Law Commons^™

Describing Patents As Real Options, Christopher A. Cotropia

Law Faculty Publications

This Article continues the use of real options in patent law by taking a step back. The Article proceeds in three parts. Part II describes the concept of real options and catalogs the existing economics and law literature discussing patents as real options. The Article then lays a foundation for previous and future discussions by describing in detail how patents are like real options. Specifically, Part III. identifies the particular patent doctrines that make up the common components of a real option-the option price, the exercise price, the expiration date, and the value of the underlying asset. This descriptive analysis …

The Unreasonableness Of The Patent Office's 'Broadest Reasonable Interpretation' Standard, Christopher A. Cotropia

Law Faculty Publications

This article does what is long overdue: it fully explores the validity of the BRI standard. The previously articulated rationales behind the BRI standard are severely lacking. Not only does the BRI standard fail to provide the advantages touted by the courts that created the standard, the standard is contrary to both the patent statutes and the concept of a unitary patent system. It allows examiners to avoid difficult claim interpretation issues; it leads to improper and uncorrectable denials of patent protection; and it is incurably ambiguous. Given that the BRI standard is severely lacking, the courts and the USPTO …

Modernizing Patent Law's Inequitable Conduct Doctrine, Christopher A. Cotropia

Law Faculty Publications

This Article's main finding is that the inequitable conduct doctrine has the ability to improve patent quality as long as the inherent tendency to overcomply with the doctrine by overloading the USPTO with information is kept in check. The Article reaches this conclusion by proceeding in five parts. Part II describes the current thinking on the inequitable conduct doctrine, with particular focus on the major critiques of the doctrine and proposed legislative and administrative responses. Part III of the Article begins the construction of a fundamental, conceptual framework for the doctrine by explaining how it impacts both patent quality and …

Biblical Interpretation, Constitutional Interpretation And Ignoring Text, Henry L. Chambers, Jr.

Law Faculty Publications

Much is made of how to interpret the Constitution. The Constitution is foundational and its law is the highest law in the land. Consequently, interpreting the Constitution correctly is important, not only so that the Constitution's words are honored but so that its ideals are honored. Similar desires accompany the interpretation of other important documents. Indeed, how a sacred text like the Bible is or can be interpreted may shed light upon how the Constitution could be or should be interpreted. This brief Essay considers how a particular vision of Christian biblical interpretation can inform constitutional interpretation. This Essay does …

Recent Developments In Patent Law, Kristen Jakobsen Osenga

Law Faculty Publications

In the last year, the landscape of patent law was altered by court opinions from the Supreme Court and U.S. Court of Appeals for the Federal Circuit, as well as in opinions rendered by the Board of Patent Appeals and Interferences (hereafter BP AI) at the United States Patent and Trademark Office. In addition, patent reform legislation was introduced that could have shaken up patent practice even further. Although none of the reform proposals were passed, revised versions of these legislative initiatives have already been introduced in 2009. This brief write-up summarizes many (but by no means all) of the …

Filling Federal Appellate Vacancies, Carl W. Tobias

Law Faculty Publications

Judicial selection for the United States Courts of Appeals has rarely been so controversial. Delay in nominating and analyzing candidates as well as fractious accusations, recriminations, and "paybacks" between Democrats and Republicans have vexed circuit appointments over two decades. Many judgeships remain empty for long periods, while one position has been vacant since 1994. Certain appellate tribunals have confronted acute difficulties. The U.S. Court of Appeals for the Sixth Circuit recently operated absent half its judicial complement across eight months, and numerous courts labored without one in three members at various junctures.

The Senate, which furnishes advice and consent, has …

The Unmerry Widow: Spousal Disinheritance And Life Insurance In North Carolina, Jeffrey S. Kinsler

Law Faculty Scholarship

In spite of our nation’s long-held public policy of protecting surviving spouses, some people purposely disinherit their spouses. For centuries, North Carolina more or less tolerated intentional spousal disinheritance. In 1959, in an effort to protect surviving spouses from deliberate disinheritance, North Carolina adopted a “right of dissent” statute that authorized a surviving spouse to renounce the decedent spouse’s will and receive a statutorily prescribed share (ranging from one-sixth to one-half) of the decedent spouse’s probate estate. Because the dissent statute was limited to the decedent spouse’s probate estate, it was easily circumvented through the use of non-probate transfers. In …

Lost In The Maze Of Appeals: The Eleventh Circuit's Review Of Decisions By The Board Of Immigration Appeals, Amy L. Moore

Law Faculty Scholarship

The Eleventh Circuit reviews decisions made by the Board of Immigration Appeals with a very lenient substantial evidence test that incorporates the idea of compulsion. In other words, the record must compel an opposite conclusion for a decision to be overturned as opposed to merely being unsupported by substantial evidence. This article details the job of the Board of Immigration Appeals, the types of claims it hears, and the types of review applied to it by the Eleventh Circuit. A study of 251 cases from 1990 through 2008 suggests that the Eleventh Circuit hardly ever overturns the Board of Immigration …

The Constitutional Future Of Race-Neutral Efforts To Promote Diversity And Avoid Racial Isolation In Our Elementary And Secondary Schools, Kimberly J. Robinson

Law Faculty Publications

In 2007, the U.S. Supreme Court ruled in Parents Involved in Community Schools v. Seattle School District No. 1 that the racial classifications used by school districts in Seattle and Louisville to create diverse schools were unconstitutional. Justice Kennedy provided the deciding vote but also noted that school districts could pursue diversity and avoid racial isolation through race-neutral alternatives. He asserted that it was unlikely that race-neutral alternatives would be subject to strict scrutiny but articulated no rationale for this assertion. This Article argues that, after Parents Involved, school districts will focus on race-neutral efforts to create diverse schools …

Resolving Amicus Curiae Motions In The Third Circuit And Beyond, Carl W. Tobias

Law Faculty Publications

Amicus curiae briefs are deeply woven into the fabric of modern federal appellate practice. Indeed, amici curiae submit briefs in approximately ninety percent of the cases that the United States Supreme Court entertains, and the Justices deny a minuscule number of amicus requests to participate. Amicus practice is less ubiquitous in the United States Courts of Appeals. Amici seek to file comparatively few briefs, nearly all of which the appellate courts permit, while many tribunals have not developed a comprehensive jurisprudence for resolving amicus motions. Nonetheless, the United States Court of Appeals for the Seventh Circuit has articulated rather stringent …

The Game Is Afoot: Constitutionalizing The Right To Hunt And Fish In The Tennessee Constitution, Jeffrey Omar Usman

Law Faculty Scholarship

The normative role of state constitutions, which are simultaneously paramount state law and inferior to the whims of even the most minor federal regulation, is a matter of some uncertainty. In recent years, state constitutions have been significantly affected by another wave of popular constitutionalism. As part of this movement, since 1996, seven states have adopted constitutional provisions guaranteeing a right to hunt and fish. This article explores the constitutionalization of hunting and fishing rights under state constitutions. It begins by tracing hunting and fishing rights through western legal history with a special emphasis on Ancient Rome, England, and the …

Volume 59 Issue 3 (2009), Case Western Reserve Law Review

Case Western Reserve Law Review

No abstract provided.

Exploring The Affective Constitution, Kathryn Abrams

Case Western Reserve Law Review

No abstract provided.

Institutional Investors And Their Role In Corporate Governance: Reflections By A "Recovering" Corporate Governance Lawyer, David P. Porter

Case Western Reserve Law Review

No abstract provided.

Modifying The Religious Land Use And Institutionalized Persons Act To Create A Constitutional Statutory Protection For Religious Landowners, Sara Witt

Case Western Reserve Law Review

No abstract provided.

Access To Courts And Preemption Of State Remedies In Collective Action Perspective, Richard E. Lee, Robert L. Gicksman

Case Western Reserve Law Review

No abstract provided.

Cast Back Into "Tempest-Tost Waters": "The Uncharted Seas" Of Private Medical Repatriations, Sarah E. Greenlee

Case Western Reserve Law Review

No abstract provided.

Conflicts And Financial Collapse: The Problem Of Secondary-Management Agency Costs, Steven L. Schwarcz

Faculty Scholarship

Corporate governance scholarship has long focused on conflicts of interest between firms and their top executive officers. This Essay contends that increasing leverage and financial complexity make it important for scholars to also focus on conflicts of interest between firms and their secondary managers.

Distribution Of Funds In Class Actions - Claims Administration, Francis Mcgovern

Faculty Scholarship

Most class action securities cases result in a settlement where the parties agree on a defined amount of money to be placed in a fund for distribution to eligible beneficiaries. Although the size of the fund and the losses suffered by eligible beneficiaries are defined, the number of potential beneficiaries who decide not to participate in the settlement by opting out and the number and value of losses eventually claimed by those eligible beneficiaries are not known until long after the settlement amount has been established. In any closed-end fund, like the securities class action settlements, there is the potential …

A Federal Constituency For Belgium: Right Idea, Inadequate Method, Donald L. Horowitz

Faculty Scholarship

The survival of the Belgian state is an important matter—and not just to Belgium. If, in the physical and administrative heart of Europe, groups that have lived together peacefully for nearly two centuries decide that they must part, what does that say about the prospects for more fragile, more recently constructed democracies? Partition and secession are generally bad answers to serious ethnic conflict, answers that usually have an array of negative consequences (Horowitz 2003). For this among other reasons, the proposal of the Pavia Group is to be commended. It aims to break the deadlock in Belgian politics and provide …

Surveillance And The Political Value Of Privacy, Benjamin J. Goold

All Faculty Publications

The steady expansion in the use of surveillance technologies by the state and private sector represents a substantial threat to the privacy of ordinary individuals. Yet despite the best efforts of civil libertarians, many members of the public still struggle to understand why privacy is valuable and deserves to be protected as a basic right. In part, this is a result of the inherent complexity of the idea of privacy, but it is also due a tendency on the part of privacy advocates to focus on the individual - as opposed to the social and political dimensions - of privacy. …

Corporate Environmental Reporting And Climate Change Risk: The Need For Reform Of Securities And Exchange Commission Disclosure Rules, Constance Z. Wagner

All Faculty Scholarship

This article argues for strengthened Securities and Exchange Commission (“SEC”) rules mandating the disclosure by businesses of the impacts of climate change on their operations. The author surveys the existing SEC regulatory scheme and concludes that it is insufficient since few companies are currently disclosing climate change risks in their SEC filings. Alternative approaches to filling the environmental risk disclosure gap are examined, but found to be poor alternatives to enhanced SEC requirements, since they fail to provide a scheme for uniform and consistent disclosures across companies.

Playing The Slots: The Faa Gambles With Its Controversial Congestion Management Plan For New York's Busiest Airports, Benjamin D. Williams

Journal of Air Law and Commerce

No abstract provided.

Recent Developments In Aviation Law, Donald R. Andersen

Journal of Air Law and Commerce

No abstract provided.

The Game Of Conservation: International Treaties To Protect The World’S Migratory Animals, Mark Cioc

Ohio University Press Open Access Books

The Game of Conservation is a brilliantly crafted and highly readable examination of nature protection around the world.

Twentieth-century nature conservation treaties often originated as attempts to regulate the pace of killing rather than as attempts to protect animal habitat. Some were prompted by major breakthroughs in firearm techniques, such as the invention of the elephant gun and grenade harpoons, but agricultural development was at least as important as hunting regulations in determining the fate of migratory species. The treaties had many defects, yet they also served the goal of conservation to good effect, often saving key species from complete …

140th Anniversary Symposium: Fourteenth Amendment Citizenship And The Reconstruction-Era Black Public Sphere, James Fox

Con Law Center Articles and Publications

This project delves more deeply into the possible meanings of constitutional citizenship.. Somewhat in the tradition of the popular constitutionalism scholars, it proposes that the best source for meanings of constitutional citizenship will come not from traditionally originalist sources but from those who attempted to redefine citizenship in a more egalitarian and democratic manner and who established, both in word and in practice, meanings for citizenship on the ground. This argument borrows a theoretical framework from political and social theory: the theories of civil society and the public sphere. This captures—in ways often missed by both legal scholars and historians—the …

From Environment To Energy: China's Reconceptualization Of Climate Change, Dongsheng Zang

Articles

Domestically and internationally, by the first half of 2009 it was already questionable whether the Copenhagen Conference could achieve anything. Anthony Giddens warned-in an otherwise inspiring book on climate change-that "doomsday is no longer a religious concept, a day of spiritual reckoning, but a possibility imminent in our society and economy." In such a context, it becomes imperative to revisit some of the fundamental issues in the Kyoto Protocol framework. Are timetables and targets really the best way to regulate climate change? Does the current framework create bad politics? Where are the powerful driving forces towards a low-carbon society?

This …

Tax Shelters And Statutory Interpretation: A Much Needed Purposive Approach, Shannon Weeks Mccormack

Articles

Few are unaware that the Tax Code and Regulations provide a detailed, complex (and lengthy) set of rules. It is hardly surprising (or new) that taxpayers attempt to avoid these rules to lower their taxes. Courts and lawmakers have long grappled to identify abusive transactions and strip taxpayers of the associated tax savings. The transactions have, however, changed dramatically over the last decade making the task much more challenging. The rapid proliferation of aggressive and diverse tax shelters has created what many refer to as a tax shelter war. In general, tax shelters refer to transactions carefully designed to fit …

Conditions And Covenants In License Contracts: Tales From A Test Of The Artistic License, Robert W. Gomulkiewicz

Articles

Pity the poor Artistic License version 1.0 (ALv1). The Free Software Foundation criticizes the license as “too vague” with some passages “too clever for their own good.” The Open Source Initiative suggests that it has been “superseded.” ALv1’s authors at the Perl Foundation even acknowledge its flaws.

Yet it is the ALv1, not the venerable GNU General Public License (GPL), which the Federal Circuit upheld in Jacobsen v. Katzer [535 F.3d 1373 (Fed. Cir. 2008)], establishing at long last that open source licenses are enforceable. Although that outcome received most of the headlines, the case’s greater significance lies elsewhere.

Jacobsen …

Hiding Behind "Tradition"? Should U.S. Vessel Traffic Centers Exercise Greater Direction And Control Over Vessels In Their Areas?, Craig H. Allen

Articles

In the alermath of the 2007 COSCO BUSAN allision and oil spill, some asked whether United States Coast Guard Vessel Traffic Service (VTS) operators monitoring the developing incident should have intervened explicitly to wam the vessel or even order it to take avoiding action.

The controversy called to mind a speech by a former IMO secretary-general in which he suggested that those resisting greater shore-based control were "hiding behind tradition." In its investigation of the COSCO BUSAN incident, the National Transportation Safety Board (NTSB) urged the Coast Guard to better define its expectations regarding the exercise of VTS control authority …