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The Doctrine Of Equivalents And Interchangeability In The United States, Taiwan And China, Tien-Pang Chang, Li-Dar Wang, Shang-Jyh Liu Nov 2013

The Doctrine Of Equivalents And Interchangeability In The United States, Taiwan And China, Tien-Pang Chang, Li-Dar Wang, Shang-Jyh Liu

Richard Li-dar Wang

The United States, Taiwan and China have similar systems for determining patent infringement under the doctrine of equivalents. The courts in these countries apply the test of interchangeability in finding infringement under the doctrine of equivalents. However, the courts in the United States, Taiwan and China evaluate interchangeability in different ways. In the United States, the interchangeability is one important factor for determining equivalent infringement in addition to the function, way and result factors in the triple identity test. Nevertheless, the court does not necessarily have to consider interchangeability and can’t rely only on the interchangeability factor to find equivalent …


The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn Oct 2013

The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn

Robert Bloom

In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration’s operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection …


Doctors, Patients, And Pills--A System Popping Under Too Much Physician Discretion? A Law-Policy Prescription To Make Drug Approval More Meaningful In The Delivery Of Health Care, Michael J. Malinowski Oct 2013

Doctors, Patients, And Pills--A System Popping Under Too Much Physician Discretion? A Law-Policy Prescription To Make Drug Approval More Meaningful In The Delivery Of Health Care, Michael J. Malinowski

Michael J. Malinowski

This article challenges the scope of physician discretion to engage in off-label use of prescription drugs. The discretion to prescribe dimensions beyond the clinical research that puts new drugs on pharmacy shelves has been shaped by two historic influences: a legacy of physician paternalism, solidarity, autonomy, and self-determination that predates the contemporary commercialization of medicine by more than half a century, and regulatory necessity due to the limits of science and innate crudeness of pharmaceuticals prior to the genomics revolution (drug development and delivery based upon genetic expression). Although both factors have changed immensely, the standard for drug approval has …


"Do-Not-Track" As Contract, Joshua A.T. Fairfield Oct 2013

"Do-Not-Track" As Contract, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Support for enforcement of a do-not-track option in browsers has been gathering steam. Such an option presents a simple method for consumers to protect their privacy. The problem is how to enforce this choice. The Federal Trade Commission (FTC) could enforce a do-not-track option in a consumer browser under its section 5 powers. The FTC, however, currently appears to lack the political will to do so. Moreover, the FTC cannot follow the model of its successful do-not-call list since the majority of Internet service providers (ISPs) assign Internet addresses dynamically — telephone numbers do not change, whereas Internet protocol (IP) …


The Magic Circle, Joshua A.T. Fairfield Oct 2013

The Magic Circle, Joshua A.T. Fairfield

Joshua A.T. Fairfield

This Article examines the concept of the "magic circle," the metaphorical barrier that supposedly excludes real-world law from virtual worlds. The Article argues that this metaphor fails because there is no "real" world as distinguished from "virtual" worlds. Instead of a magic circle, this Article advocates a rule of consent: actions in a virtual world give rise to legal liability if they exceed the scope of consent given by other players within the game. The Article concludes that although real-world law cannot reasonably be excluded from virtual worlds, game gods and players can control the interface between law and virtual …


The End Of The (Virtual) World, Joshua A.T. Fairfield Sep 2013

The End Of The (Virtual) World, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Virtual worlds have been the next big thing for some time now. In 2008, more than 100 public virtual worlds received venture capital funding - a significant increase over previous years. Yet virtual worlds have been going bankrupt faster than ever, including several high-profile firms and worlds. Every technology goes through a shakedown phase, and for virtual worlds the current recession has served as a catalyst for a downturn that, although not unexpected, is nevertheless startling in both numbers and rapidity. This article examines the intimate relationship between how a virtual world begins life and how it ends. The amount …


Navigating Through The Fog Of Cloud Computing Contracts, T. Noble Foster Sep 2013

Navigating Through The Fog Of Cloud Computing Contracts, T. Noble Foster

T. Noble Foster

This paper explores legal issues associated with cloud computing, provides analysis and commentary on typical clauses found in contracts offered by well-known cloud service providers, and identifies strategies to mitigate the risk of exposure to cloud-based legal claims in the critical areas of data security, privacy, and confidentiality. While current research offers numerous case studies, viewpoints, and technical descriptions of cloud processes, our research provides a close examination of the language used in cloud contract terms. Analysis of these contract terms supports the finding that most standard cloud computing contracts are unevenly balanced in favor of the cloud service provider. …


Do-Not-Track As Default, Joshua A.T. Fairfield Sep 2013

Do-Not-Track As Default, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Do-Not-Track is a developing online legal and technological standard that permits consumers to express their desire not to be tracked by online advertisers. Do-Not-Track has the ability to change the relationship between consumers and advertisers in the information market. Everything will depend on implementation. The most effective way to allow users to achieve their privacy preferences is to implement Do-Not-Track as a default feature. The World Wide Web Consortium’s (W3C) standard setting body for Do-Not-Track has, however, endorsed a corrosive standard in its Tracking Preferences Expression (TPE) draft. This standard requires consumers to set their privacy preference by hand. This …


Mixed Reality: How The Laws Of Virtual Worlds Govern Everyday Life, Joshua A.T. Fairfield Sep 2013

Mixed Reality: How The Laws Of Virtual Worlds Govern Everyday Life, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Just as the Internet linked human knowledge through the simple mechanism of the hyperlink, now reality itself is being hyperlinked, indexed, and augmented with virtual experiences. Imagine being able to check the background of your next date through your cell phone, or experience a hidden world of trolls and goblins while you are out strolling in the park. This is the exploding technology of Mixed Reality, which augments real places, people, and things with rich virtual experiences. As virtual and real worlds converge, the law that governs virtual experiences will increasingly come to govern everyday life. The problem is that …


Avatar Experimentation: Human Subjects Research In Virtual Worlds, Joshua A.T. Fairfield Sep 2013

Avatar Experimentation: Human Subjects Research In Virtual Worlds, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Researchers love virtual worlds. They are drawn to virtual worlds because of the opportunity to study real populations and real behavior in shared simulated environments. The growing number of virtual worlds and population growth within virtual worlds has led to a sizeable increase in the number of human subjects experiments taking place in such worlds. Virtual world users care deeply about their avatars, their virtual property, their privacy, their relationships, their community, and their accounts. People within virtual worlds act much as they would in the physical world because the experience of the virtual world is “real” to them. The …


Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield Sep 2013

Cracks In The Foundation: The New Internet Regulation's Hidden Threat To Privacy And Commerce, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Scholarship to date has focused on the legal significance of the novelty of the Internet. This scholarship does not describe or predict actual Internet legislation. Instead of asking whether the Internet is so new as to merit new law, legislators and academics should re-evaluate the role of government in orchestrating collective action and change the relative weight of enforcement, deterrence, and incentives in Internet regulations. A perfect example of the need for this new approach is the recent CANSPAM Act of 2003, which was intended to protect personal privacy and legitimate businesses. However, the law threatens both of these interests, …


A Comprehensive Approach To Bridging The Gap Between Cyberbullying Rules And Regulations And The Protections Offered By The First Amendment For Off-Campus Student Speech, Vahagn Amirian Aug 2013

A Comprehensive Approach To Bridging The Gap Between Cyberbullying Rules And Regulations And The Protections Offered By The First Amendment For Off-Campus Student Speech, Vahagn Amirian

Vahagn Amirian

No abstract provided.


Finding Privacy In A Sea Of Social Media And Other E-Discovery, Allyson Haynes Stuart Aug 2013

Finding Privacy In A Sea Of Social Media And Other E-Discovery, Allyson Haynes Stuart

Allyson Haynes Stuart

This article looks at the case law governing discovery of social media, and finds several problems. First, many courts are improperly requiring a threshold showing that relevant information exists in public portions of the user’s social media account before allowing such discovery. Second, they allow overbroad discovery, often requiring a litigant to turn over its username and password to the other party. At the same time, parties are seeking such information directly from social media sites, attempting an end-run around the relevancy requirement and increasing motion practice. The article argues that, instead, social media discovery should be treated like other …


No Path But One: Law School Survival In An Age Of Disruptive Technology, Michele R. Pistone, John J. Hoeffner Jul 2013

No Path But One: Law School Survival In An Age Of Disruptive Technology, Michele R. Pistone, John J. Hoeffner

Michele R. Pistone

In the absence of a dramatic shift in their approach to legal education, law schools are approaching the last days of Rome, a time when decline cannot be reversed and only the precise date of the final fall is to be determined. The role of marauding Germanic tribes will be played by new legal education competition whose emergence is enabled by recent technological developments. The new competition will be highly flexible, unencumbered by expensive legacy costs and, because it will reside mainly online, so scalable that no traditional, place-based law school will be immune from its impact. There will be …


The Scientifically Trained Law Clerk: Legal And Ethical Considerations Of Relying On Extra-Record Technical Training Or Experience, Timothy Li May 2013

The Scientifically Trained Law Clerk: Legal And Ethical Considerations Of Relying On Extra-Record Technical Training Or Experience, Timothy Li

Timothy Li

Technically trained law clerks should be permitted to rely on extralegal scientific principles, but only if those principles are objectively verifiable and not subject to reasonable dispute—a standard that matches Federal Rule of Evidence 201. By contrast, law clerks should not rely on extralegal scientific principles that are not objectively verifiable or beyond reasonable dispute. Technical training is particularly useful for law clerks at the Federal Circuit Court of Appeals because of its focus on patent cases. Technically trained clerks could also be useful at the trial level because the district courts recently began a ten-year Patent Pilot Program.


Patents For Chemicals, Pharmaceuticals And Biotechnology: Fundamentals Of Global Law, Practice And Strategy By Philip W. Grubb, Michael J. Malinowski May 2013

Patents For Chemicals, Pharmaceuticals And Biotechnology: Fundamentals Of Global Law, Practice And Strategy By Philip W. Grubb, Michael J. Malinowski

Michael J. Malinowski

No abstract provided.


A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski May 2013

A Discourse On The Public Nature Of Research In Contemporary Life Science: A Law-Policy Proposal To Promote The Public Nature Of Science In An Era Of Academia-Industry Integration, Michael J. Malinowski

Michael J. Malinowski

This article addresses the impact of integration of academia, industry, and government on the public nature of research. The article concludes that, while the integration has benefited science immensely, regulatory measures should be taken to restore the public nature of research in an age of integration.


Dealing With The Realities Of Race And Ethnicity: A Bioethics-Centered Argument In Favor Of Race-Based Genetics Research, Michael J. Malinowski May 2013

Dealing With The Realities Of Race And Ethnicity: A Bioethics-Centered Argument In Favor Of Race-Based Genetics Research, Michael J. Malinowski

Michael J. Malinowski

No abstract provided.


United States Regulation Of Stem Cell Research: Recasting Government's Role And Questions To Be Resolved, Owen C. B. Hughes, Alan L. Jakimo, Michael J. Malinowski May 2013

United States Regulation Of Stem Cell Research: Recasting Government's Role And Questions To Be Resolved, Owen C. B. Hughes, Alan L. Jakimo, Michael J. Malinowski

Michael J. Malinowski

This article directly addresses the stem cell controversy, but also the broader history and norms regarding the roles of federal and state government in U.S. science research funding.


Patent Protection Of Pharmacologically Active Metabolites: Theoretical And Technological Analysis On The Jurisprudence Of Four Regions, Richard Li-Dar Wang, Pei-Chen Huang Mar 2013

Patent Protection Of Pharmacologically Active Metabolites: Theoretical And Technological Analysis On The Jurisprudence Of Four Regions, Richard Li-Dar Wang, Pei-Chen Huang

Richard Li-dar Wang

Active metabolite patents have been instrumental for brandname pharmaceutical companies to maintain their exclusivity even after the drug patents expire. This strategy obstructs market entry of generic medicine and reduces affordable drugs. The authors review jurisprudence from the United States, Europe, India, and Taiwan in search for practical solutions to confront this problem. Given the unique pharmacological value that active metabolites may possess, patent protection for those purified or synthesized in vitro should be preserved, but for those produced by metabolism should be declined. Except India, most countries under investigation comport with this dichotomy. Their jurisprudence may be subsumed into …


Jus Sanguinis: Determining Parentage For Assisted Reproduction Children Born Overseas, Kristine Knaplund Feb 2013

Jus Sanguinis: Determining Parentage For Assisted Reproduction Children Born Overseas, Kristine Knaplund

Kristine Knaplund

Jus Sanguinis: Determining Citizenship for Assisted Reproduction Children Born Overseas Professor Kristine S. Knaplund Abstract The United States has long followed the English common law view that citizenship can be attained at birth in two ways: by being born in the U.S. (jus soli), or by being born abroad as the child of a U.S. citizen (jus sanguinis). The first, jus soli, is now part of the 14th amendment to the U.S. Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.” …


Jus Sanguinis: Determining Parentage For Assisted Reproduction Children Born Overseas, Kristine Knaplund Feb 2013

Jus Sanguinis: Determining Parentage For Assisted Reproduction Children Born Overseas, Kristine Knaplund

Kristine Knaplund

Jus Sanguinis: Determining Citizenship for Assisted Reproduction Children Born Overseas Professor Kristine S. Knaplund Abstract The United States has long followed the English common law view that citizenship can be attained at birth in two ways: by being born in the U.S. (jus soli), or by being born abroad as the child of a U.S. citizen (jus sanguinis). The first, jus soli, is now part of the 14th amendment to the U.S. Constitution: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.” …


A Case For The Public Domain, Clark Asay Feb 2013

A Case For The Public Domain, Clark Asay

Clark Asay

Over the past several decades open license movements have proven highly successful in the software and content worlds. Such movements rely in part on the belief that greater freedom of use triggers innovative activity that is superior to what a restrictive IP approach produces. Ironically, such open license movements also rely on IP rights to promote their vision of freedom and openness. They do so through IP licenses that, while granting significant freedoms, also impose certain conditions on users such as the “copyleft” requirement in the software world. Such movements rely on this IP-based approach due to fears that, without …


Defying Dna: Rethinking The Role Of The Jury In An Age Of Scientific Proof Of Innocence, Andrea L. Roth Feb 2013

Defying Dna: Rethinking The Role Of The Jury In An Age Of Scientific Proof Of Innocence, Andrea L. Roth

Andrea L Roth

In 1946, public outrage erupted after a jury ordered Charlie Chaplin to support a child who, according to apparently definitive blood tests, was not his. Half a century later, juries have again defied apparently definitive evidence of innocence, finding criminal defendants guilty based on a confession or eyewitness notwithstanding exculpatory DNA test results. One might expect judges in such cases to direct an acquittal, on grounds that the evidence is legally insufficient because no rational juror could find guilt beyond a reasonable doubt. Yet few if any do. Instead, courts defer to juries when they form an actual belief in …


Patents And The University, Peter Lee Feb 2013

Patents And The University, Peter Lee

Peter Lee

This Article advances two novel claims about the internalization of academic science within patent law and the concomitant evolution of “academic exceptionalism.” Historically, relations between patent law and the university were characterized by mutual exclusion, based in part on normative conflicts between academia and exclusive rights. These normative distinctions informed “academic exceptionalism”—the notion that the patent system should exclude the fruits of academic science or treat academic entities differently than other actors—in patent doctrine. As universities began to embrace patents, however, academic science has become internalized within the traditional commercial narrative of patent protection. Contemporary courts frequently invoke universities’ commercial …


Online Social Media And The End Of The Employment-At-Will Doctrine, Robert Sprague, Abigail E. Fournier Dec 2012

Online Social Media And The End Of The Employment-At-Will Doctrine, Robert Sprague, Abigail E. Fournier

Robert Sprague

This article addresses the intersection of Section 7 protected concerted activities under the National Labor Relations Act and the common law employment-at-will doctrine. Employers are under pressure to ensure their online social media policies do not unlawfully chill protected Section 7 activities, freeing employees to discuss working conditions with coworkers through online social media platforms such as Facebook, Twitter, and LinkedIn. This article argues that once coworkers engage online in work-related conversations, for all practical purposes they cease to be at-will employees. Under the Wright Line standard, if an employee is fired or disciplined shortly after engaging in protected concerted …


Access To Justice And Technology Clinics: A 4% Solution (With Andrew P. Medeiros) (Symposium), Ronald W. Staudt Dec 2012

Access To Justice And Technology Clinics: A 4% Solution (With Andrew P. Medeiros) (Symposium), Ronald W. Staudt

Ronald W Staudt

No abstract provided.


Introduction, Justice, Lawyering And Legal Education In The Digital Age (Symposium Editor With M. Lauritsen), Ronald W. Staudt Dec 2012

Introduction, Justice, Lawyering And Legal Education In The Digital Age (Symposium Editor With M. Lauritsen), Ronald W. Staudt

Ronald W Staudt

No abstract provided.


The Four Factor Test, Susan Freiwald Dec 2012

The Four Factor Test, Susan Freiwald

Susan Freiwald

No abstract provided.


Can't Escape From The Memory: Social Media And Public Sector Labor Law, William A. Herbert Dec 2012

Can't Escape From The Memory: Social Media And Public Sector Labor Law, William A. Herbert

William A. Herbert

The Web 2.0 communicative revolution is impacting many fields of law, including labor and employment law. This article focuses upon the application and impact of statutory and constitutional doctrines on the use of social media in public employment in the United States. As part of that analysis, it will compare and contrast developments under the National Labor Relations Act, state collective bargaining and tenure laws and the First Amendment concerning social media. Through this comparative analysis, the article will highlight the distinctions and similarities of public sector labor law and their implications for the future.