INTELLECTUAL PROPERTY LAW SECTION OF THE STATE BAR OF TEXAS THE UNIVERSITY OF TEXAS SCHOOL OF LAW STRENGTH OF THE INTERNATIONAL TRADE COMMISSION AS A PATENT VENUE ChristopherA. Cotropia ENDING DILUTION DOUBLESPEAK: REVIVING THE CONCEPT OF ECONOMIC HARM IN THE DILUTION ACTION Alexander Dworkowitz MODERNIZING COPYRIGHT LAW Miriam Bitton NO BITIN' ALLOWED: A HIP-HOP COPYING PARADIGM FOR ALL OF US Horace E. Anderson, Jr. STATE BAR SECTION NEWS TEXAS INTELLECTUAL PROPERTY LAW JOURNAL The University of Texas School of Law Volume 20 Fall 2011 Number 1 ARTICLES STRENGTH OF THE INTERNATIONAL TRADE COMMISSION AS A PATENT 1 VENUE Christopher A. Cotropia ENDING DILUTION DOUBLESPEAK: REVIVING THE CONCEPT OF 25 ECONOMIC HARM IN THE DILUTION ACTION Alexander Dworkowitz MODERNIZING COPYRIGHT LAW 65 Miriam Bitton No BITIN' ALLOWED: A HIP-HOP COPYING PARADIGM FOR ALL OF US 115 Horace E. Anderson, Jr. STATE BAR SECTION NEWS 179 Preparedat the University of Texas School of Law (U.S. ISSN #1068-1000) Copyright 2011 State Bar of Texas, Intellectual Property Law Section 1 TEXAS INTELLECTUAL PROPERTY LAW JOURNAL The University of Texas School of Law Volume 20 Fall 2011 Number 1 The State Bar of Texas Intellectual Property Law Section Editor JAMES M. SELLERS The University of Texas School of Law Editor-in-Chief JESSICA ACHTSAM Executive Articles Editor Managing Editor Executive Submissions Editor BRIAN TALBOT CUMINGS SHANNON M. KIDD MICHELLE FRIEDMAN MURRAY Publications Editor Administrative Editor Technology Editor COURTNEY JONES JAMES WANG JOSEPH FINDLEY Chief Articles Editors Symposium Editors Associate Editors JENNIFER GEORG BAILEY HARRIS MICHAEL DENNY CONRAD Hsu JEFF SOFFER LEEANN GAO BENJAMIN PEI ROBERT HOPKINS XIAOXIAO XUE ANDREA KELLEY BRUCE PINEGAR ZACHARY POPOVICH LINDSEY POWERS JEFF WEIDEMEYER Staff Editors JESSE ADLAND CHELSEA YOUNG GRATE THOMAS SCHIANO ERIC BACUS SEAN M. HILL PETER SIM RICHARD BELLAMY PHILLIP B. JOHNSON MARK SPEEGLE HALEY JUSTINE BERGMAN SONALI MISHRA CHARLIE STIERNBERG VERONIKA BORDAS KYLE E. MITCHELL MATTHEW DAVID TANNER ANDREW J. BROADAWAY JULIE PATEL DUSTIN TAYLOR DAWSON A. BROTEMARKLE LINDA JANETTE PENA MARGARET THOMPSON RODRIGO GARZA CANTU SHANNYN PIPER ANDREW TRAN JOSHUA AARON COTTLE LUCIA G. RAY WADE HAMPTON TUCKER MEREDITH ELKINS RIGOBERTO ABARCA VINDIOLA PARTH GEJJI YONGJIN ZHU Business Manager PAUL GOLDMAN Faculty Advisors PROF. ROBERT BONE PROF. OREN BRACHA PROF. JOHN GOLDEN ii TEXAS INTELLECTUAL PROPERTY LAW JOURNAL JOURNAL ANNOUNCEMENTS . The Texas Intellectual Property Law Journal would like to congratulate the newly appointed Articles Editors: Veronika Bordas, Andrew J. Broadaway, Matthew David Tanner, and Dustin Taylor. The Journal would also like to congratulate several of its editors for their outstanding contributions to this issue: Brian Talbot Cumings, Jennifer Georg, and Courtney Jones. Finally, mark your calendars for the Journal's Thirteenth Annual Intellectual Property Law Symposium, which will be held at The University of Texas School of Law on Friday, February 17, 2012. For more information, please see pages vi and vii. iii TEXAS INTELLECTUAL PROPERTY LAW JOURNAL THE JOURNAL The Texas Intellectual Property Law Journal is published in cooperation with the State Bar of Texas three times per year at the University of Texas School of Law. The Journal is the official journal of the State Bar of Texas Intellectual Property Law Section. Materials published in the Journal do not necessarily represent the views or actions of the State Bar of Texas, or of its Intellectual Property Law Section, unless approved by the State Bar of Texas or by the Section, respectively. They also do not necessarily represent the views of the University of Texas, its School of Law, or the Journaland its members. VISION STATEMENT The Journal's vision is to be the leading intellectual property law journal .at the premiere IP law university. We want to be the forum of choice for intellectual property law practitioners, professors, and students around the globe. Our primary focus will center on providing significant and innovative contributions to U.S. intellectual property law. We recognize that our long-term success is tied to the excellence of the intellectual property law program at the University of Texas School of Law. We will work with the university, IP practitioners, and the IP section of the state bar for the betterment of that program. MISSION STATEMENT The Journal'sprimary mission is the timely publication of an intellectual property law journal that is respected as a high quality IP law publication. In order to achieve our mission, we will: " Maintain impeccable academic integrity throughout each issue; " In conjunction with our stakeholders, continue to improve our processes to ensure we maintain our quality and timeliness; and " Strive to present articles that are on the forefront of IP issues and/or offer thought provoking insights into intellectual property law. We will continue to provide forums for presenting IP issues through the Journal, our annual IP symposium, and other opportunities as they may arise. And finally, we will promote, within the Journal and the university, an environment where law students interested in intellectual property law can learn, lead, and have fun while engaging in one of the most important areas of law developing in the global economy. iv TEXAS INTELLECTUAL PROPERTY LAW JOURNAL SUBSCRIPTION Subscription costs for members of the State Bar of Texas Intellectual Property Law Section are covered by annual membership dues. Please note that membership dues in the Intellectual Property Law Section are not deductible as a charitable contribution for federal income tax purposes. However, dues may be deductible as a business expense. The annual subscription price for nonmembers of the Section is: $27.06 for Texas residents; $25.00 for Domestic residents; $30.00 for foreign subscribers. For any questions or problems regarding a subscription, please contact our Business Manager, Paul Goldman, at (512) 232-1149 or [email protected]. Subscriptions are renewed automatically unless timely notice of termination is received. REPRINTS Individual current and back issues, when available, may be purchased for $10.00 plus $2.00 shipping. Texas residents, please add applicable sales tax. Subscription and single issue requests should be directed to: The University of Texas School of Law Publications P.O. Box 8670 Austin, Texas 78713 Attn: Paul Goldman Web Site: http://www.tiplj.org (see the Subscribe tab on the Home page) CITE Please cite as: TEX. INTELL. PROP. L.J. V TEXAS INTELLECTUAL PROPERTY LAW JOURNAL SUBMISSIONS AND EDITORIAL POLICIES The Journal is pleased to consider unsolicited manuscripts for publication. Manuscripts should be submitted electronically by email to [email protected] to the attention of the Executive Submissions Editor. Alternatively, submissions can be submitted via Expresso at http://law.bepress.com/expresso. Citations should conform to The Bluebook: A Uniform System of Citation (19th ed. 2010) and the Texas Law Review Manual on Usage & Style (11th ed. 2008). General requirements for manuscripts can be found at www.tiplj.org. ANNUAL SYMPOSIUM The Journalhosts an annual symposium on a current topic in intellectual property law. These symposia have been the source of many of the Journal's valued articles. Their purpose is to promote awareness of the development and formation of intellectual property law and to forge closer ties among practitioners, judges, scholars, and students. We welcome your interest in these events. The Journal hosted the Twelfth Annual Intellectual Property Law Symposium on February 18, 2011, at the University of Texas School of Law. The Journal's Thirteenth Annual Intellectual Property Law Symposium will be held at The University of Texas School of Law on Friday, February 17, 2012. Visit our Symposium website at www.ipsymposium.com for more information about the upcoming Symposium, or visit our Journal website at www.tiplj.org for archived presentation materials from past Symposia. Participants will be able to earn MCLE credit and can register using the form on the following page or by visiting our Symposium website. For additional symposium information, such as sponsorship or presentation opportunities, please contact the Journal's Symposium Editors at symposium(dtipli.org. vi TEXAS INTELLECTUAL PROPERTY LAW JOURNAL Registration Form Thirteenth Annual IP Law Symposium February 17, 2012 The University of Texas School of Law Registration Fee " Early Registration: $150 " Late Registration: $200 To be considered early: " Mailed payments must be postmarked by January 6, 2012. " Online payments must be submitted by 5PM CST, January 6, 2012. Personal Information Name: Firm/Organization: Address: City, State, Zip: Phone: Email: How to Submit Payment By Mail: Texas Intellectual Property Law Journal The University of Texas School of Law 727 E. Dean Keeton St., Suite 4.134B Austin, TX 78705 Online:www.ipsymposium.com vii u 4 e a Strength of the International Trade Commission as a Patent Venue Christopher A. Cotropia* I. Introduction.................................................................................................. 2 II. ITC's Unique Position in Patent Enforcement ............................................. 4 III. Kyocera Decision and the Predictions ........................................................ 7 A. Federal Circuit's Decision in Kyocera .................................................... 7 B. Postulated Impacts of Kyocera.............................................................9