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Articles 1 - 10 of 10
Full-Text Articles in Jurisprudence
Teva And The Process Of Claim Construction, Lee Petherbridge Ph.D., R. Polk Wagner
Teva And The Process Of Claim Construction, Lee Petherbridge Ph.D., R. Polk Wagner
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In Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc., the Supreme Court addressed an oft-discussed jurisprudential disconnect between itself and the U.S. Court of Appeals for the Federal Circuit: whether patent claim construction was “legal” or “factual” in nature, and how much deference is due to district court decisionmaking in this area. In this Article, we closely examine the Teva opinion and situate it within modern claim construction jurisprudence. Our thesis is that the Teva holding is likely to have only very modest effects on the incidence of deference to district court claim construction but that for unexpected reasons the …
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
The Normativity Of Copying In Copyright Law, Shyamkrishna Balganesh
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Not all copying constitutes copyright infringement. Quite independent of fair use, copyright law requires that an act of copying be qualitatively and quantitatively significant enough or “substantially similar” for it to be actionable. Originating in the nineteenth century, and entirely the creation of courts, copyright’s requirement of “substantial similarity” has thus far received little attention as an independently meaningful normative dimension of the copyright entitlement. This Article offers a novel theory for copyright’s substantial-similarity requirement by placing it firmly at the center of the institution and its various goals and purposes. As a common-law-style device that mirrors the functioning of …
The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh
The Obligatory Structure Of Copyright Law: Unbundling The Wrong Of Copying, Shyamkrishna Balganesh
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No abstract provided.
Technologies Of Control And The Future Of The First Amendment, Christopher S. Yoo
Technologies Of Control And The Future Of The First Amendment, Christopher S. Yoo
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The technological context surrounding the Supreme Court’s landmark decision in FCC v. Pacifica Foundation allowed the Court to gloss over the tension between two rather disparate rationales. Those adopting a civil libertarian view of free speech could support the decision on the grounds that viewers’ and listeners’ inability to filter out unwanted speech exposed them to content that they did not wish to see or hear. At the same time, Pacifica also found support from those who more paternalistically regard indecency as low value (if not socially harmful) speech that is unworthy of full First Amendment protection. The arrival of …
"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh
"Hot News": The Enduring Myth Of Property In News, Shyamkrishna Balganesh
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No abstract provided.
Life After Bilski, Mark A. Lemley, Michael Risch, Ted Sichelman, R. Polk Wagner
Life After Bilski, Mark A. Lemley, Michael Risch, Ted Sichelman, R. Polk Wagner
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In Bilski v. Kappos, the Supreme Court declined calls to categorically exclude business methods—or any technology—from the patent law. It also rejected as the sole test of subject matter eligibility the Federal Circuit’s deeply-flawed machine-or-transformation test, under which no process is patentable unless it is tied to a particular machine or transforms an article to another state or thing. Subsequent developments threaten to undo that holding, however. Relying on the Court’s description of the Federal Circuit test as a “useful and important clue,” the U.S. Patent and Trademark Office, patent litigants, and district courts have all continued to rely on …
The Two Federal Circuits, R. Polk Wagner
The Two Federal Circuits, R. Polk Wagner
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No abstract provided.
Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen
Dredging Up The Past: Lifelogging, Memory And Surveillance, Anita L. Allen
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The term “lifelog” refers to a comprehensive archive of an individual's quotidian existence, created with the help of pervasive computing technologies. Lifelog technologies would record and store everyday conversations, actions, and experiences of their users, enabling future replay and aiding remembrance. Products to assist lifelogging are already on the market; but the technology that will enable people fully and continuously to document their entire lives is still in the research and development phase. For generals, edgy artists and sentimental grandmothers alike, lifelogging could someday replace or complement, existing memory preservation practices. Like a traditional diary, journal or day-book, the lifelog …
Of Patents And Path Dependency: A Comment On Burk And Lemley, R. Polk Wagner
Of Patents And Path Dependency: A Comment On Burk And Lemley, R. Polk Wagner
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This Article delves into issues surrounding the relationship between technology and the patent law. Responding to Dan Burk and Mark Lemley's earlier article, Is Patent Law Technology-Specific?, the piece notes that the basic question posed by Burk and Lemley's article is a relatively easy question given the several doctrines that explicitly link the subject matter context of an invention to the validity and scope of related patents. This sort of technological exceptionalism (which this Article refers to as micro-exceptionalism) is both observable and easily justifiable for a legal regime directed to technology policy. In contrast, Burk and Lemley's identification of, …
The Medium Is The Mistake: The Law Of Software For The First Amendment, R. Polk Wagner
The Medium Is The Mistake: The Law Of Software For The First Amendment, R. Polk Wagner
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Is computer software ? code written by humans that instructs a computer to perform certain tasks ? protected by the First Amendment? The answer to this question will significantly impact the course of future technological regulation, and will affect the scope of free expression rights in new media. In this note, I attempt to establish a framework for analysis, noting at the outset that the truly important question in this context is the threshold question: what is "speech or . . . the press"? I first describe two general ways that the Supreme Court has addressed the threshold question. One …