Law Commons^™

Ownership, Commercial Development, Transfer And Use Of Publicly Funded Research Results: The United States Legal Regime, Rebecca S. Eisenberg

Other Publications

This report summarizes key provisions of the United States. legal regime concerning ownership, dissemination and commercialization of the results of publicly funded research as background for a study on the feasibility of improving access by developing countries and economies in transition to environmentally sound technologies (ESTs) developed in other parts of the world.

Biotechnology And The Legal Constitution Of The Self: Managing Identity In Science, The Market, And Society, Jonathan Kahn

Faculty Scholarship

This article considers how certain ideas underlying the tort of appropriation may enable use more effectively to deal with the problems presented by a case such Moore v. Regents of the University of California which dealt with property rights of Moore’s spleen cells. First, the author explores how the tort of appropriation of identity opens up new approaches to inform and perhaps supplement principles of property law as a guide to managing genetic information or other materials that seem intimately bound up with a particular human subject. Secondly, the author analyzes how the various opinions produced by the Supreme Court …

How Good Is Good Enough?: Expert Evidence Under Daubert And Kuhmo, David H. Kaye, David L. Faigman, Michael J. Saks, Joseph Sanders

Faculty Scholarship

This essay is a response to Professor Edward Imwinkelried's article, "Should the Courts Incorporate a Best Evidence Rule into the Standard Determining the Admissibility of Scientific Testimony?: Enough is Enough When it is not the Best." The authors have two basic points. First, the authors wish to make it clear that they never proposed the "best evidence rule" that he so vigorously attacks, and they think his suggestion that they did so is strained. Second, they wish to reiterate that courts sometimes should do more than they have to ensure that expert testimony is reasonably sound. The important debate underway …

Dna As Evidence: Viewing Science Through The Prism Of The Law, Peter Donnelly, Richard D. Friedman

Articles

In this article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council (NRC) have been badly mistaken in their analysis of this problem. The mistakes are significant because the reports have carried great authority with American courts; moreover, the DNA Advisory Board of the FBI has endorsed the second …

The Promise And Perils Of Strategic Publication To Create Prior Art: A Response To Professor Parchomovsky, Rebecca S. Eisenberg

Articles

In a provocative recent article in the Michigan Law Review, Professor Gideon Parchomovsky observes that a firm racing with a competitor to make a patentable invention might find it strategically advantageous to publish interim research results rather than risk losing a patent race. This strategy exploits legal rules limiting patent protection to technological advances that are new and "nonobvious" in light of the "prior art" or preexisting knowledge in the field. By publishing research results, a firm adds to the prior art and thereby limits what may be patented in the future. Parchomovsky posits that, before it is able to …

Re-Examining The Role Of Patents In Appropriating The Value Of Dna Sequences, Rebecca S. Eisenberg

Articles

As public and private sector initiatives race to complete the sequence of the human genome, patent issues have played a prominent role in speculations about the significance of this achievement. How much of the genome will be subject to the control of patent holders, and what will this mean for future research and the development of products for the improvement of human health? Is a patent system developed to establish rights in mechanical inventions of an earlier era up to the task of resolving competing claims to the genome on behalf of the many sequential innovators who elucidate its sequence …

Parental Liability And The Criminal Misconduct Of Children In The Wake Of An Unregulated Internet: Who Should Pay?, Katherine R. Richardson

Cardozo Journal of Equal Rights & Social Justice

The note examines the legal and practical challenges of holding parents accountable for their children's criminal acts, particularly when influenced by internet content. It questions the effectiveness of parental liability laws and highlights the tension between child protection, parental rights, and internet regulation. While acknowledging the complexity of these issues, the note suggests that parental liability should only apply when a clear causal link exists between negligence and harm, though proving such a link is legally challenging. Ultimately, the analysis advocates for a nuanced approach to balancing these competing interests.

Symposium: Advances In Biomaterials And Devices, And Their Financing, Ronald A. Cass, Michael S. Baram, Steven Bauer, Joyce Wong, Martin Yarmush, Joshua Tolkoff, Rufus King

Faculty Scholarship

My name is Professor Michael Baram and I direct the Center for Law and Technology here at the law school. Today's meeting is the third annual Technology Law Symposium to be held here, sponsored by the high technology law firm of Testa, Hurwitz & Thibeault, LLP and the Center for Law and Technology.

Our meeting today is focused on an exciting area of research and product development. This area involves the use of conventional as well as new genetically engineered biomaterials in new medical device configurations for implantation and with the purpose of restoring bodily functions, regenerating tissue, bone, cartilage, …

Patent Rights And Licensing, Michael S. Baram, Ashley Stevens, Thomas Meyers, Michael J. Meurer

Faculty Scholarship

This panel will discuss intellectual property - the patent incentive, patentability issues, licensing, and litigation-related matters. It will be moderated by Dr. Ashley Stevens, the Director of the Office of Technology Transfer at Boston University. Ashley has multiple degrees, including a doctorate in physical chemistry from Oxford University. He has worked in the biotech industry for a number of years, mostly with startup companies and academic research organizations such as the Dana Farber Cancer Institute, where he was also Director of Technology Transfer. Ashley was instrumental in the startup and operations of firms such as Biotechnica International, and started his …

Symposium: Regulatory And Liability Considerations, Michael S. Baram, Ellen Flannery, Patricia Davis, Gary Marchant

Faculty Scholarship

You can tell from remarks by prior speakers that regulatory approvals and liability prevention are of critical importance to progress in biomaterials. Gene therapy trials and the tragic outcomes of some of those trials have raised the specter of government suspension of clinical studies, termination of funding, and potential liability for personal injury under malpractice or products liability doctrines. Regulatory requirements and the terms of research grants and contracts have to be very carefully addressed by organizations testing, developing, making, selling and using biomaterials, biotechnology, and medical devices. However, many regulatory requirements are incomplete, ambiguous and confusing because the agencies …

Complexity And Copyright In Contradiction, Michael J. Madison

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Two Degrees Of Speech Protection: Free Speech Through The Prism Of Agricultural Disparagement Laws, Howard M. Wasserman

Faculty Publications

In the wake of a 1989 national television broadcast reporting the alleged cancer risk of a chemical applied to apples on trees, many states passed agricultural product disparagement (APD) statutes. These statutes grant civil causes of action to the growers and sellers of perishable food products, against anyone who speaks negatively or disparagingly, without basis in scientific evidence, about the product's safety. In this Article, Howard M Wasserman explores the interplay between the APD statutes and the First Amendment. First, Mr. Wasserman discusses the three categories of restrictions on the freedom of speech, focusing primarily on private civil tort actions …

Owning The Secret Of Life: Biotechnology And Property Rights Revisited, Kojo Yelpaala

McGeorge School of Law Scholarly Articles

No abstract provided.

Patent Exhaustion, Implied Licenses, And Have-Made Rights: Gold Mines Or Mine Fields?, Amber L. Hatfield

Computer Law Review and Technology Journal

Hard-fought patent battles may rage for years, only to settle quietly with a mutual exchange of patent rights. A notable example is the settlement between cellular industry rivals Ericsson and Qualcomm, who reached an agreement in March 1999 settling more than two years of intense litigation. That agreement marked a significant reversal in the parties' litigious posture, calling for the exchange of patent licenses and further paving the way for future collaborative efforts. But with relatively few reported decisions on the possible implications of third-party immunities, many modem agreements often fail to effectively anticipate and address them.

Depending on your …

A Case Study In The Intersection Of Law And Science: The 1999 Report Of The Committee Of Scientists, Charles F. Wilkinson

Publications

No abstract provided.

Software As Discourse: The Power Of Intellectual Property In Digital Architecture, Brian F. Fitzgerald

Cardozo Arts & Entertainment Law Journal

As software increasingly facilitates our living, we are drawn more and more to conceptualize software as discourse. While this may sound trite, it is a fundamental point to appreciate.

One of the most significant intellectual developments of the latter part of the twentieth century has been the poststrucoturalist writing of thinkers like Foucault, Derrida, and Baudril-lard, who explain the multitude of power relationships we experience in our daily lives, the indeterminacy of law, the construction of meaning, and the role of language, or discourse, in the construction of meaning and identity. According to the post-structuralists, we live in an environment …

Essay: The Risks Of Going Non-Gmo, Drew L. Kershen

Faculty Articles

No abstract provided.

Direct Public Offerings On The Internet: A Viable Means Of Obtaining Capital?, Jack A. Rosenbloom

Computer Law Review and Technology Journal

The high cost of capital has stymied many businesses in their attempts to survive and prosper. But the emergence of the Internet and the explosive growth of e-commerce have created new opportunities for some businesses to explore different sources of additional capital. Many small-to-medium-sized companies have not yet fully appreciated the potential of this rapidly growing global network.

In 1998, 33% of American households were online - a percentage that by 2003, should increase to 51%.] More important, the Securities and Exchange Commission (SEC) estimated that, at the end of 1999, as many as ten million investors had bypassed brokers …

Table Of Contents

Computer Law Review and Technology Journal

No abstract provided.

Free Speech On The Internet: Regulating Web Authorship By Students, Rhoda J. Yen

Computer Law Review and Technology Journal

As Internet use increases, more websites authored by students will populate the World Wide Web (WWW). Indeed, about one-third of all personal websites now belong to students, who are mostly minors.' Students' increasing use of the web raises new questions about free speech. This article addresses one of them: May schools censor student-created websites? If so, under what circumstances may they delete pages, edit pages, or discipline students for website speech?

In answering this question, this article looks for guidance to the history of free speech in the classroom. And examining the problem from a free-speech perspective is appropriate. If …

Proprietary Rights And Why Initial Allocations Matter, Clarisa Long

Faculty Scholarship

Initial allocations of proprietary rights matter because who starts out holding the rights helps determine who ends up holding the rights. In patent law, proprietary rights are granted to those who are first to invent. But entities who win the race to patent an invention are not necessarily the final, or best, or most efficient users of the technology. If proprietary rights, particularly patents on basic research results, could be traded efficiently so that downstream innovators could obtain them from initial rights holders easily, then initial allocations of proprietary rights would not matter so much. Transferring proprietary rights is costly, …

The Bill Of Rights And The Constitution: Facing The Challenge Of The Future, Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

No abstract provided.

The Law's Scientific Revolution: Reflections And Ruminations On The Law's Use Of Experts In Year Seven Of The Revolution, David L. Faigman

Faculty Scholarship

No abstract provided.

Kumho Tire Co. V. Carmichael: The Supreme Court Follows Up On The Daubert Test, Martin A. Schwartz

Touro Law Review

No abstract provided.

Law In A Shrinking World: The Interaction Of Science And Technology With International Law, Joseph W. Dellapenna

Kentucky Law Journal

No abstract provided.

A House On Fire: Linking The Biological And Linguistic Diversity Crises, Kieran Suckling

Animal Law Review

Although it is a truism among conservation biologists that humanity is in the midst of the Earth's sixth great extinction spasm, overt public awareness of the crisis is dim, and understanding of its implications even dimmer. The house is burning down around us, and even as the beams begin to cave in, we have but the vaguest intuition of the enormity of the danger. How is it possible to ignore the biosphere careening toward an extinction catastrophe unparalleled not only in the brief span of human history, but in the last sixty-five million years of life on Earth? The question …

Genetic Engineering Of Domestic Animals: Human Prerogative Or Animal Cruelty?, Michelle K. Albrecht

Animal Law Review

Selective breeding and genetic engineering of domestic animals represent two of science's most manipulative advancements of the last century. One of the many questions raised by these procedures is whether the suffering produced violates state anti-cruelty laws. California's animal anti-cruelty statute is one of the most comprehensive and progressive in the country. This article examines whether selective breeding and genetic engineering violate California's anti-cruelty statute, highlighting recent California case law interpreting these statutes and outlining the standard to determine when a violation has occurred. Furthermore, the article seeks to articulate policy suggestions to further the protection afforded these animals affected …

It's Not Just Hair: Historical And Cultural Considerations For An Emerging Technology, Deborah Pergament

Chicago-Kent Law Review

History reflects the social, religious and political importance of human hair. Individuals have used hairstyles to flaunt social conventions about gender, race, sexual identity, and social status. Totalitarian governments have regulated hairstyles as a means of social control and dehumanization. Today, advances in technology now make it possible to discover information about an individual's current or potential health status. Judicial decisions and administrative regulations offer individuals limited protection from state or institutional intrusion into the information revealed by genetic hair analysis. This Article argues that the explosion of technologies that use hair to reveal intimate details of an individual's biological …

Jury Trial Techniques In Complex Civil Litigation, Ronald S. Longhofer

University of Michigan Journal of Law Reform

Ronald Longhofer, an experienced litigator, discusses the challenges inherent in trying a complex civil case to a jury. He explores aspects of complex litigation that often impede jurors from effectively hearing such cases. In conclusion, he suggests litigation techniques which have proved successful in overcoming such obstacles and effectively translating complex evidence to jurors.

Useful Arts In The Information Age, Alan L. Durham

BYU Law Review

No abstract provided.