Law Commons^™

Clarifying The Doctrine Of Inequitable Conduct, Elizabeth I. Winston

Scholarly Articles

Addressing squarely the issue of the multiple standards of materiality in inequitable conduct litigation, Therasense v. Becton Dickinson raises many difficult issues that could be clarified through the lens of the analogous concept of fraud on the Trademark Office. The standards for finding fraud on the Trademark Office lack the ambiguity found in the doctrine of inequitable conduct, despite the parallel penalties of unenforceability and requirements of proof of materiality and intent. Informed by the many decisions of Judge Michel, this essay concludes that the standards for finding fraud before the Trademark Office, as set forth in In re Bose, …

When Machines Are Watching: How Warrantless Use Of Gps Surveillance Technology Violates The Fourth Amendment Right Against Unreasonable Searches, David Thaw, Priscilla Smith, Nabiha Syed, Albert Wong

Articles

Federal and state law enforcement officials throughout the nation are currently using Global Positioning System (GPS) technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enforcement’s warrantless uses of GPS surveillance technology, and courts are looking for direction from the Supreme Court. Most recently, a split has emerged between the Ninth and D.C. Circuit Courts of Appeal on the issue. In United States v. Pineda-Moreno, the Ninth Circuit relied on United States v. Knotts — which approved the limited use of beeper technology without a warrant — to …

Legal Reasoning And Scientific Reasoning, Phoebe C. Ellsworth

Articles

In my presentation for the 2010 Meador Lectures on Rationality, I chose to compare legal reasoning and scientific reasoning. Both law and science pride themselves on the rationality of their intellectual methods and believe that those methods are designed to analyze questions and reach the correct conclusions by means of reason, free from cognitive or emotional biases. Of course, both law and science often fall short of this ideal at all levels, from the decisions about individual legal cases or scientific studies to the acceptance of general theories. In many ways, the biases that mislead legal and scientific thinkers are …

Super Deference, The Science Obsession, And Judicial Review As Translation Of Agency Science, Emily Hammond Meazell

Michigan Law Review

This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …

Antitrust And Innovation: Where We Are And Where We Should Be Going, Herbert J. Hovenkamp

All Faculty Scholarship

For large parts of their history intellectual property law and antitrust law have worked so as to undermine innovation competition by protecting too much. Antitrust policy often reflected exaggerated fears of competitive harm, and responded by developing overly protective rules that shielded inefficient businesses from competition at the expense of consumers. By the same token, the IP laws have often undermined rather than promoted innovation by granting IP holders rights far beyond what is necessary to create appropriate incentives to innovate.

Perhaps the biggest intellectual change in recent decades is that we have come to see patents less as a …

"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh

All Faculty Scholarship

No abstract provided.

Following You Here, There, And Everywhere; An Investigation Of Gps Technology, Privacy, And The Fourth Amendment, 45 J. Marshall L. Rev. 1 (2011), Stephanie G. Forbes

UIC Law Review

No abstract provided.

The Best Available Technology Standard, Lital Helman, Gideon Parchomovsky

All Faculty Scholarship

Copyright liability for web-hosting will be a key determinant of the evolution of the Internet in years to come. Depending on their design, the legal rules that shape the liability of web-hosts can stunt the development of the Internet as a medium of expression or enhance it. Hence, adopting the optimal liability regime is a matter of crucial importance. This Article proposes a radical change in web-hosts’ copyright liability for illegal content posted by users. Our main thesis is that web-hosts’ liability should be guided by the “Best Available Technology” principle, according to which web-hosts that employ the best filtering …

Partial Patents, Gideon Parchomovsky, Michael Mattioli

All Faculty Scholarship

In this Article, we propose a way to improve the workings of the patent system. Unlike most extant reform proposals that focus on the USPTO and the Federal Circuit and the procedures they employ, our proposal is concep- tual in nature. We introduce two new intellectual property forms — “quasi- patents” and “semi-patents.” Both forms are designed to mitigate the social costs of traditional patents by increasing the use and availability of new inventions and research information. Quasi-patents, as we define them, would avail only against direct business competitors of the inventor, but not against anyone else. Semi-patents would have …

Are Those Who Ignore History Doomed To Repeat It?, Peter Decherney, Nathan Ensmenger, Christopher S. Yoo

All Faculty Scholarship

In The Master Switch, Tim Wu argues that four leading communications industries have historically followed a single pattern that he calls “the Cycle.” Because Wu’s argument is almost entirely historical, the cogency of its claims and the force of its policy recommendations depends entirely on the accuracy and completeness of its treatment of the historical record. Specifically, he believes that industries begin as open, only to be transformed into closed systems by a great corporate mogul until some new form of ingenuity restarts the Cycle anew. Interestingly, even taken at face value, many of the episodes described in the …

Deregulation Vs. Reregulation Of Telecommunications: A Clash Of Regulatory Paradigms, Christopher S. Yoo

All Faculty Scholarship

For the past several decades, U.S. policymakers and the courts have charged a largely deregulatory course with respect to telecommunications. During the initial stages, these decisionmakers responded to technological improvements by narrowing regulation to cover only those portions of industry that remained natural monopolies and deregulating those portions that became open to competition. Eventually, Congress began regulating individual network components rather than services, mandating that incumbent local telephone companies provide unbundled access to any network element. As these elements became open to competition, the courts prompted the Federal Communications Commission to release almost the entire network from unbundling obligations. The …

Was Mechanization De-Skilling? The Origins Of Task-Biased Technical Change, James Bessen

Faculty Scholarship

Did nineteenth century technology reduce demand for skilled workers in contrast to modern technology? I obtain direct evidence on human capital investments and the returns to skill by using micro-data on individual weavers and an engineering production function. Weavers learned substantially on the job. While mechanization eliminated some tasks and the associated skills, it increased returns to skill on the remaining tasks. Technical change was task-biased, much as with computer technology. As more tasks were automated, weavers’ human capital increased substantially. Although technology increased the demand for skill like today, weavers’ wages eventually increased and inequality decreased, contrary to current …

The In Rem Forfeiture Of Copyright-Infringing Domain Names, Andrew Sellars

Faculty Scholarship

In the summer of 2010, the Immigration and Customs Enforcement Division of the Department of Homeland Security began "Operation In Our Sites," an enforcement sweep targeted towards websites allegedly dealing in counterfeit goods and copyright-infringing files. The operation targeted the websites by proceeding in rem against their respective domain names. For websites targeted for copyright infringement, ICE Agents used recently-expanded copyright forfeiture remedies passed under the 2008 PRO-IP Act, providing no adversarial hearing prior to the websites being removed, and only a probable cause standard of proof.

This Paper examines three specific harms resulting from Operation In Our Sites, and …

Negativing Invention, Jacob S. Sherkow

Articles & Chapters

Since 1952, the patent statute has forbidden courts from discriminating against, or “negativing,” inventions according to how they were made, be it “long toil and experimentation” or a “flash of genius.” Now, in addressing whether an invention is “obvious,” courts must only examine whether the invention was obvious according to the arts pertinent to that invention — the “analogous” rather than “nonanalogous” arts. This article shows that this dichotomy has actually promoted method-of-invention discrimination in patent law because the subjectivity of the analogous art inquiry has increasingly “analogized” wide fields of prior art as technology has progressed. This, in turn, …

Disentangling Administrative Searches, Eve Brensike Primus

Articles

Everyone who has been screened at an international border, scanned by an airport metal detector, or drug tested for public employment has been subjected to an administrative search. Since September 11th, the government has increasingly invoked the administrative search exception to justify more checkpoints, unprecedented subway searches, and extensive wiretaps. As science and technology advance, the frequency and scope of administrative searches will only expand. Formulating the boundaries and requirements of administrative search doctrine is therefore a matter of great importance. Yet the rules governing administrative searches are notoriously unclear. This Article seeks to refocus attention on administrative searches and …

Open Robotics, M. Ryan Calo

Articles

Robotics is poised to be the next transformative technology. Robots are widely used in manufacturing, warfare, and disaster response, and the market for personal robotics is exploding. Worldwide sales of home robots—such as iRobot’s popular robotic vacuum cleaner—are in the millions. In fact, Honda has predicted that by the year 2020, it will sell as many robots as it does cars. Microsoft founder Bill Gates believes that the robotics industry is in the same place today as the personal computer (“PC”) business was in the 1970s, a belief that is significant given that there are now well over one billion …

Wisdom Of The Ages Or Deadhand Control - Patentable Subject Matter For Diagnostic Methods After In Re Bilski, Rebecca S. Eisenberg

Journal of Law, Technology, & the Internet

No abstract provided.

Internet Access Rights: A Brief History And Intellectual Origins, Jonathon Penney

Articles, Book Chapters, & Popular Press

If there is anything we have learned from recent protest movements around the world, and the heavy-handed government efforts to block, censor, suspend, and manipulate Internet connectivity, it is that access to the Internet, and its content, is anything but certain, especially when governments feel threatened. Despite these hard truths, the notion that people have a "right" to Internet access gained high-profile international recognition last year. In a report to the United Nations General Assembly in early 2011, Frank La Rue, the UN Special Rapporteur on Freedom of Expression, held that Internet access should be recognized as a "human right". …

Is Internet Exceptionalism Dead?, Tim Wu

Faculty Scholarship

Is there such a thing as Internet exceptionalism? If so, just what is the Internet an exception to? It may appear technical, but this is actually one of the big questions of our generation, for the Internet has shaped the United States and the world over the last twenty years in ways people still struggle to understand. The question is not merely academic. The greatest Internet firms can be succinctly defined as those that have best understood what makes the Internet different.

Technology & Torts: A Theory Of Memory Costs, Nondurable Precautions And Interference Effects, Ben Depoorter

Ben Depoorter

This Article examines the influence of nondurable precaution technologies on the expansion of tort awards. We provide four contributions to the literature. First, we present a general, formal model on durable and non-durable precaution technology that focuses on memory costs. Second, because liability exposure creates interference, we argue that tort law perpetuates the expansion of awards. Third, because plaintiffs do not consider the social costs of interference effects, private litigation induces socially excessive suits. Fourth, while new harm-reducing technologies likely increase accident rates, such technologies also raise the ratio of trial costs to harm, leaving undetermined the overall effect of …

Cyberclinics: Law Schools, Technology And Justice, Ronald W. Staudt

Ronald W Staudt

No abstract provided.

Requirements Of A Valid Islamic Marriage Vis-À-Vis Requirements Of A Valid Customary Marriage In Nigeria, Olanike Sekinat Odewale Mrs

Olanike Sekinat Adelakun

Somebody's Watching Me: Protecting Patient Privacy In De-Identified Prescription Health Information, Christopher R. Smith

Christopher R Smith

Increasingly, legal scholars, state legislatures and the federal courts are examining patient privacy concerns that arise in the context of the dissemination, distribution and use of patient prescription information. However, less attention has been paid to the sharing of de-identified or encrypted patient prescription information versus identifiable patient prescription information. Though many patients may not realize it, identifiable, de-identified and encrypted patient prescription information is being used for a host of purposes other than insurance reimbursement and treatment, most notably for pharmaceutical marketing purposes. Existing state and federal laws and ethical guidelines provide some protection for the privacy of patient …

The Eavesdropping Employer: A Twenty-First Century Framework For Employee Monitoring, Corey A. Ciocchetti

Corey A Ciocchetti

The twenty-first century continues to usher in new and increasingly-powerful technology. This technology is both a blessing and a curse in the employment arena. Sophisticated monitoring software and hardware allow businesses to conduct basic business transactions, avoid liability, conduct investigations and, ultimately, achieve success in a competitive global environment. Employees can also benefit when monitoring provides immediate feedback, keeps the workforce efficient and focused and discourages unethical/illegal behavior. The same technology, however, allows employers to monitor every detail of their employees’ actions, communications and whereabouts both inside and outside the workplace. As more and more employers conduct some form of …

Through The Legal Looking Glass: Exploring The Concept Of Corporate Legal Strategy, Antoine Masson, Mary J. Shariff

Mary J. Shariff

This paper sets out to examine various forms of legal strategies that have thus far been identified in the areas of litigation, corporate management and competition. The goal here is to identify and classify emerging approaches to legal strategy discussion in order to assist in the overall study of legal strategy theory as well as to assist in the development of an integrated and accurate definition of legal strategy from a law perspective.

The Problem With Intellectual Property Rights: Subject Matter Expansion, Andrew Beckerman Rodau

Andrew Beckerman Rodau

This article examines the expansion of the subject matter that can be protected under intellectual property law. Intellectual property law has developed legal rules that carefully balance competing interests. The goal has long been to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and doctrines that minimize the effect on the commercial marketplace and minimize interference with the free flow of ideas generally. The expansive view of subject matter protectable via intellectual property law has erased the clear delineation between patent, copyright, and trademark law. This has led to overprotection …

Governing Nanotechnology For Solar Fuels: Towards A Jurisprudence Of Global Artificial Photosynthesis, Thomas A. Faunce

Thomas A Faunce

The carbon-based fossil fuels (chiefly oil, coal, and natural gas) implicated in anthropogenic climate change are sequestered outcomes of millions of years of natural photosynthesis. Many emerging areas of nanotechnology research are focusing on artificial photosynthesis as a long-term planetary renewable energy and carbon management option – by providing an alternative form of energy to both fossil fuels and biofuels and as a means of stabilising atmospheric CO2. A macroscience Global Artificial Photosynthesis (GAP) Project, by allowing researchers to refine and enhance the process of photosynthesis, has the potential to become a valuable adjunct to or even supplant other bioenergy …

Artificial Photosynthesis: Feeding And Fuelling The Future, Thomas A. Faunce

Thomas A Faunce

Large research teams in many nations are using nanotechnology to actively redesign photosynthetic components such as light capture antennae, artificial reaction centre proteins, organic polymers and inorganic catalysts. A major aim was to achieve low cost, localised, off-the electricity grid use of sunlight to split water and achieve hydrogen for fuel cells or compression and hyper-cooling to form a liquid fuel that when burnt produces fresh water. The first international conference dedicated to creating a Global Artificial Photosynthesis (GAP) project was held in Australia at Lord Howe Island on 14-18 August 2011. As well as having endorsement from the UNESCO …

Global Artificial Photosynthesis: A Scientific And Legal Introduction., Thomas A. Faunce

Thomas A Faunce

With the global human population set to exceed 10 billion by 2050, its collective energy consumption to rise from 400 to over 500 EJ/yr and with the natural environment under increasing pressure from these sources as well as from anthropogenic climate change, political solutions such as the creation of an efficient carbon price and trading scheme may arrive too late. In this context, the scientific community is exploring technological remedies. Central to these options is artificial photosynthesis – the creation, particularly through nanotechnology, of devices capable to doing what plants have done for millions of years – transforming sunlight, water …

Will International Trade Law Promote Or Inhibit Global Artificial Photosynthesis, Thomas A. Faunce

Thomas A Faunce

Artificial photosynthesis (AP) is an area of well-advanced research involving large international groups at the cutting edge of synthetic biology and nanotechnology. In simple terms it offers to produce a cheap source of hydrogen for fuel through using sunlight to split water, as well as making basic starches by a process involving absorption of carbon dioxide via the enzyme RuBisCO. As the proliferating numbers of university-based research teams working in this area begin to combine, there will be a natural escalation of the expected time for a global roll-out of AP domestic and international devices. Policy attention will then turns …