii) summarising; and (iii) incorporating. We conclude that these responses illustrate the potential of storied forms of representation to enhance professional development through stimulating reflective practice and increasing understanding of holistic, person-centred approaches to coaching athletes in high-performance sport

Here and then: Learning by making places with digital spatial story lines

In this article, we introduce and analyze learning experiences made possible by a teaching framework that we have developed and call digital spatial story lines (DSSLs). DSSLs offer a novel approach to learning on the move by engaging learners with related conceptual practices of archival curation, digital mapping, and the production of public history. Learners collaborate to make and follow map-based story lines that bridge archival media they curate in public libraries and museums onto city neighborhoods these media describe. Story lines can be followed as tours to explore under- or untold stories about a city’s public history at walking scale. To illustrate and study learning within the DSSL framework, we describe and analyze one design iteration from a larger, multi-year research project with local museum, library, and high school partners. Our analysis shows how making and following story lines provided opportunities for pre-service social studies teachers to engage with and learn about the public history of racial segregation, Civil Rights Movement activism, and American Roots Music in Nashville, Tennessee (aka the “Music City”). Our analysis focuses on using archival material to create and share public history as a mobile experience of being both “here-and-then”—a form of palimpsest in which learning on the move layers together historic places and the voices of different historical actors. We end with a discussion of who speaks for the public history of city neighborhoods and the prospects and limitations for teaching and learning with the DSSL framework

\u3ci\u3eProsopis glandulosa\u3c/i\u3e persistence is facilitated by differential protection of buds during low- and high-energy fires

Rangelands worldwide have experienced significant shifts from grass-dominated to woody-plant dominated states over the past century. In North America, these shifts are largely driven by overgrazing and landscape-scale fire suppression. Such shifts reduce productivity for livestock, can have broad-scale impacts to biodiversity, and are often difficult to reverse. Restoring grass dominance often involves restoring fire as an ecological process. However, many resprouting woody plants persist following disturbance, including fire, by resprouting from protected buds, rendering fire ineffective for reducing resprouting woody plant density. Recent research has shown that extreme fire (high-energy fires during periods of water stress) may reduce resprouting capacity. This previous research did not examine whether high-energy fires alone would be sufficient to cause mortality. We created an experimental framework for assessing the “buds-protection-resources” hypothesis of resprouting persistence under different fire energies. In July–August 2018 we exposed 48 individuals of a dominant resprouting woody plant in the region, honey mesquite (Prosopis glandulosa), to two levels of fire energy (high and low) and root crown exposure (exposed vs unexposed) and evaluated resprouting capacity. We censused basal and epicormic resprouts for two years following treatment. Water stress was moderate for several months leading up to fires but low in subsequent years. Epicormic and basal buds were somewhat protected from lowand high-energy fire. However, epicormic buds were protected in very few mesquites subjected to high-energy fires. High-energy fires decreased survival, caused loss of apical dominance, and left residual dead stems, which may increase chances of mortality from future fires. Basal resprout numbers were reduced by high-energy fires, which may have additional implications for long-term mesquite survival. While the buds, protection, and resources components of resprouter persistence all played a role in resprouting, high-energy fire decreased mesquite survival and reduced resprouting. This suggests that high-energy fires affect persistence mechanisms to different extents than low-energy fires. In addition, high-energy fires during normal rainfall can have negative impacts on resprouting capacity; water stress is not a necessary precursor to honey mesquite mortality from highenergy fire

Exotic herbivores and fire energy drive standing herbaceous biomass but do not alter compositional patterns in a semiarid savanna ecosystem

Questions: Fire regime alterations are pushing open ecosystems worldwide past tipping points where alternative steady states characterized by woody dominance prevail. This reduces the frequency and intensity of surface fires, further limiting their effectiveness for controlling cover of woody plants. In addition, grazing pressure (exotic or native grazers) can reinforce woody encroachment by potentially reducing fine-fuel loads. We investigated the effects of different fire energies on the herbaceous plant community, together with mammalian wildlife herbivory (exotic and native combined) exclusion, to inform best management practices. Location: Texas semi-arid savanna, southern Great Plains, USA. Methods: We conducted an experiment in which we manipulated fire intensity and herbivore access to herbaceous biomass in a split-plot design. We altered fire energy via fuel addition rather than applying fire under different environmental conditions to control for differences in standing biomass and composition attributable to differential plant physiological status and fire season. Results: High-energy fire did not reduce herbaceous biomass or alter plant community composition, although it did increase among-plot variability in composition and forb biomass relative to low-energy fire and non-burned controls. Grazing pressure from native and non-native mammalian herbivores reduced above-ground herbaceous biomass regardless of fire treatments, but did not alter community composition. Conclusions: Managers seeking to apply high-intensity prescribed fire to reduce woody encroachment will not negatively impact herbaceous plant productivity or alter community composition. However, they should be cognizant that repeated fires necessary for greatly reducing woody plants in heavily invaded areas might be difficult to accomplish due to fine-fuel reduction from wild herbivores. High fencing to restrict access by wildlife herbivores or culling might be necessary to build fuels sufficient to conduct high-intensity burns for woody-plant reductio