Science and Technology Law Commons^™

Checking The Staats: How Long Is Too Long To Give Adequate Public Notice In Broadening Reissue Patent Applications?, David M. Longo Ph.D., Ryan P. O’Quinn Ph.D.

Duke Law & Technology Review

A classic property rights question looms large in the field of patent law: where do the rights of inventors end and the rights of the public begin? The right of inventors to modify the scope of their claimed inventions, even after the patent issues, is in direct tension with the concepts of public notice and the public domain. The Patent Act currently permits broadening of claims so long as a reissue application demonstrating intent to broaden is filed within two years of the original patent issue. Over the years, however, this relatively straightforward statutory provision has sparked numerous disputes over …

A Global Panopticon - The Changing Role Of International Organizations In The Information Age, Jennifer Shkabatur

Michigan Journal of International Law

The outbreaks of Severe Acute Respiratory Syndrome (SARS) in 2002-2003 and Swine Flu (H1N1) in 2009 captured a great deal of global attention. The swift spread of these diseases wreaked havoc, generated public hysteria, disrupted global trade and travel, and inflicted severe economic losses to countries, corporations, and individuals. Although affected states were required to report to the World Health Organization (WHO) events that may have constituted a public health emergency, many failed to do so. The WHO and the rest of the international community were therefore desperate for accurate, up-to-date information as to the nature of the pandemics, their …

Commercial High Technology Innovations Face Uncertain Future Amid Emerging "Brics" Compulsory Licensing And It Interoperability Frameworks, Lawrence A. Kogan

San Diego International Law Journal

The pathways that lead to the success of cutting-edge technologies are often fraught with risk, difficulty, and uncertainty. These issues are particularly prevalent under a regime involving lengthy time horizons for competent research, development, and commercialization, which may require regulatory approvals. These challenges are known to be endemic to capital-intensive technology development which requires significant follow-on funding, particularly in highly regulated industries such as life sciences (e.g., pharmaceuticals/biotechnology and electronic medical devices ) and clean technology (which may be subdivided into clean or renewable energy generation and clean or renewable energy efficiency technologies and services, the former having more direct …

Untangling The Web: Exploring Internet Regulation Schemes In Western Democracies, Renee Keen

San Diego International Law Journal

This Comment investigates past censorship schemes proposed and implemented by selected democratic administrations, in order to develop an improved framework and accompanying infrastructure that may accomplish the goals that these policies envisioned, but failed to achieve. The difficulty of this undertaking is in developing the intermediate and legally defensible parameters under which a regulation scheme can endure and gain support in a democratic society. The greater difficulty lies in developing a system that can accomplish these objectives in the burgeoning and ever-changing cyber realm. The challenges posed by Internet activity are novel ones, and the legitimacy of the actions taken …

Workplace Consequences Of Electronic Exhibitionism And Voyeurism, William A. Herbert

Publications and Research

The popularity of email, blogging and social networking raises important issues for employers, employees and labor unions. This article will explore contemporary workplace issues resulting from the related social phenomena of electronic exhibitionism and voyeurism. It will begin with a discussion of the international social phenomenon of individuals electronically distributing their personal thoughts, opinions, and activities to a potential worldwide audience while at the same time retaining a subjective sense of privacy. The temptation toward such exhibitionism has been substantially enhanced by the advent of Web 2.0. The article then turns to the legal implications of electronic voyeurism including employer …

A Nuisance Model For Patent Law, Janet Freilich

Faculty Scholarship

The question of whether damages or an injunction should remedy patent infringement is a highly controversial issue that has been discussed at length in the academic literature. Traditionally, injunctions have been the presumptive remedy for infringement, but this presumption increases holdouts and inefficiency. However, scholars fear that granting damages instead of an injunction will reduce incentives for innovation. In eBay v. MercExchange, the Supreme Court attempted to solve the problem by giving lower courts permission to grant damages instead of an injunction based on equitable principles. However, five years after eBay, lower courts overwhelmingly continue to grant injunctions, in …

"Introduction" (Chapter 1) Of Stories About Science In Law: Literary And Historical Images Of Acquired Expertise (Ashgate 2011), David S. Caudill

Working Paper Series

This is the introductory chapter of Stories About Science in Law: Literary and Historical Images of Acquired Expertise (Ashgate, 2011), explaining that the book presents examples of how literary accounts can provide a supplement to our understanding of science in law. Challenging the view that law and science are completely different, I focus on stories that explore the relationship between law and science, and identify cultural images of science that prevail in legal contexts. In contrast to other studies on the transfer and construction of expertise in legal settings, the book considers the intersection of three interdisciplinary projects-- law and …

Does Legalzoom Have First Amendment Rights? Some Thoughts About Freedom Of Speech And The Unauthorized Practice Of Law, Catherine J. Lanctot

Working Paper Series

At a time of economic dislocation in the legal profession, it is likely that bar regulators will turn their attention to pursuing lay entities that appear to be engaged in the unauthorized practice of law. One prominent target of these efforts is LegalZoom, an online document preparer that has come under increasing pressure from the organized bar for its marketing and sale of basic legal documents. As regulatory pressure against LegalZoom and similar companies continues to mount, it is worth considering whether there may be unanticipated consequences from pursuing these unauthorized practice claims. In several well-known instances, lay people have …

Access To Network Services And Protection Of Constitutional Rights: Recognizing The Essential Role Of Internet Access For The Freedom Of Expression, Nicola Lucchi

Cardozo Journal of International and Comparative Law

In January 2010, after a troubled process, the French law for "creation and Internet," commonly known as "HADOPI 2," was finally adopted in an amended form. The enacted text was the result of corrective action undertaken by the Conseil constitutionnel [Constitutional Council] (France's highest constitutional authority), through Decision No. 2009580DC of the 10th of June 2009. In coming to its conclusion the Conseil constitutionnel examined the mechanism of sanctions introduced by the regulatory measure, assessing compliance with such fundamental rights and freedoms as the presumption of innocence, the separation of powers, the right of defense, the right to fair trial, …

Protecting Anonymous Expression: The Internet's Role In Washington State's Disclosure Laws And The Direct Democracy Process, Karen Cullinane

University of Michigan Journal of Law Reform

This Note proposes that the Washington State Legislature amend its Public Records Act to exempt from public disclosure personal information legally required to be disclosed by signers of referendum petitions. This Note also proposes that the Washington State Legislature designate an electronic system, to be detailed in its election law, by which referendum petitions can be checked for fraud without violating the right to anonymous expression protected by the First Amendment. Part I describes Washington State's referendum process and the path of Doe v. Reed, the case animating the reform presented in this Note. Part II illustrates how the rise …

Digital Copyright And Confuzzling Rhetoric, Peter K. Yu

Faculty Scholarship

The entertainment industry tells people they shouldn’t steal music because they wouldn’t steal a car, but has anybody ever downloaded a car? Music fans praise Napster and other file-sharing services for helping to free artists from the stranglehold of the music industry, but how many of these services actually have shared profits with songwriters and performing artists? Industry representatives claim that people use YouTube primarily to listen to or watch copyrighted contents, but are they missing a big piece of the user-generated content picture? Artists are encouraged to forget about copyright and hold live concerts instead, but can all artists …

Intermediaries And Hate Speech: Fostering Digital Citizenship For Our Information Age, Danielle K. Citron, Helen Norton

Faculty Scholarship

No longer confined to isolated corners of the web, cyber hate now enjoys a major presence on popular social media sites. The Facebook group “Kill a Jew Day,” for instance, acquired thousands of friends within days of its formation, while YouTube has hosted videos with names like “How to Kill Beaners,” “Execute the Gays,” and “Murder Muslim Scum.” The mainstreaming of cyber hate has the troubling potential to shape public expectations of online discourse.

Internet intermediaries have the freedom and influence to seize this defining moment in cyber hate’s history. We believe that a thoughtful and nuanced intermediary-based approach to …

"Going Green" The Wrong Way: How Governments Are Unconstitutionally Delegating Their Legislative Powers In Pursuit Of Environmental Sustainability, Brandon L. Boxler

Legislation and Policy Brief

Through either executive or legislative power, state and local governments are rapidly effecting policies that encourage environmental sustainability.  Many of these policies have logically targeted buildings and infrastructure, both of which have a significant adverse impact on the environment.  In the United States, 38 percent of the nation’s carbon dioxide emissions and 67 percent of its electricity usage come from buildings.  New laws and policies are attempting to decrease these figures by requiring construction projects to “go green” and implement sustainable building practices.  These legal initiatives have the potential to create substantial environmental benefits by reducing energy consumption, greenhouse gas …

Institutional Liability In The E-Health Era, James Williams, Craig Kuziemsky

Canadian Journal of Law and Technology

This paper examines the jurisprudence on institutional liability for medical er- ror. We argue that the existing jurisprudence relies on assumptions that have been made obsolete by technological advances. In particular, we concentrate on the use of information and communication technologies (ICTs) in the health care domain. As we demonstrate, the use of these tools does not merely increase efficiency and support new health care functions; among other effects, ICT can have a profound influence on how health care practitioners make observations, exercise judgment and perform tasks. These tools influence human capabilities (at both the individual and systems level) in …

Overcoming The Digital Tsunami In E-Discovery: Is Visual Analysis The Answer?, Victoria L. Lemieux, Jason R. Baron

Canadian Journal of Law and Technology

New technologies are generating potentially discoverable evidence in electronic form in ever increasing volumes. As a result, traditional techniques of document search and retrieval in pursuit of electronic discovery in litigation are becoming less viable. One potential new technological solution to the e-discovery search and retrieval challenge is Visual Analysis (VA). VA is a technology that combines the computational power of the computer with graphical representations of large datasets to enable interactive analytic capabilities. This article provides an overview of VA technology and how it is being applied in the analysis of e-mail and other electronic documents in the field …

The Internet And Protection Of Children Online: Time For Change, Jill Scott

Canadian Journal of Law and Technology

This article explores the risks for children online and their privacy, with particular focus on the implications of widespread collection, use and retention of data about them. It touches on international standards and national laws that impact Internet activities and the special risk to children’s privacy in today’s ubiquitous computing environment. This is a complex topic that transcends national boundaries and involves both legal and policy issues confronting governments across the world.

Section I provides a brief outline of the online risks for children arising from the scope of data collection and the regulatory challenges of the Internet as it …

Direct-To-Consumer Advertising Of Pharmaceuticals On Television: A Charter Challenge, Elvina C. Chow

Canadian Journal of Law and Technology

The Supreme Court of Canada has consistently wrestled with the conflict between legislation designed to protect consumers’ health and the constitutional guarantee of the fundamental freedom of expression. This paper investigates the justification for the current regulatory framework for pharmaceutical advertising on television. Aware that the provisions in the FDA are able to withstand Charter of Rights and Freedoms (Charter) scrutiny, several possible policy initiations are nevertheless proposed.

The paper is divided into five separate sections. Having first introduced DTCA of pharmaceuticals on television in Section I, I will now turn to a more comprehensive examination of DTCA in Canada …

L'Impact D'Internet Sur Les Paradigmes De La Régulation De L'Audiovisuel, Gilles De Saint Exupéry

Canadian Journal of Law and Technology

Nous nous intéresserons particulièrement à la mutation du paradigme de la régulation de l’audiovisuel classique13 dû à plusieurs facteurs: pour être diffuseur sur les ondes hertzienne il fallait être titulaire d’une licence accordé par l’Etat, sur Internet tout le monde peut l’être à sa guise. Les moyens techniques et financiers ne sont plus une barrière à l’ entrée, le nombre de joueurs qui e ́ tait jusque-là restreint devient, en théorie, incalculable. Le mécanisme de responsabilité mis en place est remis en cause, par la dilution des frontières, l’anonymat, ou l’insolvabilité des diffuseurs. Les modèles d’affaires doivent être revus, le …

Location-Based Services And Privacy, Teresa Scassa, Anca Sattler

Canadian Journal of Law and Technology

In this paper we begin by describing location-based services, their evolution and their future directions. We then outline privacy issues raised by such services. In Part III we consider how current Canadian data protection laws apply to location-based services, and indicate where such laws fall short of addressing the full range of issues raised by location-based services. Part IV of the paper explores some technological methods to address the privacy challenges raised by location-based services. The paper concludes with a series of recommendations.

Electronic Discovery- Sedona Canada Is Inadequate On Records Management - Here's Sedona Canada In Amended Form, Ken Chasse

Canadian Journal of Law and Technology

A paper record can exist without its records system; an electronic record cannot. To use, corrupt, or destroy a paper record, one needs physical access to the records system wherein it is stored. But to use, corrupt, or destroy an electronic record one merely needs electronic access to its records system, from anywhere. Therefore any set of rules or principles for controlling the use of electronic records for any purpose, including electronic discovery, should incorporate the established policies and practices of electronic records management.

As to cost, rules of electronic discovery are needed with which to punish par- ties with …

Lessons From Bilski, Haewon Chung

Canadian Journal of Law and Technology

In this paper, I will examine how the U.S. and Canadian courts have approached the patentability of intangible inventions and discuss whether any lessons can be learned from the U.S.’s patent dilemma. In section 2, I will review the American jurisprudence on patentability of intangible inventions. In section 3, I will discuss the potential impact Bilski may have on the American jurisprudence. Section 4 will assess the Canadian jurisprudence on patentability of intangible inventions. In section 5, I will discuss the Federal Court of Canada’s decision in Amazon/FCC. I argue that based on recent events in the American jurisprudence, Canadian …

Prohibiting Medical Method Patents: A Criticism Of The Status Quo, Mark S. Wilke

Canadian Journal of Law and Technology

Methods of medical treatment are not patentable in Canada. This means that inventions involving the performance of surgery, administration of medicine, or extraction of fluids or tissue for diagnostic tests cannot directly be protected under the current patent regime. However, this prohibition is not an absolute ban. Many medical innovations are patentable, including surgical tools and devices, drugs and other chemical compounds, medical “uses”, diagnostic assays and methods of treat- ing “natural” conditions. The practical reality is that the distinction between what is and what is not patentable is poorly defined. This uncertainty presents a steep challenge for inventors and …

Tax Implications For Non-Residents Conducting E-Commerce In Canada, Mike Nienhuis

Canadian Journal of Law and Technology

This paper focuses on taxation issues faced by non-resident e-commerce companies with no sustained presence in Canada apart from a web site. The tax liability of foreign corporations with a Canadian subsidiary, a physical Canadian office, or Canadian-based employees or agents will not be considered, even though there is substantial overlap in some of the relevant issues. By e-commerce companies we refer broadly to any firms conducting their primary business — whether business- to-business (B2B) or business-to-consumer (B2C) — by means of the internet.

In the first section we outline the framework for Canada’s taxation of non-residents conducting business in …

The Classic 25% Rule And The Art Of Intellectual Property Licensing, Robert Goldscheider

Duke Law & Technology Review

Fifty years ago, Robert Goldscheider helped pioneer the use of a methodology known as “the 25% Rule,” a tool for determining reasonable royalties in intellectual property licensing negotiations. The Rule holds that licensees of intellectual property normally deserve the lion’s share of the profit because they usually bear the bulk of the business risk associated with bringing the intellectual property to market. Experts familiar with the art of intellectual property licensing frequently rely on the 25% Rule to rationally determine reasonable royalties in litigation and transactional settings.

The Rule’s prominence has been accompanied by unfortunate misunderstandings about its form and …

Slides: Introduction To Large-Scale Planning And The Intermountain Bmp Project, Kathryn Mutz

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenter: Kathryn Mutz, Natural Resources Law Center, University of Colorado School of Law

18 slides

Agenda: Best Management Practices (Bmps): What? How? And Why?, Houston Advanced Research Center. Environmentally Friendly Drilling Systems Program, Research Partnership To Secure Energy For America, University Of Colorado Boulder. Natural Resources Law Center. Intermountain Oil And Gas Bmp Project

Best Management Practices (BMPs): What? How? And Why? (May 26)

The Environmentally Friendly Drilling Systems (EFD) Program, managed by the Houston Advanced Research Center, works to identify, develop and transfer critical, cost effective, new technologies that can provide policy makers and industry with the ability to develop natural gas reserves in a safe and environmentally friendly manner. Funding for the EFD Program is through a grant from the Research Partnership to Secure Energy for America, established under the 2005 Energy Act. Within the EFD Program, some projects focus on technologies for developing energy sources in environmentally sensitive areas; others (like the NRLC’s BMP Project) seek ways to reduce the environmental …

Slides: The Costs And Benefits Of Best Management Practices: Insights From The Marcellus Shale, Timothy J. Considine

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenter: Timothy J. Considine, School of Energy Resources, Department of Economics and Finance, University of Wyoming

15 slides

Slides: Bmps For Reclamation: Do We Know What Is Effective?, Peter Stahl

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenter: Pete Stahl, Wyoming Reclamation and Restoration Center

19 slides

Slides: The Economic Benefits Of Completing Initial Reclamation Successfully For Oil And Gas, David Chenoweth, David Holland, Gerald Jacob, Lindsey Kruckenberg, John Rizza, Bryan Whiteley

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenters: Joe Schneider and Colby Reid, Western States Reclamation, Inc.

34 slides

Slides: Arctic Ecosystem Services Measurement And Modeling Project, Eric Biltonen

Best Management Practices (BMPs): What? How? And Why? (May 26)

Presenter: Eric Biltonen, PhD, Environment Economist, Houston Advanced Research Center

8 slides