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Articles 1 - 30 of 70
Full-Text Articles in Law
A Historical Note On The Assignment Of Pesticide Common Names, Jorge L. Contreras
A Historical Note On The Assignment Of Pesticide Common Names, Jorge L. Contreras
Utah Law Faculty Scholarship
Thousands of pesticides, herbicides, and related chemical products are used today to control disease-bearing insect populations and enable large-scale agricultural production that feeds much of the world. This short note traces the history of one small but important aspect of this industry—the assignment of common names to pesticides and related products. The little-known history of pesticide common names is illustrative of a few important points. First, it demonstrates the trend exhibited in many fields for the development of standards to migrate from a governmental agency to a US-based standards organization to an international standards organization. Second, it evidences the concern …
No License, No Problem – Is Qualcomm’S Ninth Circuit Antitrust Victory A Patent Exhaustion Defeat?, Jorge L. Contreras, Jorge L. Contreras
No License, No Problem – Is Qualcomm’S Ninth Circuit Antitrust Victory A Patent Exhaustion Defeat?, Jorge L. Contreras, Jorge L. Contreras
Utah Law Faculty Scholarship
The Ninth Circuit’s recent decision in FTC v. Qualcomm (9th Cir., Aug. 11, 2020) is generally viewed as a resounding victory for Qualcomm. But in praising Qualcomm’s egalitarian approach toward rival chip makers, the Ninth Circuit points out that instead of granting licenses to these rivals, Qualcomm merely “declines to enforce its patents” against them “even though they practice Qualcomm’s patents”. As such, the Ninth Circuit states that Qualcomm’s “policy toward rival chipmakers could be characterized as ‘no license, no problem’”. Yet, from the standpoint of patent exhaustion, this approach could actually be a very big problem, not only for …
Family Law By The Numbers: The Story That Casebooks Tell, Laura T. Kessler
Family Law By The Numbers: The Story That Casebooks Tell, Laura T. Kessler
Utah Law Faculty Scholarship
This Article presents the findings of a content analysis of 86 family law casebooks published in the United States from 1960 to 2019. Its purpose is to critically assess the discipline of family law with the aim of informing our understandings of family law’s history and exposing its ideological foundations and consequences. Although legal thinkers have written several intellectual histories of family law, this is the first quantitative look at the field.
The study finds that coverage of marriage and divorce in family law casebooks has decreased by almost half relative to other topics since the 1960s. In contrast, pages …
Legal Terms Of Use And Public Genealogy Websites, Jorge L. Contreras, Kyle Schultz, Craig Teerlink, Tim Maness, Laurence Meyer, Lisa Cannon-Albright
Legal Terms Of Use And Public Genealogy Websites, Jorge L. Contreras, Kyle Schultz, Craig Teerlink, Tim Maness, Laurence Meyer, Lisa Cannon-Albright
Utah Law Faculty Scholarship
Public genealogy websites, to which individuals upload family history, genealogy, and sometimes individual genetic data, have been used in an increasing number of public health, epidemiological, and genetic studies. Yet there is little awareness among researchers of the legal rules that govern the use of these online resources. We analyzed the online Terms of Use (TOU) applicable to 17 popular genealogy websites and found that none of them expressly permit scientific research, while at least 13 contain restrictions that may limit or prohibit scientific research using data obtained from those sites. In order to ensure that researchers who use genealogy …
The New United Nations High Seas Treaty: A Primer, Robin Kundis Craig
The New United Nations High Seas Treaty: A Primer, Robin Kundis Craig
Utah Law Faculty Scholarship
This short Insights piece provides an introductory overview to the United Nations' developing Biodiversity Beyond National Jurisdiction (BBNJ) treaty, which would add a Protocol to the United Nations Convention on the Law of the Sea to allow for biodiversity protections (marine protected areas) in the high seas.
Nepa At 50: An Empirical Analysis Of Nepa In The Courts, John C. Ruple, Heather Tanana
Nepa At 50: An Empirical Analysis Of Nepa In The Courts, John C. Ruple, Heather Tanana
Utah Law Faculty Scholarship
The National Environmental Policy Act (NEPA), the groundbreaking 1970 statute that requires federal agencies to take a “hard look” at the environmental impacts of their actions, turned 50 this year. In this anniversary year, and with NEPA revision efforts a hot topic in environmental law, we begin by quantifying the burden imposed by NEPA compliance. We then look back on approximately 1,500 court decisions to quantify the rate at which NEPA decisions are challenged, assess how those cases are resolved, and compare NEPA cases to other environmental litigation. We then discuss efforts to “streamline” NEPA and why we believe those …
Pledging Intellectual Property For Covid-19, Jorge L. Contreras
Pledging Intellectual Property For Covid-19, Jorge L. Contreras
Utah Law Faculty Scholarship
COVID-19 differs from other recent public health crises with respect to its sudden onset, its rapid spread, the lack of any known vaccine or cure and resulting shortages of critical medical equipment. The convergence of these factors has prompted both governments and IPR holders around the world to seek ways to increase the availability of IPR necessary to combat the pandemic. Governmental compulsory licensing, IPR pools and voluntary IPR pledges have all been used in the past, though in situations that differ in important respects from the COVID-19 pandemic. Each is designed to result, to a greater or lesser degree, …
Will China's New Anti-Suit Injunctions Shift The Balance Of Global Frand Litigation?, Jorge L. Contreras
Will China's New Anti-Suit Injunctions Shift The Balance Of Global Frand Litigation?, Jorge L. Contreras
Utah Law Faculty Scholarship
By issuing anti-suit injunctions (ASIs) in Conversant v. Huawei and InterDigital v. Xiaomi in late 2020, Chinese courts have signaled a new willingness to vie for jurisdictional authority in global battles over standard-essential patents and FRAND licensing. While the Supreme People’s Court in Conversant largely followed the pattern of US and UK courts that have issued ASIs in similar cases, the ruling of the Wuhan court in InterDigital is far broader in two major respects. First, its geographic scope is not limited to the country in which InterDigital sought injunctive relief (India), but extends to all jurisdictions in the world. …
Financial Terms In License Agreements, Jorge L. Contreras
Financial Terms In License Agreements, Jorge L. Contreras
Utah Law Faculty Scholarship
This chapter in the forthcoming casebook Intellectual Property Licensing and Transactions: Theory and Practice (2020, forthcoming), discusses the financial terms of IP licensing agreements including fixed payments, running royalties, sublicensing income, milestone payments, equity compensation and cost reimbursement, as well as most-favored and audit clauses. Numerous areas of recent controversy are addressed including the establishment of royalty rates through the entire market value rule (EMVR) versus the smallest salable patent practicing unit (SSPPU) rule, royalties for bundled rights, rules of thumb discredited by the courts, royalty escalation clauses and more. Examples are drawn primarily from biotechnology, high-tech and copyright licensing …
First Sale And Exhaustion, Jorge L. Contreras
First Sale And Exhaustion, Jorge L. Contreras
Utah Law Faculty Scholarship
This chapter in the forthcoming case book "Intellectual Property Licensing and Transactions: Theory and Practice" addresses issues of first sale and exhaustion for licensing transactions involving patents, copyrights and trademarks. Among the issues considered are licensing versus sale of software, patent exhaustion, post-sale restrictions, international exhaustion and gray market imports.
U.S. Federal Genomic Data Release And Access Policies, Jorge L. Contreras
U.S. Federal Genomic Data Release And Access Policies, Jorge L. Contreras
Utah Law Faculty Scholarship
Researchers today have access to a vast aggregation of human and nonhuman genomic data, largely on an open access basis. According to the Joint Genome Institute’s Genomes OnLine Database (GOLD), data from more than 40,000 sequencing projects around the world, representing more than 375,000 different organisms, were publicly available to researchers as of July 2020. The availability of this tremendous public resource is due, in large part, to the data release policies developed a quarter century ago, toward the beginning of the Human Genome Project (HGP), which have been carried forward, in modified form, to the present. These policies impose …
Antitrust And Competition Issues, Jorge L. Contreras
Antitrust And Competition Issues, Jorge L. Contreras
Utah Law Faculty Scholarship
This Chapter offers a broad overview of the impact of U.S. antitrust laws on IP licensing and transactions. A basic understanding of antitrust law is critical to the analysis of IP licensing arrangements, whether concerning patents, copyrights or trademarks. This chapter offers a summary of the antitrust doctrines that arise frequently in IP and technology-focused transactions — price fixing and market allocation, resale price maintenance, tying, monopolization, refusals to deal, standard setting and pay-for-delay settlements, with coverage of the major cases and enforcement agency guidance. Antitrust issues also play a role in the analysis of joint ventures, which are discussed …
Circumventing The Crime Victims' Rights Act: A Critical Analysis Of The Eleventh Circuit's Decision Upholding Jeffrey Epstein's Secret Non-Prosecution Agreement, Paul Cassell, Jordan Peck, Bradley Edwards
Circumventing The Crime Victims' Rights Act: A Critical Analysis Of The Eleventh Circuit's Decision Upholding Jeffrey Epstein's Secret Non-Prosecution Agreement, Paul Cassell, Jordan Peck, Bradley Edwards
Utah Law Faculty Scholarship
Whether crime victims have rights before formal criminal charges are filed has recently come to the fore in one of the most publicized criminal cases in recent memory. For more than twelve years, victims of Jeffrey Epstein’s sex trafficking organization have attempted to invalidate a non-prosecution agreement (NPA) entered between Epstein and federal prosecutors. The victims have argued that because prosecutors deliberately concealed the NPA from them, the prosecutors violated the federal Crime Victim’s Rights Act (CVRA). On April 14, 2020, a divided panel of the Eleventh Circuit entered a surprising ruling, rejecting the victims’ argument. The panel refused to …
Intellectual Property Rights And The Rule Of Law, Jorge L. Contreras
Intellectual Property Rights And The Rule Of Law, Jorge L. Contreras
Utah Law Faculty Scholarship
The subject of this conference is the “Rule of Law”, so I would like to address my opening comments to a trending narrative that casts opposition to the demands of patent holders as a form of lawlessness. This narrative specifically takes aim at a practice that has been termed “efficient infringement” – the idea that a firm may rationally decide to infringe patents either because it will be too costly for the patent holder to enforce its rights in court, or because it is happy to take its chances in court, where an asserted patent may be invalidated and where …
Inescapable Surveillance, Matthew Tokson
Inescapable Surveillance, Matthew Tokson
Utah Law Faculty Scholarship
Until recently, Supreme Court precedent dictated that a person waives their Fourth Amendment rights in information they disclose to another party. The Court reshaped this doctrine in Carpenter v. United States, establishing that the Fourth Amendment protects cell phone location data even though it is revealed to others. The Court emphasized that consumers had little choice but to disclose their data, because cell phone use is virtually inescapable in modern society.
In the wake of Carpenter, many scholars and lower courts have endorsed inescapability as an important factor for determining Fourth Amendment rights. Under this approach, surveillance that people cannot …
The Tribal Right To Exclude Non-Tribal Members From Indian-Owned Lands, Alexander Tallchief Skibine
The Tribal Right To Exclude Non-Tribal Members From Indian-Owned Lands, Alexander Tallchief Skibine
Utah Law Faculty Scholarship
In 1981, the Supreme Court issued its decision in Montana v. United States, severely restricting the ability of Indian Tribes to assume civil regulatory and adjudicatory jurisdiction over non-tribal members for activities taking place on non-Indian lands within Indian reservations. The Court in Montana stated that “it could readily agree” with the Court of Appeals’ holding that the tribe could regulate the conduct of non-member on tribal lands. Yet, twenty years later, the Court issued its opinion in Nevada v. Hicks holding that in certain circumstances, the jurisdiction of Indian tribes could also be limited even if the activities of …
Sometimes Frand Does Mean License-To-All, Jorge L. Contreras
Sometimes Frand Does Mean License-To-All, Jorge L. Contreras
Utah Law Faculty Scholarship
FRAND commitments are creations of written policy documents and contract law. Accordingly, the existence of a “License to All” obligation under a FRAND commitment must arise from the relevant policy language. Numerous SDO policies expressly impose “License to All” requirements. Some SDO policies are ambiguous with respect to this requirement and such ambiguities should be resolved based on an examination of extrinsic evidence including the intentions of policy drafters, the shared understandings of SDO participants, and the historical precedents for such policies. In many cases, an examination of these factors should lead to the conclusion that “License to All” is, …
Prosecutors And Mass Incarceration, Shima Baughman
Prosecutors And Mass Incarceration, Shima Baughman
Utah Law Faculty Scholarship
It has long been postulated that America’s mass incarceration phenomenon is driven by increased drug arrests, draconian sentencing, and the growth of a prison industry. Yet among the major players—legislators, judges, police, and prosecutors—one of these is shrouded in mystery. While laws on the books, judicial sentencing, and police arrests are all public and transparent, prosecutorial charging decisions are made behind closed doors with little oversight or public accountability. Indeed, without notice by commentators, during the last ten years or more, crime has fallen, and police have cut arrests accordingly, but prosecutors have actually increased the ratio of criminal court …
Intellectual Property Pools And Aggregation, Jorge L. Contreras
Intellectual Property Pools And Aggregation, Jorge L. Contreras
Utah Law Faculty Scholarship
This chapter in the forthcoming case book "Intellectual Property Licensing and Transactions: Theory and Practice" covers IP pooling, with an emphasis on patents. It begins with a discussion of the theoretical benefit of pooling, including efficiency gains and the avoidance of blocking positions, thickets and anti-commons. It then addresses antitrust analysis of pooling transactions from Standard Oil (Indiana) v. United States (U.S. 1931) through the 2017 DOJ-FTC Antitrust Guidelines. The chapter then turns to pools created to facilitate standard-setting, including the MPEG-2 and 3GPP Pools, and discusses the concept of complementarity and essentiality of pooled assets. It concludes with brief …
Explaining The Recent Homicide Spikes In U.S. Cities: The 'Minneapolis Effect' And The Decline In Proactive Policing, Paul Cassell
Explaining The Recent Homicide Spikes In U.S. Cities: The 'Minneapolis Effect' And The Decline In Proactive Policing, Paul Cassell
Utah Law Faculty Scholarship
Recently major cities across the country have suffered dramatic spikes in homicides. These spikes are remarkably large, suddenly appearing, and widespread. At this rate, 2020 will easily be the deadliest year in America for gun-related homicides since at least 1999, while most other major crime categories are trending stable or slightly downward.
This article attempts to explain why so many cities have seen extraordinary increases in murder during the summer of 2020. A close analysis of the emerging crime patterns suggests that American cities may be witnessing significant declines in some forms of policing, which in turn is producing the …
It’S Anti-Suit Injunctions All The Way Down – The Strange New Realities Of International Litigation Over Standards-Essential Patents, Jorge L. Contreras
It’S Anti-Suit Injunctions All The Way Down – The Strange New Realities Of International Litigation Over Standards-Essential Patents, Jorge L. Contreras
Utah Law Faculty Scholarship
Today’s markets for technology products — from smartphones to home appliances to automobiles — are inherently global. This is especially true of products that embody technical standards — protocols like 5G, Wi-Fi, Bluetooth and USB that are covered by hundreds, thousands, or tens of thousands of patents (so-called “standards-essential patents” or “SEPs”). Given the global scope and size of these markets, it is not surprising that patent litigation over standardized products is often conducted on a global scale. This article looks at an increasingly important aspect of these global standards wars: the ability of a court in one jurisdiction to …
Expanding Access To Patents For Covid-19, Jorge L. Contreras
Expanding Access To Patents For Covid-19, Jorge L. Contreras
Utah Law Faculty Scholarship
Two competing and linked sets of goals must be addressed when considering patent policy in response to a public health emergency. First is the allocation of existing resources among potential users (hospitals, patients, etc.); second is the creation of new technologies over time (innovation). Patents provide financial incentives to develop new technologies. Yet shortages of patented products often plague crisis response. In the case of COVID-19, allocative goals, particularly satisfying demand for patented medical products (e.g., vaccines, ventilators, PPE, and test kits), may be achieved through governmental interventions such as march-in and governmental use rights (compulsory licensing). But in cases …
Association For Molecular Pathology V. Myriad Genetics: A Critical Reassessment, Jorge L. Contreras
Association For Molecular Pathology V. Myriad Genetics: A Critical Reassessment, Jorge L. Contreras
Utah Law Faculty Scholarship
The Supreme Court’s 2013 decision in Association for Molecular Pathology v. Myriad Genetics is part of the Court’s recent quartet of patent eligibility decisions, which also includes Bilski v. Kappos, Mayo v. Prometheus and Alice v. CLS Bank. Each of these decisions has significantly shaped the contours of patent eligibility under Section 101 of the Patent Act in ways that have been both applauded and criticized. The Myriad case, however, was significant beyond its impact on Sec-tion 101 jurisprudence. Perhaps one of the most remarkable things about Myriad is that it meant so many different things to so many different …
Chapter 20 – Technical Standards: Fair, Reasonable And Non-Discriminatory (Frand) Licensing, Jorge L. Contreras
Chapter 20 – Technical Standards: Fair, Reasonable And Non-Discriminatory (Frand) Licensing, Jorge L. Contreras
Utah Law Faculty Scholarship
This chapter in the forthcoming case book "Intellectual Property Licensing and Transactions" covers licensing transactions involving standards-essential patents (SEPs), including recent legal developments regarding the disclosure (and concealment) of SEPs, fair, reasonable and nondiscriminatory (FRAND) royalty rates, non-discriminatory licensing, the availability of injunctive relief for FRAND-encumbered patents, and transfers of FRAND commitments, as well as specific SDO policy clauses and license text addressing each of these issues.
Patent Fakes: How Fraudulent Inventions Threaten Public Health, Innovation, And The Economy, Jorge L. Contreras
Patent Fakes: How Fraudulent Inventions Threaten Public Health, Innovation, And The Economy, Jorge L. Contreras
Utah Law Faculty Scholarship
Because there is no practical way for patent examiners to verify that the inventions claimed in patent applications actually work, a surprising number of patents are issued for inventions that have turned out to be imaginary, fraudulent or otherwise non-existent. What's more, as illustrated by the recent attempt by Labrador Diagnostics to assert a patent acquired from now-defunct Theranos against firms developing testing kits for COVID-19, these patents present a genuine threat to businesses operating in important sectors of the economy. While it is unrealistic to expect patent examiners to verify the functionality of every claimed invention, there are a …
Amendment Clauses In Easements: Ensuring Protection In Perpetuity, Nancy Mclaughlin
Amendment Clauses In Easements: Ensuring Protection In Perpetuity, Nancy Mclaughlin
Utah Law Faculty Scholarship
Internal Revenue Code § 170(h)(5)(A) requires that the conservation purpose of a deductible conservation easement be “protected in perpetuity.” This article explains how the protected-in-perpetuity requirement should limit the parties’ ability to reserve the right to make post-donation changes to the terms of a deductible easement.
Upholding Tribal Sovereignty And Promoting Tribal Public Health Capacity During The Covid-19 Pandemic, Heather Tanana, Aila Hoss
Upholding Tribal Sovereignty And Promoting Tribal Public Health Capacity During The Covid-19 Pandemic, Heather Tanana, Aila Hoss
Utah Law Faculty Scholarship
Tribes are sovereign nations with authorities and responsibilities over their land and people. This inherent sovereign authority includes the right to promote and protect the health and welfare of their communities. The COVID-19 pandemic has brought national attention to the health inequities experienced by American Indian and Alaska Native communities. The sovereign legal authority for Tribes to respond to this pandemic has received less attention. This Chapter describes some, but not all, of the urgent legal issues impacting Tribal response to the COVID-19 pandemic. It describes and identifies gaps in federal Indian health policies and highlights how Tribes have exercised …
Science Fiction And The Law: A New Wigmorian Bibliography, Jorge L. Contreras
Science Fiction And The Law: A New Wigmorian Bibliography, Jorge L. Contreras
Utah Law Faculty Scholarship
In 1908, Dean John Henry Wigmore compiled a list of novels that no lawyer could “afford to ignore”. Wigmore’s list, taken up by Professor Richard Weisberg in the 1970s, catalogs one hundred novels, stories and dramatic works from Antigone to The Merchant of Venice to Native Son, each of which portrays or offers insight into the legal system or the practice of law. Weisberg’s updated list also includes a compilation of critical studies in the then-emerging law and literature movement. This article undertakes a similar bibliographic exercise with respect to law and the literature of science fiction. While science fiction, …
Covid, Crisis And Courts, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark, Jessica Steinberg
Covid, Crisis And Courts, Anna E. Carpenter, Colleen F. Shanahan, Alyx Mark, Jessica Steinberg
Utah Law Faculty Scholarship
Our country is in crisis. The inequality and oppression that lies deep in the roots and is woven in the branches of our lives has been laid bare by a virus. Relentless state violence against Black people has pushed protestors to the streets. We hope that the legislative and executive branches will respond with policy change for those who struggle the most among us: rental assistance, affordable housing, quality public education, comprehensive health and mental health care. We fear that the crisis will fade, and we will return to more of the same. Whatever lies on the other side of …
The Nci Cancer Moonshot Public Access And Data Sharing (Pads) Policy – Initial Assessment And Implications, Jorge L. Contreras, Tammy Frisby
The Nci Cancer Moonshot Public Access And Data Sharing (Pads) Policy – Initial Assessment And Implications, Jorge L. Contreras, Tammy Frisby
Utah Law Faculty Scholarship
Since 2013, federal research-funding agencies have been required to develop and implement broad data sharing policies. Yet agencies today continue to grapple with the mechanisms necessary to enable the sharing of a wide range of data types, from genomic and other -omics data to clinical and pharmacological data to survey and qualitative data. In 2016, the National Cancer Institute (NCI) launched the ambitious $1.8 billion Cancer Moonshot Program, which included a new Public Access and Data Sharing (PADS) Policy applicable to funding applications submitted on or after October 1, 2017. The PADS Policy encourages the immediate public release of published …