Law Commons^™

Essential Collaborative Technology Tools For The 21st Century: Fmcs Tags System , Michael J. Wolf, Jon Numair, Jack Yoedt

Pepperdine Dispute Resolution Law Journal

Mediators employed by the Federal Mediation and Conciliation Service ("FMCS") utilize a powerful set of technology tools that helps groups more effectively solve problems, make decisions and implement those decisions more successfully. FMCS mediators use these tools to help customers conduct collective bargaining negotiations, strategic planning sessions, grievance meetings, internal elections, large conferences, as well as remote meetings and online surveys via the Internet. Known as the FMCS TAGS System, this network of Internet servers, mobile computers, electronic conferencing facilities, customized software and external partners has demonstrated significant achievements during its first two years of operation. FMCS customers report that …

Adultery By Doctor: Artificial Insemination, 1890–1945, Kara W. Swanson

Chicago-Kent Law Review

In 1945, American judges decided the first court cases involving assisted conception. The challenges posed by assisted reproductive technologies to law and society made national news then, and have continued to do so into the twenty-first century. This article considers the first technique of assisted conception, artificial insemination, from the late nineteenth century to 1945, the period in which doctors and their patients worked to transform it from a curiosity into an accepted medical technique, a transformation that also changed a largely clandestine medical practice into one of the most pressing medicolegal problems of the mid-twentieth century. Doctors and lawyers …

After Gina, Nina? Neuroscience-Based Discrimination In The Workplace, Stephanie A. Kostiuk

Vanderbilt Law Review

In 1990, the Human Genome Project ("HGP") was formed to decipher and sequence the human genome, to develop new tools to obtain and analyze genetic data, and to make the information widely available.' Researchers completed the HGP in 2003 with the genetic technology and resources developed providing new opportunities for medical progress. In particular, discoveries about the genetic basis of illness and the development of genetic testing allowed for earlier diagnosis and detection of genetic predispositions to disease. These advances, however, also gave rise to the potential misuse of genetic information, as revealed by genetic testing, to discriminate against and …

A Tale Of Two Sciences, Erin Murphy

Michigan Law Review

It was the best of times, it was the worst of times . .. . So might one describe the contrasting portraits of DNA's ascension in the criminal justice system that are drawn in David Kaye's The Double Helix and the Law of Evidence and Sheldon Krimsky and Tania Simoncelli's Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties. For Kaye, the double helix stands as the icon of twenty-first-century achievement, a science menaced primarily by the dolts (lawyers, judges, and the occasional analyst) who misuse it. For Krimsky and Simoncelli, DNA is a seductive forensic tool that is …

Genetically Correct: The Political Use Of Reproductive Terminology, June Mary Zekan Makdisi

Pepperdine Law Review

No abstract provided.

“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 …

Cyberbullying: What's The "Status" In England?, Krupa A. Patel

San Diego International Law Journal

This comment will explore the growing concern of cyberbullying and will highlight the need for the English Parliament to create its own national anti-cyberbullying legislation, or to incorporate this activity into existing laws as a preventative measure. Part II will define cyberbullying, highlight the various ways in which cyberbullying differs from traditional forms of bullying, and explore specific forms and mediums of cyberbullying to underscore the difficulty in regulating such actions through the law. It will also include illustrative examples of cyberbullying incidents. Part III explores the current laws that English prosecutors are attempting to use to penalize those who …

Will Gene Patents Derail The Next-Generation Of Genetic Technologies?: A Reassessment Of The Evidence Suggests Not, Christopher M. Holman

UMKC Law Review

Judge Bryson recently asserted in Association for Molecular Pathology v. US Patent and Trademark Office (dissenting-in-part) that human gene patents "present a significant obstacle to the next generation of innovation in genetic medicine — multiplex tests and whole-genome sequencing." His concern over the impact of gene patents on genetic testing, which coincides with his position that certain gene patents should be declared patent ineligible, reflects a widely held misperception that 20% of human genes are patented in a manner that would necessarily result in infringement by whole genome sequencing and other forms of genetic testing. In fact, the myth that …

Natural Selection, Irreducible Complexity, And The Bacterial Flagellum: A Contrarian Approach To The Intelligent Design Debate , David Crump

Pepperdine Law 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 …

Lawyers Judging Experts: Oversimplifying Science And Undervaluing Advocacy To Construct An Ethical Duty?, David S. Caudill

Pepperdine Law Review

My focus is on an apparent trend at the intersection of the fields of evidentiary standards for expert admissibility and professional responsibility, namely the eagerness to place more ethical responsibilities on lawyers to vet their proffered expertise to ensure its reliability. My reservations about this trend are not only based on its troubling implications for the lawyer’s duty as a zealous advocate, which already has obvious limitations (because of lawyers’ conflicting duties to the court), but are also based on the problematic aspects of many reliability determinations. To expect attorneys - and this is what the proponents of a duty …

Duck, Duck, Bilski: Searching For A Law-Progress Equipoise, Eric Golas Salbert

The Journal of Business, Entrepreneurship & the Law

Moore's Law generally asserts that the transistor capacity on a computer processing unit increases exponentially over time. To exemplify, in 1971, Intel's first microprocessor contained 2,300 transistors and was used in simple electronic pocket calculators and by 2007 Intel was manufacturing microprocessors containing 820,000,000 transistors used in personal computers capable of near-instantaneous worldwide communication over the Internet. When the framers of the Constitution drafted the empowering words, “To promote the Progress of Science and useful Arts,” could they foresee such a blistering pace of innovation? Have courts been able to maintain the balance between progress and limited monopolies? The history …

Limits On Utility In The Face Of 21st Century Invention: The Problem With Limiting Patent Claims On Est Sequences, Kyle Strache

The Journal of Business, Entrepreneurship & the Law

No abstract provided.

The "Evolving Written Description Doctrine" And The Search For Specificity (A.K.A. Adequacy Is The Matter Of Invention.), Gerald R. Prettyman Jr.

The Journal of Business, Entrepreneurship & the Law

In 1996, the U.S. Supreme Court ruled in Markman that claim construction was a matter of law for the judge to decide. There was hope in the patent bar that Markman would bring uniformity to claim construction and a reduction to the lengthy process of patent litigation. Some authors report instead that the claim construction reversal rate is increasing. Other authors question the consistency of the rulings from the Court of Appeals for the Federal Circuit. Circuit Judge Rader of the Federal Circuit recently named this controversy the “Evolving Written Description Doctrine.” Behind this controversy primarily lies judicial interpretation of …

Best Practices For The Law Of The Horse: Teaching Cyberlaw And Illuminating Law Through Online Simulations, Ira Steven Nathenson

Santa Clara High Technology Law Journal

In an influential 1996 article entitled Cyberspace and the Law of the Horse, Judge Frank Easterbrook mocked cyberlaw as a subject lacking in cohesion and therefore unworthy of inclusion in the law school curriculum. Responses to Easterbrook, most notably that of Lawrence Lessig in his 1999 article The Law of the Horse: What Cyberlaw Might Teach, have taken a theoretical approach. However, this Article—also appropriating the “Law of the Horse” moniker—concludes that Easterbrook’s challenge is primarily pedagogical, requiring a response keyed to whether cyberlaw ought to be taught in law schools. The Article concludes that despite Easterbrook’s concerns, cyberlaw presents …

The Shape Of Things To Come: What We Can Learn From Patent Claim Length, Kristen Osenga

Santa Clara High Technology Law Journal

Technology is always changing. Patent law is also constantly evolving, as the courts and Congress continue to make significant changes to this area of law. But what about patents themselves? Some studies have looked at how patent specifications have changed over time, but no one has looked specifically at the most important aspect of a patent, its claims. Given the changes in technology and law, one would anticipate patent claims to have evolved.

Despite the expectations, this paper concludes that patent claim shape is largely unaffected by time, technology, crowded fields, or prosecution time. This paper suggests a possible reason …

Why We Need A Strong Patent System And When: Filling The Void Left By The Bilski Case, Richard S. Gruner

Santa Clara High Technology Law Journal

Patent law is presently under-theorized. Patents are granted to serve as rewards for certain types of inventive successes, but the nature of the successes to be rewarded, the circumstances that should trigger rewards, and the size of the rewards that will best serve the public remain in substantial dispute. One of the primary reasons for these uncertainties is the incompleteness of underlying theories explaining why patented inventions deserve special treatment and rewards. The lack of good understanding of the theoretical justifications for patent rewards (and the limitations of those justifications) means that patent law standards are being reconsidered and revised …

Trademark And Copyright Enforcement In The Shadow Of Ip Law, William T. Gallagher

Santa Clara High Technology Law Journal

In recent years, as Congress has created new intellectual property (IP) rights and courts have often interpreted those rights broadly, legal scholars have frequently decried the expanded scope of protection afforded IP owners in most substantive areas of IP law. According to this critique, the over-expansion of IP rights throughout the past two decades harms competition, chills free speech, and diminishes the public domain as increasingly broad areas of social life are brought within the scope of strong IP protection. While this over-expansion theory reflects an important—indeed, foundational—policy debate concerning the proper balance between IP owners’ rights and the public’s …

Practical Considerations In The Indirect Deployment Of Intellectual Property Rights By Corporations And Investors, Tom Ewing

UC Law Science and Technology Journal

Competitive pressures and rent-seeking behaviors have motivated companies and investors to develop indirect techniques for beneficially exploiting third-party intellectual property rights (IPRs) that qualitatively depart from the direct exploitation tools honed during the past thirty years of the ongoing pro-patent era. Companies and investors have learned that they do not even need to own IPRs in order to consequently benefit from their exploitation. This phenomenon is labeled here "IP privateering" because of its similarities to an historic method for waging war on the high seas. This Article probes certain practical limitations of this newly identified strategy. Specifically, this Article explores …

Bitcoin: An Innovative Alternative Digital Currency, Reuben Grinberg

UC Law Science and Technology Journal

Bitcoin is a digital, decentralized, partially anonymous currency, not backed by any government or other legal entity, and not redeemable for gold or other commodity. It relies on peer-to-peer networking and cryptography to maintain its integrity. Compared to most currencies or online payment services, such as PayPal, bitcoins are highly liquid, have low transaction costs, and can be used to make micropayments. This new currency could also hold the key to allowing organizations such as Wikileaks, hated by governments, to receive donations and conduct business anonymously. Although the Bitcoin economy is flourishing, Bitcoin users are anxious about Bitcoin's legal status. …

Beyond Confusion - Survey Evidence Of Consumer Demand And The Entire Market Value Rule, Patricia Dyck

UC Law Science and Technology Journal

The doctrine of apportionment serves to limit recovery for patent infringement to the economic value contributed by the infringed patent. However, the entire market value rule allows plaintiffs to base their recovery on the entire value of a product, if an infringing feature of the product is the basis for consumer demand for the product. Large damages awards produced by the application of the entire market value rule have prompted appeals for damages reform. In the recent America Invents Act, the legislature did not address damages reform, noting that the judiciary is currently reinvigorating the doctrine of apportionment. Indeed, the …

Finding A Fit: Gene Patents And Innovation Policy, Erica L. Anderson

UC Law Science and Technology Journal

The district court's decision in Ass'n for Molecular Pathology v. U.S. Patent & Trademark Office (the Myriad litigation) that isolated DNA does not constitute patentable subject matter because the isolated DNA is not markedly different from the naturally occurring DNA sequence redrew the lines of patentable subject matter. The Federal Circuit has subsequently overturned that holding; however, it remains unclear whether gene patents serve the patent system's underlying objective to encourage innovation. For the most part, courts have defined what constitutes patentable subject matter, but as the Myriad litigation demonstrates, courts may not be the best institution to consider these …

Customers, Co-Workers And Competition: Employee Covenants In California After Edwards V. Arthur Andersen, David L. Simson

UC Law Science and Technology Journal

California law is well settled that most contractual provisions prohibiting competing with or soliciting customers of a former employer are unenforceable under California Business and Professions Code 16600, unless the activity involves misappropriation of trade secrets or confidential information. Nonetheless, case law appears to hold that a restriction on one type of post-employment activityhiring away former co-workers-might still be permitted. In 2008, the California Supreme Court once again addressed the scope of section 16600. This Note examines employee nonsolicitation covenants in light of that decision, including whether they remain legally defensible, and whether they retain any value for the employer …

Student Intellectual Property Issues On The Entrepreneurial Campus, Bryce C. Pilz

Michigan Business & Entrepreneurial Law Review

This article examines issues that are more frequently arising for universities concerning intellectual property in student inventions. It seeks to identify the issue, explain the underlying law, identify actual and proposed solutions to these issues, and explain the legal ramifications of these potential solutions.

Energy Subsidies, Market Distortion, And A Free Market Alternative, Hans Biebl

University of Michigan Journal of Law Reform Caveat

Gas and coal are cheap. They are cheap because the U.S. government subsidizes their production. The result is that the marketplace does not recognize the true cost of fossil fuels. Without the subsidies, Americans—for the first time in nearly a hundred years—would experience the cost of unsubsidized fossil fuels. In a newly competitive marketplace, renewable sources of energy would be in a better position to compete. Without gas and coal subsidies, clean energy producers, who have not been able to compete with the low price of fossil fuels, might be more willing to invest in “clean, renewable, and more energy …

"Like" Your President: A Case For Online Voting, Jeremy Garson

University of Michigan Journal of Law Reform Caveat

In the wake of Hurricane Sandy, New Jersey allowed displaced residents to vote in the 2012 elections by email. The option to vote online has been available to military members stationed overseas since 2009. New Jersey’s decision to open online voting to civilians raises the question of why this shift didn’t take place sooner. Assuming New Jersey’s system holds up under post-election scrutiny, why not utilize it to the fullest extent possible? Online voter registration is already permitted by eleven states, including the liberal, infrastructure-rich, population-heavy California and the conservative, sparsely populated Alaska. Extending the registration system to voting itself …

One More Good Reason For In-Car Videotaping Of Traffic Stops: An Accurate Assessment Of "Consent", Robert L. White

University of Michigan Journal of Law Reform Caveat

There are a number of reasons why legislative reform mandating the use of in-car cameras in police cruisers would benefit the criminal justice system in Illinois. In-car cameras provide evidence for cases involving traffic violations or intoxicated motorists. They produce instantly available training materials. They also assist victims of police misconduct, as well as officers defending themselves against misconduct claims. This Comment looks to add to this list of benefits the role in-car cameras can play in assessing the validity of consents to search that officers obtain during traffic stops.

Past Its Prime: Why The Clean Air Act Is In Need Of Modification, Levi Smith

University of Michigan Journal of Law Reform Caveat

The Clean Air Act (CAA) is the primary federal statute regulating the emission of air pollutants. First enacted in 1970, the CAA requires, inter alia, the federal government to establish air quality goals and states to develop implementation plans to achieve those goals. The most stringent requirements of the CAA are imposed on “new” or “modified” sources of pollution, such as sulfur dioxide, nitrous oxides, and particulate matter. Sources that were operating when the CAA was enacted are mostly exempt from regulation under the Act. Because of the substantial costs associated with the CAA standards, there is an incentive for …

High-Frequency Trading: Should Regulators Do More, Matt Prewitt

Michigan Telecommunications & Technology Law Review

High-Frequency Trading ("HFT") is a diverse set of algorithmic trading strategies characterized by fast order execution. Its importance in international markets has increased vastly in recent years. From a regulatory perspective, HFT presents difficult and partially unresolved questions. The difficulties stem partly from the fact that HFT encompasses a wide range of trading strategies, and partly from a dearth of unambiguous empirical findings about HFT's effects on markets. Yet certain important conclusions are broadly accepted. HFT can increase systemic risk by causing or exacerbating events like the "Flash Crash" of May 6, 2010. HFT can also enable market manipulators to …