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Articles 1 - 30 of 172
Full-Text Articles in Law
The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang
The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang
Duke Law & Technology Review
The Supreme Court established a two-part test for determining when an invention is "on sale" under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be "ready for patenting" and subject of a "commercial offer for sale." In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a "commercial offer for sale."
Piracy Deserves No Privacy, Frank Chao
Piracy Deserves No Privacy, Frank Chao
Duke Law & Technology Review
The Recording Industry Association of America ("RIAA"), the music industry's trade and lobbying group, recently initiated a controversial tactic to bring to surface previously anonymous digital pirates of the Internet. This aggressive tactic aims to make safe the digital oceans for copyright and involves identifying and bringing claims against infringing individuals who download, swap, and/or post copyrighted music illegally via the Internet. The RIAA cares not who the infringers are or whether the infringers know the illegality of their actions. Nor does the music industry concern itself with the inevitable storm of backlash bound to fall upon them for suing …
Patenting Computer Data Structures: The Ghost, The Machine And The Federal Circuit, Andrew Joseph Hollander
Patenting Computer Data Structures: The Ghost, The Machine And The Federal Circuit, Andrew Joseph Hollander
Duke Law & Technology Review
Courts view "data structures," the mechanism by which computers store data in meaningful relationships, differently than do computer scientists. While computer scientists recognize that data structures have aspects that are both physical (how they are stored in memory) and logical (the relationships among the stored information), the Federal Circuit, in its attempts to set clear standards of the scope of patentability of data structures, has not fully appreciated their dualistic nature. This i-brief explains what data structures are, explores how courts have wrestled with setting a limiting principle to determine their patentability, and discusses the resultant impact on claim drafting.
U.S. Infringement Liability For Foreign Sellers Of Infringing Products, Troy Petersen
U.S. Infringement Liability For Foreign Sellers Of Infringing Products, Troy Petersen
Duke Law & Technology Review
With the ever-increasing international flavor of business comes an important question for United States patent holders and foreign manufacturers alike: Can a company be held liable for patent infringement in the United States for selling an infringing product abroad that is later imported into the United States?
The Alaska Misconduct Involving Weapons Statutes: A History And Analysis, John D. Fred
The Alaska Misconduct Involving Weapons Statutes: A History And Analysis, John D. Fred
Alaska Law Review
No abstract provided.
Alaska’S Dna Database: The Statute, Its Problems, And Proposed Solutions, Marika R. Athens, Alyssa A. Rower
Alaska’S Dna Database: The Statute, Its Problems, And Proposed Solutions, Marika R. Athens, Alyssa A. Rower
Alaska Law Review
No abstract provided.
Transfer Regulations And Cost-Effectiveness Analysis, Eric A. Posner
Transfer Regulations And Cost-Effectiveness Analysis, Eric A. Posner
Duke Law Journal
Recent scholarship on regulatory oversight has focused on cost-benefit analysis of perscriptive regulations-regulations that restrict behavior such as pollution-and their use to cure market failures, and has overlooked the vast number of transfer regulations. Transfer regulations are regulations that channel funds to beneficiaries. These regulations are authorized by statutes that establish entitlement programs like Medicare and Social Security, pay one-time distributions to victims of misfortunes such as natural disasters and the 9/11 terrorist attack, and fund pork barrel spending. Cost-benefit analysis cannot be used to evaluate transfer regulations because all transfer regulations fail cost-benefit analysis; cost-effectiveness analysis, however, can be …
The Problems Of Pouring-Rights Contracts, David S. Almeling
The Problems Of Pouring-Rights Contracts, David S. Almeling
Duke Law Journal
No abstract provided.
Nationwide, State Law Class Actions And The Beauty Of Federalism, Jesse Tiko Smallwood
Nationwide, State Law Class Actions And The Beauty Of Federalism, Jesse Tiko Smallwood
Duke Law Journal
No abstract provided.
The Cherokee Removal And The Fourteenth Amendment, Gerard N. Magliocca
The Cherokee Removal And The Fourteenth Amendment, Gerard N. Magliocca
Duke Law Journal
This Article recasts the original understanding of the Fourteenth Amendment by showing how its drafters were influenced by the events that culminated in The Trail of Tears. A fresh review of the primary sources reveals that the removal of the Cherokee Tribe by President Andrew Jackson was a seminal moment that sparked the growth of the abolitionist movement and then shaped its thought for the next three decades on issues ranging from religious freedom to the antidiscrimination principle. When these same leaders wrote the Fourteenth Amendment, they expressly invoked the Cherokee Removal and the Supreme Court's opinion in Worcester v. …
A Matter Of Good Form: The (Downsized) Hague Judgments Convention And Conditions Of Formal Validity For The Enforcement Of Forum Selection Agreements, Jason Webb Yackee
A Matter Of Good Form: The (Downsized) Hague Judgments Convention And Conditions Of Formal Validity For The Enforcement Of Forum Selection Agreements, Jason Webb Yackee
Duke Law Journal
Can the Hague Judgments Convention be saved through radical downsizing? It has been more than ten years since the Hague Conference on Private International Law (Hague Conference) first officially began exploring the possibility of drafting a global convention on jurisdiction and the enforcement of foreign judgments in civil and commercial matters. (1) It has been more than four years since the Conference presented its preliminary draft convention, (2) itself modeled largely on the European Community's 1968 Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (Brussels I). (3) However, this preliminary draft convention was rejected …
The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove
The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove
Duke Law Journal
This Article develops justifications for protections against the disclosure of private information. An extensive body of scholarship has attacked such protections as anathema to the Information Age, where the free flow of information is championed as a fundamental value. This Article responds to two general critiques of disclosure protections: (1) that they inhibit freedom of speech, and (2) that they restrict information useful for judging others. Regarding the free speech critique, the Article argues that not all speech is of equal value; speech of private concern is less valuable than speech of public concern. The difficulty, however, is distinguishing between …
In Re Exxon Valdez: Application Of Due Process Constraints On Punitive Damages Awards, Joseph J. Chambers
In Re Exxon Valdez: Application Of Due Process Constraints On Punitive Damages Awards, Joseph J. Chambers
Alaska Law Review
No abstract provided.
The Liability Of Alaska Mental Health Providers For Mandated Treatment, Marshall L. Wilde
The Liability Of Alaska Mental Health Providers For Mandated Treatment, Marshall L. Wilde
Alaska Law Review
No abstract provided.
Terminating Active Efforts: The Alaska Supreme Court Misfires In J.S. V. State, Mark Andrews
Terminating Active Efforts: The Alaska Supreme Court Misfires In J.S. V. State, Mark Andrews
Alaska Law Review
No abstract provided.
Assisted Suicide, Liberal Individualism, And Visceral Jurisprudence: A Reply To Professor Chemerinsky, Eric A. Johnson
Assisted Suicide, Liberal Individualism, And Visceral Jurisprudence: A Reply To Professor Chemerinsky, Eric A. Johnson
Alaska Law Review
No abstract provided.
Nontraditional Venture Capital: An Economic Development Strategy For Alaska, Merrill F. Hoopengardner
Nontraditional Venture Capital: An Economic Development Strategy For Alaska, Merrill F. Hoopengardner
Alaska Law Review
No abstract provided.
Lights, Camera, Lawsuit, A. J. Bedel
Lights, Camera, Lawsuit, A. J. Bedel
Duke Law & Technology Review
As the speed of Internet access improves, the film industry will need to explore its options for eliminating the downloading of digital movie files. After examining the successes and failures of the music industry in its battle with peer-to-peer networks, the film industry has begun to follow its predecessor. However, the nature of film as an entertainment medium is quite different than that of music. As a result, the film industry could implement creative solutions to this problem that would not have been available to the music industry. A recent study shows that most films available on the Internet have …
Pfaff Revisited: How The Federal Circuit Has Elaborated On The “Ready For Patenting” Standard, Jennifer F. Miller
Pfaff Revisited: How The Federal Circuit Has Elaborated On The “Ready For Patenting” Standard, Jennifer F. Miller
Duke Law & Technology Review
In Pfaff v. Wells Electronics, Inc., the Supreme Court established a two-part test to determine when an invention is "on sale" for purposes of Title 35 U.S.C. §102(b). In addition to being the subject of a commercial offer for sale, an invention must be "ready for patenting" in order to be considered "on sale." Since Pfaff, the Court of Appeals for the Federal Circuit has had numerous opportunities to expound upon how inventors can fulfill the latter condition. This iBrief will discuss the factors the Federal Circuit has determined are indicative of an invention's "ready for patenting" status.
3d Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?, Ben Quarmby
3d Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?, Ben Quarmby
Duke Law & Technology Review
With the advent of protein engineering, the determination of a protein’s 3D structure has taken on a whole new importance. This has prompted some to call for the United States Patent and Trademark Office [USPTO] to break with tradition and allow patents on the three-dimensional structural information of proteins. This iBrief will discuss whether such information would constitute patentable subject matter under 35 U.S.C. §101, and how much protection patents on this information could actually confer.
Europe: Open Market… Open Source?, Heather Forrest
Europe: Open Market… Open Source?, Heather Forrest
Duke Law & Technology Review
The recent Proposed Directive on the patentability of computer-implemented inventions takes the European Community a step further down the road towards patents for computer software. If the goal of the Proposed Directive is to facilitate market entry for individual programmers and small and medium enterprises -- as it must be within the framework of the European Treaty -- then the European Commission should not be expanding intellectual property rights in technology goods, which, by their very nature, will lose value to the public long before their monopoly rights expire. Rather, the Commission should look to the open source movement and …
“Mediation-Only” Filings In The Delaware Court Of Chancery: Can New Value Be Added By One Of America’S Business Courts?, Leo E. Strine Jr.
“Mediation-Only” Filings In The Delaware Court Of Chancery: Can New Value Be Added By One Of America’S Business Courts?, Leo E. Strine Jr.
Duke Law Journal
The following Essay by Vice Chancellor Leo Strine of the Delaware Court of Chancery advocates the enactment of legislation that authorizes the Court of Chancery to handle "mediation-only" cases. Such cases would be filed solely to invoke the aid of a Chancellor to mediate a business dispute between parties. By advocating this innovative dispute resolution option, the Essay embraces a new dimension of the American judicial role that allows American businesses to more efficiently solve complicated business controversies. The mediation-only device was conceived in 2001 by members of the Delaware judiciary, including Vice Chancellor Strine, in consultation with members of …
“Vacation” At Sea: Judicial Remedies And Equitable Discretion In Administrative Law, Ronald M. Levin
“Vacation” At Sea: Judicial Remedies And Equitable Discretion In Administrative Law, Ronald M. Levin
Duke Law Journal
Scholars have rarely examined the remedial issues that federal courts may face when they find that an administrative agency has acted unlawfully. This Article presents a broad survey of that topic in the course of exploring a narrower doctrinal issue: the validity of "remand without vacation." That term denotes a practice whereby a court remands an agency action for further work but allows the action to remain in place during the remand proceedings. In recent years many appellate panels have resorted to this practice in order to minimize disruption of an ongoing administrative program or to protect private reliance interests. …
Shareholder Value And Auditor Independence, William W. Bratton
Shareholder Value And Auditor Independence, William W. Bratton
Duke Law Journal
This Article questions the practice of framing problems concerning auditors' professional responsibility inside a principal-agent paradigm. If professional independence is to be achieved, auditors cannot be enmeshed in agency relationships with the shareholders of their audit clients. As agents, the auditors by definition become subject to the principal's control and cannot act independently. For the same reason, auditors' duties should be neither articulated in the framework of corporate law fiduciary duty, nor conceived relationally at all. These assertions follow from an inquiry into the operative notion of the shareholder-beneficiary. The Article unpacks the notion of the shareholder and tells a …
Exporting U.S. Corporate Governance Standards Through The Sarbanes-Oxley Act: Unilateralism Or Cooperation?, Minodora D. Vancea
Exporting U.S. Corporate Governance Standards Through The Sarbanes-Oxley Act: Unilateralism Or Cooperation?, Minodora D. Vancea
Duke Law Journal
No abstract provided.
The Pervasive Problem Of Court-Sanctioned Secrecy And The Exigency Of National Reform, David S. Sanson
The Pervasive Problem Of Court-Sanctioned Secrecy And The Exigency Of National Reform, David S. Sanson
Duke Law Journal
No abstract provided.