Digital Commons Network^™

Innovator, Scholar, Friend: Remembering Dmitry Karshtedt, Laura Pedraza-Fariña, David L. Schwartz

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Can Utility Doctrine Resurrect The Genus Claim?, Norman Siebrasse

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

The More Things Change: In Memory Of Dmitry Karshtedt, Liza Vertinsky

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

From Russia With Love: Dmitry Karshtedt's Path To Patents, Andrew W. Torrance

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Remembering Dr. Dmitry Karshtedt As A Scholar And Friend, J. Jonas Anderson, Sean B. Seymore, Timothy R. Holbrook

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Nonobviousness And Unmotivated, Yet Minor, Inventions, Christopher A. Cotropia

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Staying A Jane Doe Post Dobbs And Roe: The Risk Modern Technology Poses With Archaic Abortion Restrictions, Grace E. Marino

Northwestern Journal of Technology and Intellectual Property

Dobbs v. Jackson Women’s Health Organization sent shockwaves across the nation, overturning years of precedent and marking a pivotal moment as Roe v. Wade receded from current legal standing. This consequential abortion case immediately ignited controversy, prompting states to swiftly enact laws prohibiting abortion. Beyond the immediate implications for the health and safety of those seeking abortions, the new legal landscape poses additional risks. Since the era when abortion was last illegal, rapid technological advancements have transformed the American societal landscape, resulting in daily surveillance of its citizens. The convergence of technological progress, societal dependence on technology, and the absence …

Abuse Of Dominance In Tech: Comparative Analysis Of Margin Squeeze Claims Against U.S., Eu, And Korean Telecommunications Firms, Alex Hyojung Roh

Northwestern Journal of Technology and Intellectual Property

Telecommunications network operators around the world are often characterized as natural monopolists. Only one or few telecommunications firms control nationwide networks through which all other ancillary service providers reach their customers. Many jurisdictions, including the United States, European Union, and Korea, seek to prevent such powerful market players from abusing their dominance by regulating their business conduct under competition law.

This Note focuses on the regulation of “margin squeeze,” whereby a dominant firm leverages its market power in one market with the intent to monopolize a separate but related market. The United States does not currently impose a standalone antitrust …

Sensitive Inferences In Targeted Advertising, Sarita Schoenebeck, Cami Goray, Amulya Vadapalli, Nazanin Andalibi

Northwestern Journal of Technology and Intellectual Property

People’s data is scattered around the Internet. From the meals we eat to the people we meet, we leave detailed data traces online that are then aggregated, modeled, brokered, and sold. Some data types, like medical records or religious beliefs, are legally protected, restricting how they can be collected and used. However, most data has little regulatory protection. Regardless of whether data is protected, most inferences—predictions about people’s identities, attitudes, or interests using machine learning—have even fewer protections. This is a concern for our privacy, dignity, and wellbeing, especially when inferences are sensitive, personal, or intimate in nature.

This article …

"Guarding The Sanctity Of Choice And Privacy": Data Privacy And Abortion–The Next Frontier Of The Fourth Amendment, Ryan S. Houser

Northwestern Journal of Technology and Intellectual Property

In the wake of the Dobbs decision, a seismic shift reverberates through the landscape of reproductive rights. As investigations into private healthcare decisions surge, states wield increasingly sophisticated tools to probe into the private lives of pregnant individuals, igniting a contentious debate on privacy and data security. The United States is entering a looming era where internet search histories, emails, text messages, and GPS data become ammunition in the arsenal of state-led investigations. Dubbed as “dragnet criminal surveillance tools,” these tactics will unleash a torrent of prosecutions, raising profound questions about the sanctity of personal information in the digital age. …

Technology Specificity And Equitable Access To Pharmaceuticals, Ana Santos Rutschman

Northwestern Journal of Technology and Intellectual Property

Current models of production of pharmaceuticals, particularly those dependent on intellectual property (and adjacent) protections, often contribute to the highly asymmetrical and inequitable distribution of resulting outputs. These problems are especially acute when emerging pathogens cause transnational public health crises in which there is concurrent demand for the same medicines in both lower- and higher-income countries, with populations in the Global South getting very limited timely access, if any, to preventatives and life-saving medicines—even when an outbreak disproportionately affects populations in these very countries.

This essay examines an under-theorized and under-explored way to help correct this historical and persisting deficit …

Disclosing Machine Inputs And Outputs: The Vulnerability Of Legal Technology In Civil Discovery, Joshua Concannon

Northwestern Journal of Technology and Intellectual Property

Smart technology has begun to infiltrate nearly every corner of society. While the legal profession managed to resist this intrusion relative to other industries for many years, it is now undeniable that machines frequently supplement lawyers and civil procedures such as discovery will need to adapt. As litigants, usually the well-resourced ones, increasingly utilize machine intelligence, concerns about accuracy and unfair advantage have sprung up on the other side of technology use. Information asymmetry is exacerbated when technology is accessible to only one party, and, consequently, curious litigants may seek discovery about the technology’s implementation in the context of the …

The Right To Data Privacy: Revisiting Warren & Brandeis, Anthony G. Volini

Northwestern Journal of Technology and Intellectual Property

In their famous 1890 article The Right to Privacy, Samuel Warren and Louis Brandeis found privacy as an implicit right within existing law. Regarded as perhaps the most influential legal essay of all time, it offers concepts that ring as true today as they did in 1890. In defining privacy as an important legal principle implicit in the law, they focused on information privacy, such as public disclosure of personal information, rather than decisional privacy. Analyzing the 1890 article is an ideal starting point to assess the origins of privacy law and to understand privacy issues from a simpler …

Patented Brand Drugs Are Essential Facilities And Regulatory Compacts, Clovia Hamilton, Gerald Stokes

Northwestern Journal of Technology and Intellectual Property

The COVID-19 health pandemic highlighted the need for more readily affordable patented drugs. Brand drug companies argue that they need to recuperate their research and development (“R&D”), marketing and advertising expenses. The incentive to innovate also needs to be preserved. Drug companies are entitled to a profit and a return on their investment, just as afforded to utility monopolies. Intellectual property and human rights clash relative to access to patented drugs. We provide several proposed approaches to resolve this dilemma and conclude with an argument that patented drugs should be considered a public utility. A model based on the public …

Curiosities Of Standing In Trade Secret Law, Charles T. Graves

Northwestern Journal of Technology and Intellectual Property

Standing under the Uniform Trade Secrets Act – the right to pursue a misappropriation claim – is a vexing question when compared to patent, copyright, and trademark law. Instead of requiring ownership or license rights as a condition to sue, courts often find that mere possession of an asserted trade secret suffices for standing, even when the provenance of the information is murky. In some cases, courts even allow trade secret plaintiffs to claim intellectual property rights in the preferences and desires expressed to them by their customers in lawsuits designed to stop former employees from doing business with those …

About-Face: How Facebook’S Restrictions On User Posts Could Violate Antitrust Law, Efrem Berk

Northwestern Journal of Technology and Intellectual Property

This Note examines whether Facebook’s restrictions on its users’ posts are subject to Sherman Act § 2. This Note looks at the economic activity generated by social media activity and argues that posts are commerce. While this piece finds that current antitrust jurisprudence likely favors Facebook, an alternative approach sought by some antitrust scholars could influence judges to preclude the platform’s restrictions.

The Power Of Local: Nearby Innovators Dominate Patented Technology Development, Richard Gruner

Northwestern Journal of Technology and Intellectual Property

Advances by nearby innovators – close enough to interact in person – play key roles in patented technology development. Patents frequently cite nearby innovations, identifying these local innovations as the background for further patented inventions. Such citations reveal narrow geographic areas with intensely active innovation communities advancing similar projects and technologies. Local innovators – working within a commutable distance of 40 miles or less of each other – accounted for 25 percent of all patent citations between 2010 and 2019 and about 21 percent of citations by disinterested patent examiners reviewing patent applications. These percentages of citations to local advances …

Law Informs Code: A Legal Informatics Approach To Aligning Artificial Intelligence With Humans, John J. Nay

Northwestern Journal of Technology and Intellectual Property

Artificial Intelligence (AI) capabilities are rapidly advancing. Highly capable AI could cause radically different futures depending on how it is developed and deployed. We are unable to specify human goals and societal values in a way that reliably directs AI behavior. Specifying the desirability (value) of AI taking a particular action in a particular state of the world is unwieldy beyond a very limited set of state-action-values. The purpose of machine learning is to train on a subset of states and have the resulting agent generalize an ability to choose high value actions in unencountered circumstances. Inevitably, the function ascribing …

The Evidentiary Implications Of Interpreting Black-Box Algorithms, Varun Bhatnagar

Northwestern Journal of Technology and Intellectual Property

Biased black-box algorithms have drawn increasing levels of scrutiny from the public. This is especially true for those black-box algorithms with the potential to negatively affect protected or vulnerable populations.1 One type of these black-box algorithms, a neural network, is both opaque and capable of high accuracy. However, neural networks do not provide insights into the relative importance, underlying relationships, structures of the predictors or covariates with the modelled outcomes.2 There are methods to combat a neural network’s lack of transparency: globally or locally interpretable post-hoc explanatory models.3 However, the threat of such measures usually does not bar an actor …

Compulsory Licensing: A Potential Solution To The Antitrust Dilemma Of Technology Standards Setting, Shen Peng

Northwestern Journal of Technology and Intellectual Property

The Constitution grants patent owners exclusive rights over their inventions to “promote the Progress of Science.”1 This clause was drafted based on the belief that monetary incentives granted to the first inventor, such as the proceeds from selling and licensing the invention, will foster new ideas and accelerate innovation to the benefit of the public welfare. However, when the first inventor is the sole benefactor of the rewards from the innovation, subsequent innovation may be stifled.

For instance, the first person to invent the idea of a mobile phone but lacking the right to use the underlying technologies essential to …

A Loaded God Complex: The Unconstitutionality Of The Executive Branch’S Unilaterally Withholding Zero-Days, Brendan Gilligan

Northwestern Journal of Technology and Intellectual Property

No abstract provided.

Video Games And The First Amendment, Eli Pales

Northwestern Journal of Technology and Intellectual Property

The video game industry is massive, with an annual revenue of $180 billion worldwide; $60 billion of that in America alone. For context, the industry’s size is greater than that of the movie, book, and music industries combined. Yet, despite this market dominance, the video game industry is relatively new. Only in the 2011 decision of Brown v. Entertainment Merchants Association did the Supreme Court extend First Amendment protection to games. Still, the Court failed to define the scope of the game medium. As understood by an average person, a video game could be something as simple as Pac-Man or …

Quantum Copyright Law: Schrödinger’S Cat, Banksy’S Shredder, And Art On The Edge, Richard Chused

Northwestern Journal of Technology and Intellectual Property

An object has been assembled by artists I know that presents a fascinating set of conundrums about the relationships between quantum physics, shredders, random surprises, the value of art, and copyright law. Seems fantastical, right? And so it is. The object of concern is a metal box a little under four feet tall, about eighteen inches deep, and a bit less than three feet wide. The box is welded together along all twelve of its edges. It has an opening across one side. And there is a small control panel on top.

Before the box was welded shut, a set …

Copyright And Federalism: Why State Waiver Of Sovereign Immunity Is The Best Remedy For State Copyright Infringement, Leroy J. Ellis V

Northwestern Journal of Technology and Intellectual Property

When a photographer intentionally takes a picture of a subject, or a writer puts a story to paper, the resulting works are protected by copyright. That protection is bolstered after the authors register their works with the Copyright Office. All private parties, from individuals to corporations, can be sued for infringing on the work should they use it without pay or permission.

However, what happens when the infringer is not a private party? What happens when the state or a state entity is the infringer? What happens when a public university decides to use a copyright owner’s work without pay …

The First Amendment And Online Access To Information About Abortion: The Constitutional And Technological Problems With Censorship, John Villasenor

Northwestern Journal of Technology and Intellectual Property

To what extent could an abortion-restrictive state impede access to online information about abortion? After Dobbs, this question is no longer theoretical. This essay engages with this issue from both a legal and technological perspective, analyzing First Amendment jurisprudence as well as the technological implications of state-level online censorship. It concludes that the weight of Supreme Court precedent indicates that state attempts to censor information regarding out-of-state abortion services would violate the First Amendment. That said, the essay also recognizes that as Dobbs itself upended precedent, it is unclear what Supreme Court would do when ruling on questions regarding …

Rethinking Equitable Estoppel In Patent Law, Joshua J. Lustig

Northwestern Journal of Technology and Intellectual Property

In almost every context, the Federal Circuit has used estoppel doctrines to provide protection to parties from some sort of injustice. Yet recently, with equitable estoppel, the Federal Circuit has decided to infuse concepts of Article III justiciability to justify limiting the doctrine as only applicable to issued patents. In doing so, the Federal Circuit has ignored the long history behind equitable estoppel in favor of a rule that is improperly rationalized by the Constitution. This note argues that Federal Circuit's recent equitable estoppel jurisprudence is inconsistent with equity's goal of fairness and presents a new theory of equitable estoppel …

Countering Personalized Speech, Leon G. Ho

Northwestern Journal of Technology and Intellectual Property

Social media platforms use personalization algorithms to make content curation decisions for each end user. These personalized recommendation decisions are essentially speech conveying a platform's predictions on content relevance for each end user. Yet, they are causing some of the worst problems on the internet. First, they facilitate the precipitous spread of mis- and disinformation by exploiting the very same biases and insecurities that drive end user engagement with such content. Second, they exacerbate social media addiction and related mental health harms by leveraging users' affective needs to drive engagement to greater and greater heights. Lastly, they erode end user …

Beacons: A Viable Solution To The Ever-Evolving Problem Of Corporate Data Breaches, Lauren Fiotakis

Northwestern Journal of Technology and Intellectual Property

In an increasingly virtual world, data breaches continuously plague large corporations. These companies have few options to keep their data out of the hands of persistent hackers, who often discover ways around any safeguards that may be in place. It seems as though any measures companies are currently able to employ merely delay the inevitable breach that will bring with it the potential loss of both customers’ data and their faith in the privacy and security of their information. These attacks can be debilitating to corporations; thus, it seems only fair to provide them the ability to take active measures …

Toward Decentralized Commercial Law For Digital Assets, Marek Dubovec

Northwestern Journal of Technology and Intellectual Property

Technology affects various facets of the society and law. It has been tightly coupled in a symbiotic relationship with commercial law, including the Uniform Commercial Code (U.C.C.). While the conceptual framework of the U.C.C. and its realist ethos has fostered innovation since the 1950s, recent technological advances pose new challenges. In particular, digital assets traded in decentralized blockchain systems promise to engender a wide array of applications, prompting new business practices.

A number of efforts have been recently undertaken to address the fundamental challenges to established legal concepts posed by these technological advances. All these efforts march forward grappling with …

Student Speech Online: A Matter Of Public Concern, Eric Hogrefe

Northwestern Journal of Technology and Intellectual Property

The Supreme Court’s recent decision in Mahanoy Area School District v. B. L. ex rel. Levy partially answered the long-standing question of when schools can police student speech that takes place online. But Mahanoy largely ignored decades of scholarship, and opinions by lower courts, all of which assumed online speech was governed by the Court’s earlier student speech cases—especially the seminal Tinker v. Des Moines Independent Community School District.

This Note argues that Mahanoy and Tinker are consistent with each other, and both are consistent with the Court’s decisions governing another distinctive kind of speech: public employee speech. It …