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Duke Law

2003

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Articles 1 - 30 of 258

Full-Text Articles in Law

The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang Dec 2003

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."

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Piracy Deserves No Privacy, Frank Chao Dec 2003

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 …

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Patenting Computer Data Structures: The Ghost, The Machine And The Federal Circuit, Andrew Joseph Hollander Dec 2003

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.

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U.S. Infringement Liability For Foreign Sellers Of Infringing Products, Troy Petersen Dec 2003

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?

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The Liability Of Alaska Mental Health Providers For Mandated Treatment, Marshall L. Wilde Dec 2003

The Liability Of Alaska Mental Health Providers For Mandated Treatment, Marshall L. Wilde

Alaska Law Review

No abstract provided.

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The Alaska Misconduct Involving Weapons Statutes: A History And Analysis, John D. Fred Dec 2003

The Alaska Misconduct Involving Weapons Statutes: A History And Analysis, John D. Fred

Alaska Law Review

No abstract provided.

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Alaska’S Dna Database: The Statute, Its Problems, And Proposed Solutions, Marika R. Athens, Alyssa A. Rower Dec 2003

Alaska’S Dna Database: The Statute, Its Problems, And Proposed Solutions, Marika R. Athens, Alyssa A. Rower

Alaska Law Review

No abstract provided.

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The Problems Of Pouring-Rights Contracts, David S. Almeling Dec 2003

The Problems Of Pouring-Rights Contracts, David S. Almeling

Duke Law Journal

No abstract provided.

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Nationwide, State Law Class Actions And The Beauty Of Federalism, Jesse Tiko Smallwood Dec 2003

Nationwide, State Law Class Actions And The Beauty Of Federalism, Jesse Tiko Smallwood

Duke Law Journal

No abstract provided.

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The Cherokee Removal And The Fourteenth Amendment, Gerard N. Magliocca Dec 2003

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. …

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Transfer Regulations And Cost-Effectiveness Analysis, Eric A. Posner Dec 2003

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 …

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The Virtues Of Knowing Less: Justifying Privacy Protections Against Disclosure, Daniel J. Solove Dec 2003

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 …

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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 Dec 2003

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 …

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Note From The Editor Dec 2003

Note From The Editor

Alaska Law Review

No abstract provided.

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In Re Exxon Valdez: Application Of Due Process Constraints On Punitive Damages Awards, Joseph J. Chambers Dec 2003

In Re Exxon Valdez: Application Of Due Process Constraints On Punitive Damages Awards, Joseph J. Chambers

Alaska Law Review

No abstract provided.

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Terminating Active Efforts: The Alaska Supreme Court Misfires In J.S. V. State, Mark Andrews Dec 2003

Terminating Active Efforts: The Alaska Supreme Court Misfires In J.S. V. State, Mark Andrews

Alaska Law Review

No abstract provided.

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Assisted Suicide, Liberal Individualism, And Visceral Jurisprudence: A Reply To Professor Chemerinsky, Eric A. Johnson Dec 2003

Assisted Suicide, Liberal Individualism, And Visceral Jurisprudence: A Reply To Professor Chemerinsky, Eric A. Johnson

Alaska Law Review

No abstract provided.

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Nontraditional Venture Capital: An Economic Development Strategy For Alaska, Merrill F. Hoopengardner Dec 2003

Nontraditional Venture Capital: An Economic Development Strategy For Alaska, Merrill F. Hoopengardner

Alaska Law Review

No abstract provided.

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Journal Staff Dec 2003

Journal Staff

Alaska Law Review

No abstract provided.

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Journal Staff Dec 2003

Journal Staff

Duke Law Journal

No abstract provided.

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Lights, Camera, Lawsuit, A. J. Bedel Nov 2003

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 …

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Pfaff Revisited: How The Federal Circuit Has Elaborated On The “Ready For Patenting” Standard, Jennifer F. Miller Nov 2003

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.

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3d Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?, Ben Quarmby Nov 2003

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.

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Europe: Open Market… Open Source?, Heather Forrest Nov 2003

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 …

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“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. Nov 2003

“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 …

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State Regulation Of Medical Necessity: The Case Of Weight-Reduction Surgery, Mark A. Hall Nov 2003

State Regulation Of Medical Necessity: The Case Of Weight-Reduction Surgery, Mark A. Hall

Duke Law Journal

No abstract provided.

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Sec Enforcement Heuristics: An Empirical Inquiry, James D. Cox, Randall S. Thomas, Dana Kiku Nov 2003

Sec Enforcement Heuristics: An Empirical Inquiry, James D. Cox, Randall S. Thomas, Dana Kiku

Duke Law Journal

This Article examines the overlap between SEC securities enforcement actions and private securities fraud class actions. We begin with an overview of data concerning all SEC enforcement actions from 1997 to 2002. We find that the volume of SEC enforcement proceedings is relatively modest. We next examine the scope of the recently enacted "Fair Fund" provision that authorizes the SEC to designate civil penalties it recovers from defendants to benefit defrauded private investors. We conclude that this provision offers only limited potential relief for private investors. We complete this Part of the Article with an analysis of the serious resource …

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“Vacation” At Sea: Judicial Remedies And Equitable Discretion In Administrative Law, Ronald M. Levin Nov 2003

“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. …

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Outsourcing Government Regulation, Sidney A. Shapiro Nov 2003

Outsourcing Government Regulation, Sidney A. Shapiro

Duke Law Journal

No abstract provided.

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Remarks On The Presentations By Professors Shapiro And Levin, Mary M. Schroeder Nov 2003

Remarks On The Presentations By Professors Shapiro And Levin, Mary M. Schroeder

Duke Law Journal

No abstract provided.

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