Law Commons^™

The Federal Circuit And Patentability: An Empirical Assessment Of The Law Of Obviousness, Lee Petherbridge, R. Polk Wagner

All Faculty Scholarship

It is by now a cliché to suggest that the United States Court of Appeals for the Federal Circuit has weakened the standards for obtaining patents. In this article, we empirically assess that Court’s performance on the ultimate question of patentability— the requirement that a patentable invention must be “nonobvious.” Our findings suggest that the conventional wisdom may not be well-grounded, at least on this measure. Nowhere is the Federal Circuit’s controversial role as the locus of judicial power in the U.S. patent system more evident than in the context of the doctrine of obviousness under 35 U.S.C. § 103. …

Fair Use Harbors, Gideon Parchomovsky, Kevin A. Goldman

All Faculty Scholarship

The doctrine of fair use was originally intended to facilitate those socially optimal uses of copyrighted material that would otherwise constitute infringement. Yet the application of the law has become so unpredictable that would-be fair-users can rarely rely on the doctrine with any significant level of confidence. Moreover, the doctrine provides no defense for those seeking to make fair uses of material protected by anti-circumvention measures. As a result, artists working in media both new and old are unable to derive from copyrighted works the full value to which the public is entitled. In this Essay, we propose a solution …

Mandating Access To Telecom And The Internet: The Hidden Side Of Trinko, Daniel F. Spulber, Christopher S. Yoo

All Faculty Scholarship

Antitrust has long played a major role in telecommunications policy, demonstrated most dramatically by the equal access mandate imposed during the breakup of AT&T. In this Article we explore the extent to which antitrust can continue to serve as a source of access mandates following the Supreme Court's 2004 Trinko decision. Although Trinko sharply criticized access remedies and antitrust courts' ability to enforce them, it is not yet clear whether future courts will interpret the opinion as barring all antitrust access claims. Even more importantly, the opinion contains language hinting at possible bases for differentiating among different types of access, …

Restraints On Innovation, Herbert J. Hovenkamp

All Faculty Scholarship

Beginning with the work of Joseph Schumpeter in the 1940s and later elaborated by Robert W. Solow's work on the neoclassical growth model, economics has produced a strong consensus that the economic gains from innovation dwarf those to be had from capital accumulation and increased price competition. An important but sometimes overlooked corollary is that restraints on innovation can do far more harm to the economy than restraints on traditional output or pricing. Many practices that violate the antitrust laws are best understood as restraints on innovation rather than restraints on pricing.

While antitrust models for assessing losses that result …

The Patent Office Meets The Poison Pill: Why Legal Methods Cannot Be Patented, Andrew A. Schwartz

Publications

In 2003, for the first time in its 170-year history, the United States Patent Office began awarding patents for novel legal innovations, in addition to traditional inventions such as the telephone or airplane. Commentators have accepted the Patent Office's power to grant legal method patents, but at the same time have criticized this new type of patent on policy grounds. But no one has suggested that the Patent Office exceeded its authority by awarding patents for legal methods, until now.

In the Patent Act of 1952, which is still in effect today, Congress established certain requirements for patentability, including a …

Patents On Legal Methods? No Way!, Andrew A. Schwartz

Publications

An “invention,” as used in the United States patent laws, refers to anything made by man that employs or harnesses a law of nature or a naturally occurring substance for human benefit. A watermill, for instance, harnesses the power of gravity to run machinery. But legal methods, such as tax strategies, are not inventions in this sense, because they employ “laws of man” — not laws of nature to produce a useful result.

Independent Judicial Research In The "Daubert" Age, Edward K. Cheng

Vanderbilt Law School Faculty Publications

The Supreme Court's Daubert trilogy places judges in the unenviable position of assessing the reliability of often unfamiliar and complex scientific expert testimony. Over the past decade, scholars have therefore explored various ways of helping judges with their new gatekeeping responsibilities. Unfortunately, the two dominant approaches, which focus on doctrinal tests and external assistance mechanisms, have been largely ineffective. This Article advocates for a neglected but important method for improving scientific decision making-independent judicial research. It argues that judges facing unfamiliar and complex scientific admissibility decisions can and should engage in independent library research to better educate themselves about the …

Law And Heidegger’S Question Concerning Technology: Prolegomenon To Future Law Librarianship, Paul D. Callister

Faculty Works

Following World War II, the German philosopher Martin Heidegger offered one of the most potent criticisms of technology and modern life. His nightmare is a world whose essence has been reduced to the functional equivalent of a giant gasoline station, an energy source for modern technology and industry. "This relation of man to the world [is] in principle a technical one . . . [It is] altogether alien to former ages and histories. For Heidegger, the problem is not technology itself, but the technical mode of thinking that has accompanied it." Such a viewpoint of the world is a useful …

Cyberspace As/And Space, Julie E. Cohen

Georgetown Law Faculty Publications and Other Works

The appropriate role of place- and space-based metaphors for the Internet and its constituent nodes and networks is hotly contested. This essay seeks to provoke critical reflection on the implications of place- and space-based theories of cyberspace for the ongoing production of networked space more generally. It argues, first, that adherents of the cyberspace metaphor have been insufficiently sensitive to the ways in which theories of cyberspace as space themselves function as acts of social construction. Specifically, the leading theories all have deployed the metaphoric construct of cyberspace to situate cyberspace, explicitly or implicitly, as separate space. This denies all …

Chapter 9 - Incorporation Of Terms, Eliza Mik

Eliza Mik

No abstract provided.

Lacan, Law, And Science: Striking The Balance Between Real And Symbolic, David Caudill

David S Caudill

No abstract provided.

Maieusis Through A Gated Membrane: "Getting The Science Right" In Public Decisionmaking, Deborah Hussey Freeland

Deborah M. Hussey Freeland

Law meets science in a remarkable variety of contexts. While their interactions are often studied in particular contexts, general theories of their interaction are wanting. This paper presents a general model of an interface between law and science that identifies how their interaction must be structured to promote effective interdisciplinary collaboration, and then demonstrates how this model can be used to analyze problems as diverse as: a large-scale intergovernmental attempt at ecosystem restoration; and the effects of a method of science-based alternative dispute resolution on science and negotiated outcomes. In both cases, the model features of a properly functioning law-science …

Chapter 10 - Electronic Assent, Eliza Mik

Eliza Mik

No abstract provided.

Chapter 11 - Conclusions, Eliza Mik

Eliza Mik

No abstract provided.

Thesis - Abstract, Eliza Mik

Eliza Mik

No abstract provided.

Chapter 5 - Offer And Acceptance, Eliza Mik

Eliza Mik

No abstract provided.

Contract Formation In Open Electronic Networks - Chapter 1 Introduction, Eliza Mik

Eliza Mik

No abstract provided.

Chapter 2 - The Technological Premises, Eliza Mik

Eliza Mik

No abstract provided.

Chapter 7 - Determining "Dispatch" And "Receipt", Eliza Mik

Eliza Mik

No abstract provided.

Chapter 4 - Identification And Attribution, Eliza Mik

Eliza Mik

No abstract provided.

Chapter 8 - The Contents Of On-Line Contracts, Eliza Mik

Eliza Mik

No abstract provided.

Chapter 3 - From Automation To Autonomy, Eliza Mik

Eliza Mik

No abstract provided.

Chapter 6 - Effectiveness Of Acceptance, Eliza Mik

Eliza Mik

No abstract provided.

Sustainable Intensive Agriculture: High Technology And Environmental Benefits, Drew L. Kershen

Drew L. Kershen

No abstract provided.

The Fourth Amendment Status Of Stored E-Mail: The Law Professors’ Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia

Susan Freiwald

This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …

A First Principles Approach To Communications' Privacy, Susan Freiwald

Susan Freiwald

The Technology Of Surveillance: Will The Supreme Court's Expectations Ever Resemble Society's?, Stephen E. Henderson

Stephen E Henderson

Beyond The (Current) Fourth Amendment: Protecting Third-Party Information, Third Parties, And The Rest Of Us Too, Stephen E. Henderson

Stephen E Henderson

For at least thirty years the Supreme Court has adhered to its third-party doctrine in interpreting the Fourth Amendment, meaning that so far as a disclosing party is concerned, information in the hands of a third party receives no Fourth Amendment protection. The doctrine was controversial when adopted, has been the target of sustained criticism, and is the predominant reason that the Katz revolution has not been the revolution many hoped it would be. Some forty years after Katz the Court's search jurisprudence largely remains tied to property conceptions. As I have demonstrated elsewhere, however, the doctrine is not the …