Intellectual Property Law Commons^™

The New Foundations Of Open Source, Heather Meeker, Stephanie Petit

Santa Clara High Technology Law Journal

The New Foundations of Open Source

Software As Text, John Shaeffer

Santa Clara High Technology Law Journal

Software as Text

Drones And Privacy In The Golden State, Brandon Gonzalez

Santa Clara High Technology Law Journal

Drones and Privacy in the Golden State

Managing Cyberthreat, Lawrence J. Trautman

Santa Clara High Technology Law Journal

Managing Cyberthreat

"Through A Glass, Darkly" Technical, Policy, And Financial Actions To Avert The Coming Digital Dark Ages, Richard S. Whitt

Santa Clara High Technology Law Journal

"Through A Glass, Darkly" Technical, Policy, and Financial Actions to Avert the Coming Digital Dark Ages

The Internet Of Things: Where Privacy And Copyright Collide, Lidiya Mishchenko

Santa Clara High Technology Law Journal

The Internet of Things: Where Privacy and Copyright Collide

A Genre Theory Of Copyright, Omri Rachum-Twaig

Santa Clara High Technology Law Journal

A Genre Theory of Copyright

Indifference And Secondary Liability For Copyright Infringement, Richard G. Kunkel

Santa Clara High Technology Law Journal

Indifference and Secondary Liability for Copyright Infringement

"I'Ll See": How Surveillance Undermines Privacy By Eroding Trust, Robert H. Sloan, Richard Warner

Santa Clara High Technology Law Journal

"I'll See": How Surveillance Undermines Privacy By Eroding Trust

Can Digital Speech Loosen The Gordian Knot Of Reputation Law?, Elizabeth A. Kirley

Santa Clara High Technology Law Journal

Can Digital Speech Loosen the Gordian Knot of Reputation Law?

After O2 Micro: The Court's Evolving Duty To Map Words To Things, Peter E. Gratzinger

Santa Clara High Technology Law Journal

After O2 Micro: The Court's Evolving Duty to Map Words to Things

Direct Digital Engagement Of Patients And Democratizing Health Care, Dov Greenbaum

Santa Clara High Technology Law Journal

Direct Digital Engagement of Patients and Democratizing Health Care

Design Patent Evolution: From Obscurity To Center Stage, Andrew Beckerman-Rodau

Santa Clara High Technology Law Journal

Design Patient Evolution: From Obscurity to Center Stage

Only A Pawn In The Game: Rethinking Induced Patent Infringement, W. Keith Robinson

Santa Clara High Technology Law Journal

Only a Pawn in the Game: Rethinking Induced Patent Infringement

Two Models Of Unpatentable Subject Matter, Alan L. Durham

Santa Clara High Technology Law Journal

Patentable subject matter has become one of the most controversial areas of patent law. Efforts to articulate a lucid and productive theory of patentable subject matter must acknowledge that there are two competing models of unpatentable subject matter. One posits that natural laws, natural phenomena, and abstract ideas are themselves ineligible for patenting, and that each example of a natural law, natural phenomenon, or abstract idea further defines a class of inventions that cannot be patented because they lack an additional element of ingenuity—or “inventive concept”—that sufficiently distinguishes those inventions from their natural counterparts. This “penumbral” model of unpatentable subject …

All That Is Solid Melts Into Air: The Subject-Matter Eligibility Inquiry In The Age Of Cloud Computing, Scott T. Luan

Santa Clara High Technology Law Journal

This article critiques and refines the subject-matter eligibility inquiry in patent law by examining the process of creativity in the context of software-implemented inventions. As a substantive critique of § 101 jurisprudence, this article, informed by copyright law, proposes a working hypothesis for a general structure of the subject-matter eligibility inquiry in which a critical determination is the appropriate level of abstraction for claim construction. As a discursive critique of the limits and limitations of judicial language, this article argues that courts have incorrectly presumed that contemporary legal thought is equipped, conceptually and linguistically, to understand the full significance of …

Reconsidering The Standard For Enhanced Damages In Patent Cases In View Of Recent Guidance From The Supreme Court, Howard Wisnia, Thomas Jackman

Santa Clara High Technology Law Journal

This article examines whether the jurisprudence of the enhanced damages provision found in 35 U.S.C. § 284 should be modified in light of recent Supreme Court decisions that have altered the jurisprudence of the attorney’s fees provision found in 35 U.S.C. § 285. The authors conclude that a revision is needed to the standard for determining whether to award enhanced damages under § 284 and that juries as opposed to judges should determine whether to grant such an award as well as the amount of the award.

Limited Consumer Privacy Protections Against The Layers Of Big Data, Andrew W. Bagley, Justin S. Brown

Santa Clara High Technology Law Journal

Consumers give away their data voluntarily and involuntary through their everyday online interactions. Many of these interactions are governed by “click-wrap” agreements in which consumers agree to data use terms with their Internet service provider (ISP), content provider, or an entire computing ecosystem through various layers of the Internet. This phenomenon effectively means that consumers lose control of their data to an endless web of third party big-data brokers unaccountable to the user. All the while, the increasingly dynamic and valuable nature of datasets makes it difficult to predict how data collected today will be used in the future. To …

Facing Real-Time Identification In Mobile Apps & Wearable Computers, Yana Welinder

Santa Clara High Technology Law Journal

The use of face recognition technology in mobile apps and wearable computers challenges individuals’ ability to remain anonymous in public places. These apps can also link individuals’ offline activities to their online profiles, generating a digital paper trail of their every move. The ability to go off the radar allows for quiet reflection and daring experimentation—processes that are essential to a productive and democratic society. Given what we stand to lose, we ought to be cautious with groundbreaking technological progress. It does not mean that we have to move any slower, but we should think about potential consequences of the …

Reining In Remedies In Patent Litigation: Three (Increasingly Immodest) Proposals, Thomas F. Cotter

Santa Clara High Technology Law Journal

This essay, which builds on my recent work on the law and economics of comparative patent remedies, presents three proposals relating to the enforcement of domestic patent rights. The first, which may be close to being adopted in the United States, is for the courts and the International Trade Commission (ITC) to adopt a general presumption, grounded in patent law and policy, that patent owners who have committed to license their standard essential patents (SEPs) on fair, reasonable, and nondiscriminatory terms are not entitled to permanent injunctions or exclusion orders, but rather only to a damages in the form of …

Who Is The Witness To An Internet Crime: The Confrontation Clause, Digital Forensics, And Child Pornography, Merritt Baer

Santa Clara High Technology Law Journal

The Sixth Amendment’s Confrontation Clause guarantees the accused the right to confront witnesses against him. In this article I examine child pornography prosecution, in which we must apply this constitutional standard to digital forensic evidence. I ask, “Who is the witness to an Internet crime?”

The Confrontation Clause proscribes the admission of hearsay. In Ohio v. Roberts, the Supreme Court stated that the primary concern was reliability and that hearsay might be admissible if the reliability concerns were assuaged. Twenty-four years later, in Crawford v. Washington, the Supreme Court repositioned the Confrontation Clause of the Sixth Amendment as a procedural …

Here, There And Everywhere: Mobility Data In The Eu (Help Needed: Where Is Privacy?), Raffaele Zallone

Santa Clara High Technology Law Journal

European law on data privacy has not clearly developed the concept of mobility data. The evolution of technology has forced the EU to cope with this reality, but so far its legislation lacks a specific focus on this aspect of technology.

A body composed of representatives from the various data protection authorities, the so-called article 29 Working Party (the name stems from section 29 of the European Data Privacy Directive, that calls for the formation and the task of this body) has coped with various aspects of mobile technology, but the documents and analysis it has produced are general and …

A Framework For Designing Co-Regulation Models Well-Adapted To Technology-Facilitated Sharing Economies, Bryant Cannon, Hanna Chung

Santa Clara High Technology Law Journal

Sharing economies, with their vast diversity of goods and services offered and rapidly evolving business models, have proven inconducive to traditional-regulatory approaches. Yet a complete laissez-faire approach or complete ban is not advisable. On the one hand, it is in the public interest to allow these new economies to continue to innovate, as they create value from unused assets, facilitate useful market transactions, and sometimes even lead to the creation of new goods and services to improve quality of life. On the other hand, some characteristics inherent in the design of sharing economies lead to negative externalities, disrupt city planning …

Civil Cyberconflict: Microsoft, Cybercrime, And Botnets, Janine S. Hiller

Santa Clara High Technology Law Journal

Cyber “warfare” and hackback by private companies is a hot discussion topic for its potential to fight cybercrime and promote cybersecurity. In the shadow of this provocative discussion, Microsoft has led a concerted, sustained fight against cybercriminals by using traditional legal theories and court actions to dismantle criminal networks known as botnets. This article brings focus to the role of the private sector in cybersecurity in light of the aggressive civil actions by Microsoft to address a thorny and seemingly intractable global problem. A botnet is a network of computers infected with unauthorized code that is controlled from a distance …

Accountability In The Patent Market: A Duty To Monitor Patent Risk From The Boardroom, Ian David Mcclure

Santa Clara High Technology Law Journal

Patent risk is on the rise; and not just because there is more patent litigation now than ever before. The value of strategic patent management is no longer an unknown or ignored ingredient to corporate success. Nor is proactive and pragmatic patent risk assessment. Shareholders and investors have now caught on that patent management and patent risk affect the value of their equity. This realization has initiated a circuitous life cycle in which more patents are being transacted, divested and strategically managed, resulting in more patent risk for operating companies to monitor. Yet, this last piece—the proactive monitoring of patent …

Long On Rhetoric, Short On Results: Agile Methods And Cyber Acquisitions In The Department Of Defense, Daniel E. Schoeni Usaf

Santa Clara High Technology Law Journal

Cyber warfare has arrived. The Department of Defense (DoD) is under attack, and our security is at stake. Yet in a field defined by its rapid growth, the DoD arms itself at the same pace that that it buys major weapons systems, an acquisition cycle of 7–10 years. It thus buys obsolete cyber-defense tools. The “arsenal of democracy” has already provided us the tools for overcoming this impediment in the form of agile software-development methods. Yet the DoD has been reluctant to set aside decades of experience and utilize different methods for software than it does for other acquisitions. But …

Keeping Up With The Game: The Use Of The Nash Bargaining Solution In Patent Infringement Cases, Lance Wyatt

Santa Clara High Technology Law Journal

Determining damages is an integral stage in the patent litigation process. Since 1970, reasonable royalty damages have been calculated using the factors set forth in the seminal decision Georgia-Pacific Corp. v. United States Plywood Corp. However, these factors are prone to manipulation and abuse by damages experts. To address this abuse, damages experts have utilized a solution to a two-person bargaining situation, the Nash Bargaining Solution (NBS), as a method to calculate reasonable royalty damages in patent infringement cases. Since the introduction of NBS in patent infringement cases, courts have been reluctant to admit the use of the NBS to …

Ids Practice After Therasense And The Aia: Decoupling The Link Between Information Disclosure And Inequitable Conduct, Arpita Bhattacharyya, Michael R. Mcgurk

Santa Clara High Technology Law Journal

The duty to disclose material information to the United States Patent and Trademark Office under 37 C.F.R. § 1.56 (Rule 56) is a critical requirement when prosecuting a patent application in the United States. The failure to disclose information can result in a later ruling of inequitable conduct rendering the patent unenforceable. The Federal Circuit’s en banc decision in Therasense heightened the “materiality” and “intent” standards for finding inequitable conduct. However, there has been much uncertainty in the patent community regarding the future of the duty of disclosure under Rule 56. The majority in Therasense theorized that curing the “plague” …

Can Bruce Willis Leave His Itunes Collection To His Children?: Inheritability Of Digital Media In The Face Of Eulas, Claudine Wong

Santa Clara High Technology Law Journal

In early September, 2012, multiple news agencies reported that actor Bruce Willis was going to sue Apple for the right to pass his iTunes collection to his children upon his death. While the story ultimately proved to be false, it begs the question: Can Mr. Willis actually pass his iTunes songs, legally purchased but subject to a license agreement, to his daughters? We are increasingly acquiring digital music and e-books, copyrighted digital content with legally well-understood physical equivalents. As users pass away, their families are left to wonder if or how they can gain access to the deceased person’s digital …

The Information Privacy Law Of Web Applications And Cloud Computing, Sebastian Zimmeck

Santa Clara High Technology Law Journal

This article surveys and evaluates the privacy law of web applications and cloud computing. Cloud services, and web applications in particular, are subject to many different privacy law requirements. While these requirements are often perceived as illfitting, they can be interpreted to provide a structurally sound and coherent privacy regime. The applicable body of law can be separated into two tiers: the primary privacy law and the secondary privacy law. The primary privacy law is created by the providers and users of cloud services through privacy contracts, especially, privacy policies. The secondary privacy law, contained, for example, in statutes and …