Law Commons^™

Redlined Text Of The Leahy-Smith America Invents Act (Aia) And Unrelated Sections Of The Patent Act Pending Enactment Of H.R. 6621, Brian J. Love

Faculty Publications

No abstract provided.

Patent Assertion Entities, Colleen Chien

Faculty Publications

The DOJ and FTC held a workshop on patent assertion entities on Dec 10 2012. This talk gives an overview of the economics, policy of patent assertion entities drawing upon previous and new empirical work. Using pathbreaking, disruptive techniques and capturing economies of scale, PAEs drive down the cost of patent enforcement. PAEs brought 61% of all patent litigations in 2012, representing fewer defendants than in 2011, because of changes in the patent law. 76% of PAE defendants were sued by a PAE that sued more than 15 defendants, and 61% were sued by a PAE that had brought 8 …

The Irony Of Privacy Class Action Litigation, Eric Goldman

Faculty Publications

In the past few years, publicized privacy violations have regularly spawned class action lawsuits in the United States, even when the company made a good faith mistake and no victim suffered any quantifiable harm. Privacy advocates often cheer these lawsuits because they generally favor vigorous enforcement of privacy violations, but this essay encourages privacy advocates to reconsider their support for privacy class action litigation. By its nature, class action litigation uses tactics that privacy advocates disavow. Thus, using class action litigation to remediate privacy violations proves to be unintentionally ironic.

What Is The Fuss About Joint Direct Infringement?: The Saga Of Akamai/Mckesson, Brian J. Love

Faculty Publications

• Summary of procedural history and en Banc holding
• Effect on Litigation in medical devices and computer software fields
• Effect on patent prosecution
• Discussion of dissents: Will this case be taken up by the Supreme Court?

Could A Patent Term Reduction Solve The Software Patent Problem?, Brian J. Love

Faculty Publications

No abstract provided.

Comments On Petherbridge, Et Al., Unenforceability, Brian J. Love

Faculty Publications

No abstract provided.

The Patent Remedy Dynamic [Georgetown-Stanford Conference], Colleen Chien

Faculty Publications

Panel discussion on the NPEs, patent damages, including review of expert testimony, the effect of RAND and other policies on standard-setting cases at the ITC and in district courts, and other patent remedy issues.

Restrictive State And Local Immigration Laws: Solutions In Search Of Problems, Pratheepan Gulasekaram, Karthick Ramakrishnan

Faculty Publications

In the Issue Brief, the authors demonstrate that conventional understandings of why states and localities pass restrictive immigration laws do not hold up under empirical analysis. Rather, the data from their nationwide study of 50 states and over 25,000 local jurisdictions show that “what most subfederal jurisdictions with immigration enforcement laws share is not economic stress or overconsumption of public goods or heightened violent crime, but rather a partisan composition within their legislative and executive branches that is highly receptive to enforcement heavy proposals.” These laws are not, as some have contended, organic local responses to inaction at the federal …

Fraley V. Facebook, United States District Court For The Northern District Of California

Historical and Topical Legal Documents

No abstract provided.

Should Frand Patents Get Exclusion Orders?, Colleen Chien

Faculty Publications

No abstract provided.

In Re Zappos.Com Inc., United States District Court For The District Of Nevada

Historical and Topical Legal Documents

No abstract provided.

Regulating Software Patents, Colleen Chien

Faculty Publications

No abstract provided.

Startups And Patent Trolls, Colleen Chien

Faculty Publications

While patent assertion entities (or patent “trolls”) have received a lot of attention, little of it has focused on the distributional impacts of their demands. The impact on PAEs on startups is crucial, because startups contribute to job creation and innovation, making them potential targets and sources of patents. To assess the impact of trolls on startups, I analyzed a comprehensive database of patent litigations from 2005 to the present, conducted a non-random survey of 223 tech company startups, and interviewed nearly twenty entities with relevant knowledge of startup patent issues.

I find that although large companies tend to dominate …

Reforming Software Patents, Colleen Chien

Faculty Publications

While many believe the patent system has hit a historic and unprecedented low, discontent with patents, and in particular with software patents, is nothing new. In 1966, a Presidential Commission recommended prohibiting software patents because of the PTO’s inability to vet them. In 1883, the Supreme Court railed against “speculative schemers who make it their business to watch the advancing wave of improvement and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax.” In 1836, the Ruggles Report documented how lax patent standards, “encourag[ed] fraudulent speculators in patent rights, deluging the entire …

Who Shot Charles Summers?, Kyle Graham

Faculty Publications

This short piece ties up a loose end from the somewhat famous Torts case of Summers v. Tice. In it, St. Peter considers who, as between Harold Tice and Ernest Simonson, actually shot Charles Summers.

The International Trade Commission And Patent Disputes, Colleen Chien

Faculty Publications

Testimony before the House Committee on the Judiciary. Video of this event available here (requires Windows Media Player): http://judiciary.house.gov/hearings/Hearings%202012/hear_07182012.html

Don't Ask, Don't Tell: Employment Discrimination As A Means For Social Cleansing, E. Gary Spitko

Faculty Publications

In December 2010, President Barack Obama signed into law the “Don’t Ask, Don’t Tell Repeal Act of 2010,” which provided for repeal of the policy prohibiting gay people from serving openly in the military, after consideration of a Department of Defense review on the implementation of such a repeal. This article examines the history of the exclusion of openly gay people from military service in the United States from the early twentieth century up until the time of the repeal. The author concludes from this review that the dominant purpose of the military’s exclusion of openly gay people was to …

Featuring People In Ads, Eric Goldman, Rebecca Tushnet

Faculty Publications

This is a book chapter from a new casebook, Advertising & Marketing Law: Cases and Materials, by Rebecca Tushnet and Eric Goldman. This chapter examines the legal issues arising from featuring people in advertisements, including publicity rights and endorsement/testimonial guidelines.

Rand Patents And Exclusion Orders: Submission Of 19 Economics And Law Professors To The International Trade Commission, Colleen Chien, Richard J. Gilbert, Carl Shapiro, Thomas F. Cotter, Stefania Fusco, Shubha Ghosh, Eric Goldman, Dan L. Burk, Daniel R. Cahoy, Michael A. Carrier, Jorge L. Contreras, Joseph Scott Miller, Michael Risch, Jason Schultz, Ted M. Sichelman, Arti K. Rai, Katherine J. Strandburg, Esther Van Zimmerman, Christal Sheppard

Faculty Publications

In this comment to ITC Investigation 337-TA-745 (Certain Wireless Communication Devices, Motorola v. Apple) we, as teachers and scholars of economics, antitrust and intellectual property, remedies, administrative, and international intellectual property law, former Department of Justice lawyers and chief economists, a former executive official at the Patent and Trademark Office, a former counsel at the ITC Office of the General Counsel, and a former Member of the President’s Council of Economic Adviser take the position that ITC exclusion orders generally should not be granted under § 1337(d)(1) on the basis of patents subject to obligations to license on “reasonable and …

Why Patentable Subject Matter Matters For Software, Brian J. Love

Faculty Publications

Increasingly, courts weary from years of arguing about the scope of patentable subject matter for software patents seem ready to throw in the towel. Rather than continue efforts to craft a test for determining when a software invention graduates from an “abstract idea” or mere algorithm into a patentable invention, several recent Federal Circuit opinions dismissinely reject section 101 challenges as attacks that should have be made instead under sections 102, 103, and 112. This short essay criticizes this recent trend in patentable subject matter jurisprudence. Accused infringers look to section 101 for relief not because doing so is a …

Consumer Lock-In And The Theory Of The Firm, David Yosifon

Faculty Publications

When shareholders invest in a corporation they become “locked-in” to the prospects of that firm. A shareholder cannot force the firm to buy back her shares, nor can she force it to dissolve and turn over her pro rata share of its assets. She gets nothing for her capital unless the firm profits and pays dividends, or she finds someone else willing to buy her stock. Corporate law scholars have recognized that capital “lock-in” is both a corporate law solution that enables large-scale business to flourish, and a corporate law problem that threatens the growth and proper governance of big …

National Federation Of Independent Business V. Sebelius, Supreme Court Of The United States

Patient Protection and Affordable Care Act Litigation

No abstract provided.

New Technology - Old Law: Autonomous Vehicles And California's Insurance Framework, Robert Peterson

Faculty Publications

In 1988 California voters adopted Proposition 103. The Proposition moved California into the group of states that regulates and requires prior approval of all automotive rates. Had it done only this, insuring autonomous vehicles would present only modest challenges.

Proposition 103, however, did much more. It entrenched into California insurance law a number of requirements that are incompatible with autonomous vehicles and the rapidly advancing technology they embody. The Proposition mandates the use of some specific rating factors that determine a vehicle owner’s premium. This rating system makes little sense when applied to self-driving vehicles. The Proposition also mandates a …

Rethinking Patent Disclosure, Colleen Chien

Faculty Publications

No abstract provided.

Best Mode Trade Secrets, Brian J. Love

Faculty Publications

Trade secrecy and patent rights traditionally have been considered mutually exclusive. Trade secret rights are premised on secrecy. Patent rights, on the other hand, require public disclosure. Absent a sufficiently detailed description of the invention, patents are invalid. However, with the passage of the Leahy-Smith America Invents Act (“AIA”) last fall, this once black-and-white distinction may melt into something a little more gray. Now, an inventor’s failure to disclose in her patent the preferred method for carrying out the invention — the so-called “best mode” — will no longer invalidate her patent rights or otherwise render them unenforceable.

In this …

The Anti-Immigrant Game, Pratheepan Gulasekaram, Karthick Ramakrishnan

Faculty Publications

Laws such as Arizona's SB 1070 are not natural responses to undue hardship but are products of partisan politics.

Twitter V. Skootle, United States District Court For The Northern District Of California

Historical and Topical Legal Documents

No abstract provided.

Patent Insurance/Collective Approaches To Managing Patent Risk, Colleen Chien

Faculty Publications

No abstract provided.

Ihl Supplement For Use In Courses In International Criminal Law, Beth Van Schaack

Faculty Publications

This is a teaching supplement on the interface of international humanitarian law (IHL) and international criminal law (ICL). It is designed for use primarily in a course on ICL, but could also be assigned in an IHL course as well. It is part of a series being generated by the Emory International Humanitarian Law Clinic and the International Committee of the Red Cross to enable the teaching of the law of armed conflict in other substantive courses. Additional supplements are being produced for use in courses on constitutional law, national security law, etc.

The Facebook Effect: Secondary Markets And Insider Trading In Today's Startup Environment, Stephen F. Diamond

Faculty Publications

The dismissal of a senior Facebook employee in connection with the purchase of Facebook shares on a private resale trading platform last year raised new concerns about secondary trading in the securities of private companies and insider trading. This practitioner-oriented essay explores these issues and suggests that startup companies consider adopting a variation on the standard insider trading policy widely adopted by public companies. The discussion is important in light of new attention being paid by regulators to insider trading as well as a debate in Congress about barriers to raising capital for smaller companies.