Law Commons^™

The America Invents Act 500: Effects Of Patent Monetization Entities On Us Litigation, Sara Jeruss, Robin Feldman, Joshua Walker

Duke Law & Technology Review

Any discussion of flaws in the United States patent system inevitably turns to the system’s modern villain: non-practicing entities, known more colorfully as patent trolls. For many years, however, discussions about non-practicing entities have been long on speculation and short on data. In 2011 Congress directed the nonpartisan Government Accountability Office to study the effects of non-practicing entities on patent litigation. At the request of the GAO, we collected and coded a set of patent lawsuits filed over the past five years. This article presents our analysis of the data and its implications. The data confirm in a dramatic fashion …

Cooking Protestors Alive: The Excessive-Force Implications Of The Active Denial System, Brad Turner

Duke Law & Technology Review

The Active Denial System (ADS) is unlike any other nonviolent weapon: instead of incapacitating its targets, it forces them to flee, and it does so without being seen or heard. Though it is a promising new crowd-control tool for law-enforcement, excessive-force claims involving the ADS will create a Fourth Amendment jurisprudential paradox. Moreover, the resolution of that paradox could undermine other constitutional principles—like equality, fairness, and free speech. Ultimately, the ADS serves as a warning that without legislation, American jurisprudence may not be ready for the next generation of law-enforcement technology and the novel excessive-force claims sure to follow.

A Comparative Critique To U.S. Courts’ Approach To E-Discovery In Foreign Trials, Lauren Ross

Duke Law & Technology Review

This Issue Brief explores an oft-neglected irony in international e-discovery: the rationales used by courts to compel discovery against foreign parties embroiled in litigation in U.S. courts may contradict courts’ reasoning when compelling discovery against U.S. parties engaged in litigation overseas. U.S. courts often grant petitions for discovery, increasingly electronic in form, both against a foreign party in the U.S. and against a domestic party abroad. Although allowing discovery in both scenarios appears consistent, it actually ignores important counterconsiderations like fairness and reciprocity in different legal systems. Because the rise of technology has exacerbated the existing problem, making discovery more …

The Myth And Reality Of Dilution, Sandra L. Rierson

Duke Law & Technology Review

Statutory dilution claims are traditionally justified on the theory that even non-confusing uses of a famous trademark (or similar mark) can nonetheless minutely dilute the source-identifying capacity of the targeted trademark. This Article challenges that theory. The evidence that this phenomenon occurs is weak and has been subject to substantial empirical challenge. The true foundation for dilution claims lies not in alleged economic harms, but rather the misplaced fiction of corporate personality. We do not require trademark holders to prove actual economic injury in the context of a dilution claim because, at least in the vast majority of cases, there …

The Greatest Book You Will Never Read: Public Access Rights And The Orphan Works Dilemma, Libby Greismann

Duke Law & Technology Review

Copyright law aims to promote the dual goals of incentivizing production of literary and artistic works, and promoting public access and free speech. To achieve these goals, Congress has implemented a policy that acknowledges the rights of both the copyright holder and the public, which vest with the fixation of the work. However, as Congressional action has strengthened copyright protection, the rights of the public have been narrowed. Orphan works – works to which the copyright owner cannot be located or identified – present a unique problem, in that achieving free access and use of the works is often impossible. …

Beta-Testing The “Particular Machine”: The Machine-Or-Transformation Test In Peril And Its Impact On Cloud Computing, Richard M. Lee

Duke Law & Technology Review

This Issue Brief examines recent cases addressing the patent eligibility of computer-implemented method claims and their implications for the development of cloud computing technologies. Despite the Supreme Court’s refusal to endorse the machine-or-transformation test as the exclusive patent eligibility inquiry, lower courts have continued to invalidate method claims using a stringent “particular machine” requirement alongside the requisite abstract ideas analysis. This Issue Brief argues that 1) post-Bilski v. Kappos cases have failed to elucidate what constitutes a particular machine for computer-implemented methods; 2) in light of substantial variance among Federal Circuit judges’ Section 101 jurisprudence, the application of the particular …

Journal Staff

Duke Law & Technology Review

No abstract provided.

Cloud Computing, Clickwrap Agreements, And Limitation On Liability Clauses: A Perfect Storm?, Timothy J. Calloway

Duke Law & Technology Review

“To the cloud!” trumpets a commercial by Microsoft, whose aim is to herd customers, and their checkbooks, into the cloud computing fold. But Microsoft, and other cloud providers like Amazon and Google, might inadvertently be doing just the opposite. It is not for lack of security or even early adopter apprehension that potential customers might turn away. Nor is it a lack of fantastic, cost-saving applications of cloud technology.

Rather, the problem is buried deep within these tech giants’ clickwrap agreements—the ones that customers rarely read and to which they invariably click “I Agree.” Hidden in these agreements are limitation …

Dmca Safe Harbors And The Future Of New Digital Music Sharing Platforms, Jing Xu

Duke Law & Technology Review

SoundCloud is an online service provider that allows users to upload, share, and download music that they have created. It is an innovative platform for both amateur and established producers and disc jockeys (DJs) to showcase their original tracks and remixes. Unfortunately, it is also a platform that lends itself to widespread copyright infringement. Looking toward potential litigation, several factors ought to be considered by SoundCloud and other similar providers. The Viacom v. YouTube case, decided in the Southern District of New York and now currently on appeal in the Second Circuit, sheds light on the potential liability service providers …

“Less Is More”: New Property Paradigm In The Information Age?, Aarthi S. Anand

Duke Law & Technology Review

Before striking down laws increasing copyright’s domain, judges and legislators are asking for evidence that information products will be created even if copyright protection is not provided. The future of Internet technology depends on locating this evidence in time to limit expansive copyright. United States law, however, already protects information products under copyright. Hence, this counterfactual evidence that judges request cannot be generated in the United States. In response to the demand for data, American legal scholars have attempted to mine evidence from open software and other non-commercial endeavors on the Internet. However, these endeavors have been dismissed as exceptions …

Open Source Innovation, Patent Injunctions, And The Public Interest, James Boyle

Duke Law & Technology Review

This Article explores the difficulties that high technology markets pose for patent law and, in particular, for patent injunctions. It then outlines the ways in which “open source innovation” is unusually vulnerable to patent injunctions. It argues that courts can recognize this vulnerability, and respond to the particular competitive and innovative benefits of open source innovation, by flexibly applying the Supreme Court’s ruling in eBay v. MercExchange. Having dealt with the lamentable failure of the International Trade Commission to exercise a similar flexibility in its own patent jurisprudence, despite statutory and constitutional provisions that counsel otherwise, the Article concludes with …

Ensuring An Impartial Jury In The Age Of Social Media, Amy J. St. Eve, Michael A. Zuckerman

Duke Law & Technology Review

The explosive growth of social networking has placed enormous pressure on one of the most fundamental of American institutions—the impartial jury. Through social networking services like Facebook and Twitter, jurors have committed significant and often high-profile acts of misconduct. Just recently, the Arkansas Supreme Court reversed a death sentence because a juror Tweeted about the case during deliberations. In light of the significant risks to a fair trial that arise when jurors communicate through social media during trial, judges must be vigilant in monitoring for potential outside influences and in deterring misconduct.

In this Article, we present informal survey data …

Journal Staff

Duke Law & Technology Review

No abstract provided.

The “25% Rule” For Patent Infringement Damages After Uniloc, Roy J. Epstein

Duke Law & Technology Review

The 2011 decision by the Federal Circuit in Uniloc v. Microsoft properly condemned the “25% Rule,” which bases a reasonable royalty on 25% of an infringer’s profits. Nonetheless, at least one proponent of the Rule continues to argue that the Rule is fundamentally valid and should remain in use. This article analyzes the historical development of the Rule, its conceptual basis, its application in actual cases, and relevant insights from other recent Federal Circuit cases. Each analysis shows fundamental problems and contradictions that demonstrate the Rule can never be a reliable patent damages methodology. There is no reason to change …