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Full-Text Articles in Law
The America Invents Act 500: Effects Of Patent Monetization Entities On Us Litigation, Sara Jeruss, Robin Feldman, Joshua Walker
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
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.
Beta-Testing The “Particular Machine”: The Machine-Or-Transformation Test In Peril And Its Impact On Cloud Computing, Richard M. Lee
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 …
“Less Is More”: New Property Paradigm In The Information Age?, Aarthi S. Anand
“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
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 …
The “25% Rule” For Patent Infringement Damages After Uniloc, Roy J. Epstein
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 …