Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Publication Year
- Publication
- Publication Type
Articles 1 - 28 of 28
Full-Text Articles in Intellectual Property Law
A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella
A Synthesis Of The Science And Law Relating To Eyewitness Misidentifications And Recommendations For How Police And Courts Can Reduce Wrongful Convictions Based On Them, Henry F. Fradella
Seattle University Law Review
The empirical literature on perception and memory consistently demonstrates the pitfalls of eyewitness identifications. Exoneration data lend external validity to these studies. With the goal of informing law enforcement officers, prosecutors, criminal defense attorneys, judges, and judicial law clerks about what they can do to reduce wrongful convictions based on misidentifications, this Article presents a synthesis of the scientific knowledge relevant to how perception and memory affect the (un)reliability of eyewitness identifications. The Article situates that body of knowledge within the context of leading case law. The Article then summarizes the most current recommendations for how law enforcement personnel should—and …
Judging Patents, Sapna Kumar
Judging Patents, Sapna Kumar
William & Mary Law Review
Patent litigation is regarded as the “neurosurgery of litigation.” To adjudicate these cases, judges must grasp complex technology underlying the claims at issue, notwithstanding the fact that many judges lack relevant science or technology backgrounds. This problem is compounded by the fact that judges generally lack access to neutral expertise, forcing them to rely upon party-hired experts for tutorials. By contrast, several European patent courts utilize technically qualified judges who work side by side with their legally trained counterparts to decide patent cases. The integration of technical expertise into the judiciary improves the speed of litigation, provides the court with …
Comic Books, The First Amendment, And The “Best Test” For Right Of Publicity Issues, Rachel Silverstein
Comic Books, The First Amendment, And The “Best Test” For Right Of Publicity Issues, Rachel Silverstein
Touro Law Review
No abstract provided.
Court Capture, Jonas Anderson
Court Capture, Jonas Anderson
Articles in Law Reviews & Other Academic Journals
Capture — the notion that a federal agency can become controlled by the industry the agency is supposed to be regulating — is a fundamental concern for administrative law scholars. Surprisingly, however, no thorough treatment of how capture theory applies to the federal judiciary has been done. The few scholars who have attempted to apply the insights of capture theory to federal courts have generally concluded that the federal courts are insulated from capture concerns.
This Article challenges the notion that the federal courts cannot be captured. It makes two primary arguments. As an initial matter, this Article makes the …
Court Competition For Patent Cases, Jonas Anderson
Court Competition For Patent Cases, Jonas Anderson
Articles in Law Reviews & Other Academic Journals
The traditional academic explanation for forum shopping is simple: litigants prefer to file cases in courts that offer some substantial advantage — either legal or procedural — over all other courts. But the traditional explanation fails to account for competition for litigants among courts. This Article suggests that forum shopping in patent law is driven in part by the creation of procedural and administrative distinctions among courts that are designed to attract, or in some cases to repel, patent litigants.
This Article makes two primary contributions to the literature, one theoretical and one normative. First, it theorizes that judicial competition …
Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart
Weeds, Seeds, & Deeds Redux: Natural And Legal Evolution In The U.S. Seed Wars, Rebecca Stewart
Rebecca K Stewart
Ever since the U.S. Patent and Trademark Office began issuing utility patents for plants, the United States has sat squarely on the frontlines of what have come to be known as the “seed wars.” In the last two decades, the majority of battles in the U.S. seed wars have been waged in the form of patent infringement lawsuits. Typically these suits are filed by biotechnology corporations such as Monsanto against farmers accused of saving and planting patented seed that self-replicates to produce progeny embodying—and thus infringing—the biotech corporations’ patented inventions.
Yet in recent years, the seed wars have begun to …
Antitrust Analysis After Actavis: Applying The Rule Of Reason To Reverse Payments, Benjamin Miller
Antitrust Analysis After Actavis: Applying The Rule Of Reason To Reverse Payments, Benjamin Miller
Benjamin Miller
Abstract In F.T.C. v. Actavis, Inc. the Supreme Court resolved a circuit split regarding the proper evaluation of reverse payment settlements under federal antitrust law, holding that they must be evaluated under a rule of reason analysis. However, the Court simultaneously created significant uncertainty by declaring that the lower courts were responsible for structuring the analysis. While a few cases are currently in the pre-trial phase, the only decisions relating to reverse payments since Actavis have been rulings on pre-trial motions—there have been no decisions on the merits. Given the intricate intersection between antitrust and intellectual property principles in these …
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson
Hillary A Henderson
Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …
Patent Dialogue, Jonas Anderson
Patent Dialogue, Jonas Anderson
Articles in Law Reviews & Other Academic Journals
This Article examines the unique dialogic relationship that exists between the Supreme Court and Congress concerning patent law. In most areas of the law, Congress and the Supreme Court engage directly with each other to craft legal rules. When it comes to patent law, however, Congress and the Court often interact via an intermediary institution: the U.S. Court of Appeals for the Federal Circuit. In patent law, dialogue often begins when Congress or the Supreme Court acts as a dialogic catalyst, signaling reform priorities to which the Federal Circuit often responds.
Appreciating the unique nature of patent dialogue has important …
Congress As A Catalyst Of Patent Reform At The Federal Circuit, Jonas Anderson
Congress As A Catalyst Of Patent Reform At The Federal Circuit, Jonas Anderson
Articles in Law Reviews & Other Academic Journals
The U.S. Court of Appeals for the Federal Circuit is the dominant institution in patent law. The court’s control over patent law and policy has led to a host of academic proposals to shift power away from the court and towards other institutions, including the U.S. Supreme Court, the U.S. Patent and Trademark Office, and federal district courts. Surprisingly, however, academics have largely dismissed Congress as a potential institutional check on the Federal Circuit. Congress, it is felt, is too slow, too divided, and too beholden to special interests to effectively monitor changes in innovation and respond with appropriate reforms. …
Hyperactive Judges: An Empirical Study Of Judge-Dependent "Judicial Hyperactivity" In The Federal Circuit, Ted L. Field
Hyperactive Judges: An Empirical Study Of Judge-Dependent "Judicial Hyperactivity" In The Federal Circuit, Ted L. Field
Ted L. Field
This article presents an empirical study of the extent to which individual judges of the U.S. Court of Appeals for the Federal Circuit—which has exclusive jurisdiction over patent appeals—engage in what William C. Rooklidge and Matthew F. Weil call “judicial hyperactivity.” This article defines “judicial hyperactivity” as a form of judicial activism in which a judge improperly “elevate[s] his or her judgment above that of another constitutionally significant actor (e.g., Congress, the President, [or] other Article III courts),” where this improper behavior is not necessarily driven by politics or ideology as is traditional judicial activism. This study considers the extent …
Informal Deference: A Historical, Empirical, And Normative Analysis Of Patent Claim Construction, Jonas Anderson, Peter S. Menell
Informal Deference: A Historical, Empirical, And Normative Analysis Of Patent Claim Construction, Jonas Anderson, Peter S. Menell
Articles in Law Reviews & Other Academic Journals
Patent scope plays a central role in the operation of the patent system, making patent claim construction a critical aspect of just about every patent litigation. With the resurgence of patent jury trials in the 1980s, the allocation of responsibility for interpreting patent claims between trial judge and jury emerged as a salient issue. While the Supreme Court’s Markman decision usefully removed claim construction from the black box of jury deliberations notwithstanding its "mongrel" mixed fact/law character, the Federal Circuit's adherence to the view that claim construction is a pure question of law subject to de novo appellate review produced …
The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh
The Pragmatic Incrementalism Of Common Law Intellectual Property, Shyamkrishna Balganesh
All Faculty Scholarship
‘Common law intellectual property’ refers to a set of judge-made legal regimes that create exclusionary entitlements in different kinds of intangibles. Principally the creation of courts, many of these regimes are older than their statutory counterparts and continue to co-exist with them. Surprisingly though, intellectual property scholarship has paid scant attention to the nuanced law-making mechanisms and techniques that these regimes employ to navigate through several of intellectual property law’s substantive and structural problems. Common law intellectual property regimes employ a process of rule development that this Article calls ‘pragmatic incrementalism’. It involves the use of pragmatic and minimalist techniques …
Federal Circuit Patent Precedent: An Empirical Study Of Institutional Authority And Ip Ideology, David Pekarek-Krohn, Emerson H. Tiller
Federal Circuit Patent Precedent: An Empirical Study Of Institutional Authority And Ip Ideology, David Pekarek-Krohn, Emerson H. Tiller
Faculty Working Papers
In this paper, we aim to better understand the institutional authority of the Federal Circuit as a source of law as well as the influence of pro-patent and anti-patent ideological forces at play between the Supreme Court, Federal Circuit, and the district courts. Our specific focus is on the district courts and how they cite Federal Circuit precedent relative to Supreme Court precedent to support their decisions, whether they be pro-patent or anti-patent. Using a variety of citation approaches and statistical tests, we find that federal district courts treat the Federal Circuit as more authoritative (compared to the Supreme Court) …
Claim Construction, Appeal, And The Predictability Of Interpretive Regimes, Jeffrey A. Lefstin
Claim Construction, Appeal, And The Predictability Of Interpretive Regimes, Jeffrey A. Lefstin
ExpressO
Interpretation is central to patent law, because most adjudications require association of written claims with non-linguistic subject matter. By some accounts, the lack of predictability in the law of claim interpretation has reached crisis proportions, and has prompted calls for far-reaching changes in the way patent issues are adjudicated. However, the actual evidence that questions of interpretation are more problematic than other aspects of patent law is sparser than is commonly recognized. Moreover, while the controversy over claim interpretation centers around the predictability of interpretation between trial and appeal, what is important is to be able to predict outcomes before …
The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin
The Measure Of The Doubt: Dissent, Indeterminacy, And Interpretation At The Federal Circuit, Jeffrey A. Lefstin
ExpressO
The law of patent claim interpretation articulated by the United States Court of Appeals for the Federal Circuit is commonly supposed to be markedly indeterminate, and to be responsible for a lack of certainty and predictability in patent infringement litigation. But there has been no attempt to measure objectively the indeterminacy associated with patent claim interpretation, or, for that matter, of any other field of law. This Article shows that under appropriate conditions the indeterminacy of a legal regime may be measured empirically by the frequency of judicial dissents. Application of this method to the Federal Circuit's jurisprudence demonstrates that …
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.
Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali
Data Privacy, Data Piracy: Can India Provide Adequate Protection For Electronically Transferred Data?, Vinita Bali
ExpressO
As the wave of outsourcing to India swells, there is growing concern about the inadequacies of the India legal system in protecting data being transferred to it from other nations for the purpose of processing. India has a smattering of laws that scantily address the issue of data privacy. Under pressure from the business processing industry in India, as well as from the European Union and other nations, it is but a matter of time before India adopts a slate of laws that address the issue of data protection. Once these laws are enacted, the main issue that remains is …
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
ExpressO
This brief comment suggests where the anti-eminent domain movement might be heading next.
The Supreme Court, Stare Decisis, And The Role Of Judicial Deference In Patent Claim Construction Appeals, David Krinsky
The Supreme Court, Stare Decisis, And The Role Of Judicial Deference In Patent Claim Construction Appeals, David Krinsky
ExpressO
The U.S. Court of Appeals for the Federal Circuit reviews de novo the rulings of district judges about patent claim construction. This state of affairs—surprising to many lawyers who are unfamiliar with patent law—is controversial because claim construction is one of the most important and vexing aspects of patent litigation, necessary to the vast majority of patent cases, and because it is probably responsible, at least in part, for the high reversal rate in patent cases. Commentary by both scholars and judges about the standard of review in patent cases has centered on whether the Federal Circuit should change it …
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
ExpressO
No abstract provided.
From International Law To Law And Globalization, Paul Schiff Berman
From International Law To Law And Globalization, Paul Schiff Berman
ExpressO
International law’s traditional emphasis on state practice has long been questioned, as scholars have paid increasing attention to other important – though sometimes inchoate – processes of international norm development. Yet, the more recent focus on transnational law, governmental and non-governmental networks, and judicial influence and cooperation across borders, while a step in the right direction, still seems insufficient to describe the complexities of law in an era of globalization. Accordingly, it is becoming clear that “international law” is itself an overly constraining rubric and that we need an expanded framework, one that situates cross-border norm development at the intersection …
Diamond V. Chakrabarty: Gauging Congress’ Response To Dynamic Statutory Interpretation By The Supreme Court , Anna E. Lumelsky
Diamond V. Chakrabarty: Gauging Congress’ Response To Dynamic Statutory Interpretation By The Supreme Court , Anna E. Lumelsky
ExpressO
In this article, I consider the 1980 Supreme Court decision, Diamond v. Chakrabarty, and Congress’ response to it in light of several contemporary views on statutory interpretation. I conclude that in science and technology-related cases in which delay could significantly hamper the advancement of the field, the Supreme Court should interpret federal statutes dynamically in response to a changing social context, but should also attempt to conform its interpretations to legislative preferences in order to avoid a legislative override.
Are You Experienced?: Examining The Need For Specialized Ethics Rules In Patent Litigation, Benjamin J. Sodey
Are You Experienced?: Examining The Need For Specialized Ethics Rules In Patent Litigation, Benjamin J. Sodey
ExpressO
Any attorney licensed to practice before a federal district court, regardless or his or her area of specialization, may file a patent infringement suit on behalf of a client in that court. The possibility exists, therefore, for an attorney having little or no intellectual property experience to represent clients in complex patent litigation matters. Due to this, infringement defendants and their counsel may find themselves on the receiving end of a dubious patent claim brought by attorneys lacking patent law experience. This article discusses whether the existing rules governing attorney conduct, such as professional responsibility, procedural, or statutory rules, are …
Albert Einstein, Esq., Steven Goldberg
Albert Einstein, Esq., Steven Goldberg
Georgetown Law Faculty Publications and Other Works
Albert Einstein’s 1905 paper setting forth the special theory of relativity is one of the most famous scientific articles ever written. Peter Galison’s influential book, Einstein’s Clocks, Poincaré’s Maps: Empires of Time (2003), demonstrates that Einstein’s paper was fundamentally shaped by his work as a patent examiner by showing that arguments previously seen as abstract thought experiments were instead derived from Einstein’s work on patent applications for devices that coordinate clocks. Moving beyond Galison’s insights, we can see portions of Einstein’s paper as reflecting the quasi-judicial role of a patent examiner. Like trial judges, patent examiners must apply settled legal …
Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai
Specialized Trial Courts: Concentrating Expertise On Fact, Arti K. Rai
Faculty Scholarship
In the absence of a specialized patent trial court with expertise in fact-finding, the Court of Appeals for the Federal Circuit often reviews de novo the many factual questions that pervade patent law. De novo review of fact by an appellate court is problematic. In the area of patent law, as in other areas of law, there are sound institutional justifications for the conventional division of labor that gives trial courts primary responsibility for questions of law. This Article identifies the problems created by de novo appellate review of fact and argues for the creation of a specialized trial court …
The Abrogation Of Expert Dissection In Popular Music Copyright Infringement Cases: Suggested Modifications For The Implementation Of The Lay Listener Standard, Matthew W. Daus
Touro Law Review
No abstract provided.
Comments, Various Editors