Science and Technology Law Commons^™

Ai/Esq.: Impacts Of Artificial Intelligence In Lawyer-Client Relationships, Chris Chambers Goodman

Oklahoma Law Review

No abstract provided.

Carpenter's Legacy: Limiting The Scope Of The Electronic Private Search Doctrine, Sarah A. Mezera

Michigan Law Review

One of the most significant challenges confronting courts and legal scholars in the twenty-first century is the application of Fourth Amendment doctrine to new technology. The circuit split over the application of the private search doctrine to electronic devices exemplifies how courts struggle to apply old doctrines to new circumstances. Some courts take the position that the old doctrine should apply consistently in the new context. Other courts have changed the scope of the old doctrine in order to account for the change in circumstances. The Supreme Court took the latter position in Carpenter v. United States and held that …

Killer Apps: Vanishing Messages, Encrypted Communications, And Challenges To Freedom Of Information Laws When Public Officials "Go Dark", Daxton R. Stewart

Journal of Law, Technology, & the Internet

Government officials such as White House staffers and the Missouri governor have been communicating among themselves and leaking to journalists using apps such as Signal and Confide, which allow users to encrypt messages or to make them vanish after they are received. By using these apps, government officials are "going dark" by avoiding detection of their communications in a way that undercuts freedom of information laws. This article explores the challenges presented by government employee use of encrypted and ephemeral messaging apps by examining three policy approaches: (1) banning use of the apps, (2) enhancing existing archiving and record-keeping practices, …

Robot Criminals, Ying Hu

University of Michigan Journal of Law Reform

When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions. If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims.

Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability. The former is …

The "Evergreening" Metaphor In Intellectual Property Scholarship, Erika Lietzan

Faculty Publications

This article is a plea for changes in the scholarly dialogue about "evergreening" by drug companies. Allegations that drug companies engage in "evergreening" are pervasive in legal scholarship, economic scholarship, medical and health policy scholarship, and policy writing, and they have prompted significant policymaking proposals. This Article was motivated by concern that the metaphor has not been fully explained and that policymaking in response might therefore be premature. It canvasses and assesses the scholarly literature-more than 300 articles discussing or mentioning "evergreening." It catalogues the definitions, the examples, and the empirical studies. Scholars use the term when describing certain actions …

Risks And Remedies For Artificial Intelligence In Healthcare, W. Nicholson Price Ii

Other Publications

Artificial intelligence (AI) is rapidly entering health care and serving major roles, from automating drudgery and routine tasks in medical practice to managing patients and medical resources. As developers create AI systems to take on these tasks, several risks and challenges emerge, including the risk of injuries to patients from AI system errors, the risk to patient privacy of data acquisition and AI inference, and more. Potential solutions are complex but involve investment in infrastructure for high-quality, representative data; collaborative oversight by both the Food and Drug Administration and other health-care actors; and changes to medical education that will prepare …

The Department Of Justice Versus Apple Inc. -- The Great Encryption Debate Between Privacy And National Security, Julia P. Eckart

Catholic University Journal of Law and Technology

This article is an attempt to objectively examine and assess legal arguments made by Apple Inc. (Apple) and the Department of Justice (DOJ) concerning the DOJ’s use of the All Writs Act[1] (AWA) to require Apple to provide technical assistance to the DOJ so that it could access the encrypted data from the locked iPhone of Syed Rizwan Farook, commonly referred to as the San Bernardino shooter. The DOJ’s initial ex parte application focused on meeting the requirements of United States v. New York Telephone Co.[2] concluding the court order was authorized and appropriate. Apple not only argued …

Auer Deference Should Be Dead; Long Live Seminole Rock Deference, John B. Meisel

Catholic University Journal of Law and Technology

Deference doctrines should be understood in light of the Administrative Procedures Act’s distinction between legislative rules and interpretive rules and should be based on a solid theoretical foundation. Modern Auer deference calls for categorical deference for an agency’s regulatory interpretation of an ambiguous regulation. This is inconsistent with the APA’s characterization of the purpose of an interpretive rule. Properly construed, interpretive rules clarify the meaning of a legal text which should be justified by use of expository reasoning. These rules deserve a lesser form of deference (Skidmore deference), based on an agency’s unique understanding of its own regulations which …

How I Learned To Stop Worrying And Love The Bots, And How I Learned To Start Worrying About Democracy Instead, Antonio F. Perez

Catholic University Journal of Law and Technology

This essay reviewing Striking Power, John Yoo and Jeremy Rabkin's new book on the legal and policy implications of autonomous weapons, takes issue with the book’s assumptions and; therefore its conclusions. The essay argues that, because of technological and ethical limitations, discriminate and effective use of autonomous weapons may not serve as an adequate substitute for traditional manpower-based military forces. It further argues that traditional conceptions of international law could prove more durable than Yoo and Rabkin suggest, and finally it concludes by suggesting that a grand strategy relying primarily on technological elites managing autonomous weapons actually threatens to …

Table Of Contents, Editor In Chief

Catholic University Journal of Law and Technology

No abstract provided.

Let’S Get This Show On The Road: Driverless Cars Have Arrived And It’S Time To Advance The Regulatory Framework, Joshua D. Borneman

Catholic University Journal of Law and Technology

The potential benefits that driverless automobile technology will provide to the U.S. and its roadways are vast. Greatly enhanced safety of American citizens is chief among these benefits. Congressional and administrative support will be required if these benefits are to be completely realized by American society. However, lawmakers are dragging their feet on passing legislation that will allow driverless cars to hit the road in full force. This comment examines the legislative proposals put forth by the House of Representatives and Senate. It argues that the differences between the two versions are inconsequential and urges lawmakers to act in order …

Life Becoming Hazy: The Withdrawal Of The United States From The Paris Agreement And How The Youth Of America Are Challenging It, Anne Ustynoski

Catholic University Journal of Law and Technology

This Comment covers the ways in which each presidential administration has viewed the United States’ role and responsibilities in combating climate change. It discusses the ways in which the Clean Air Act has evolved and changed, as well as the ways in which the United States has been involved in environmental protection initiatives undertaken by the United Nations. The Comment also examines the ways in which individual states and groups have taken the initiative to combat climate change. Finally, this Comment discusses alternative approaches to combating climate change. For example, it focuses on how youths in America are arguing that …

The Itunes Of Downloadable Guns: Firearms As A First Amendment Right, Sandra Sawan Lara

Catholic University Journal of Law and Technology

As society becomes more technology driven, legal issues continue to arise around the world. From privacy to national security, technology develops at a rate the law simply cannot keep up with. In the United States, one of the biggest legal issues is how the new risks technology brings will interfere with our individual liberties.

Technologies like three-dimensional (“3D”) printing have transformed everything from lifesaving surgeries to gun manufacturing. This technology has led to a whole new way of communicating via computer coding, with the online open source movement leading innovation by allowing for the sharing and editing of files freely. …

Implementing Privacy Policy: Who Should Do What?, David Hyman, William E. Kovacic

Fordham Intellectual Property, Media and Entertainment Law Journal

Academic scholarship on privacy has focused on the substantive rules and policies governing the protection of personal data. An extensive literature has debated alternative approaches for defining how private and public institutions can collect and use information about individuals. But, the attention given to the what of U.S. privacy regulation has overshadowed consideration of how and by whom privacy policy should be formulated and implemented.

U.S. privacy policy is an amalgam of activity by a myriad of federal, state, and local government agencies. But, the quality of substantive privacy law depends greatly on which agency or agencies are running the …

Applying Old Rules To New Tools: Employment Discrimination Law In The Age Of Algorithms, Matthew U. Scherer, Allan G. King, Marko J. Mrkonich

South Carolina Law Review

No abstract provided.

The Uncertain Protection Of "Derivative" Trade Secrets, 18 J. Marshall Rev. Intell. Prop. L. 241 (2019), Benjamin Bradford, Remi Jaffre

UIC Review of Intellectual Property Law

This article discusses when a trade secret misappropriation claim can be premised on the acquisition, disclosure, or use of a product or method derived from a trade secret, rather than the acquisition, disclosure, or use of a trade secret itself. Although this question is likely to take on increasing importance as digital products that were made through the use of trade secrets and that can easily be copied become a larger part of everyday life, courts have rarely focused on it and have not come to any consensus. In this article, we survey the existing, inconsistent case law and analyze …

Intersection Of Antitrust Laws With Evolving Frand Terms In Standard Essential Patent Disputes, 18 J. Marshall Rev. Intell. Prop. L. 259 (2019), Claire Guo

UIC Review of Intellectual Property Law

This article addresses the issues of overlapping enforcement of antitrust laws and FRAND (Fair, reasonable and non-discriminatory terms) in standard essential disputes. Briefly, this article observes that the evolving FRAND terms will affect the degree that antitrust laws may intervene into SEP license practice. Part I of this article is a brief introduction to the background and main sections. Part II describes the evolvement of FRAND into a globally converged standard of royalty determination and a process through joint efforts of global courts. Part III discusses the changing interaction of FRAND with antitrust laws in three major jurisdictions, respectively China, …

Nationalizing Trips: An Examination Through Exceptions, 18 J. Marshall Rev. Intell. Prop. L. 285 (2019), Evan Tallmadge

UIC Review of Intellectual Property Law

What should not be patentable? The Agreement on Trade-Related Aspects of Intellectual Property Rights (“TRIPS”) codifies certain categories of subject matter that nations can exclude from patent protection. This Article examines how nations have interpreted these exclusions through an analysis of their national manuals of patent examining procedure and more importantly what explicit exceptions to patentability these countries have listed. The Article proceeds to analyze both the similarities and differences in approaches towards exclusions that attempt to ban the same subject matter from patentability and differences in what countries have chosen to bar from patenting. The Article concludes with an …

The Golden Claims: Necessary Support For Nonprovisional Application Prior Art References To Be Granted Provisional Application Filing Dates During Inter Partes Review Proceedings, 18 J. Marshall Rev. Intell. Prop. L. 326 (2019), Madison Makeever

UIC Review of Intellectual Property Law

Whether to beat an impending disclosure, disclose the most information possible, or simply to get the earliest possible filing date, provisional patent applications are a beneficial way to protect your patent rights. The few formal and statutory requirements allow provisionals to be prepared on a rush basis. The Federal Circuit held in 2017 that published nonprovisional applications can constitute prior art as of its provisional filing date but only as to elements in the application. However, ambiguity regarding published applications in the Federal Circuit’s 2015 precedent for awarding a patent it’s provisional filing date may lead to increased patent invalidation …

There Has Been An Infringement Of My Work And My Circuit Does Not Allow Me To Sue! The Time Has Come To Hash-Out The Federal Circuit Court Discrepancy On Copyright Registration, 18 J. Marshall Rev. Intell. Prop. L. 344 (2019), Thomas Placzek

UIC Review of Intellectual Property Law

The time has come to relieve the ambiguity created by the continued lack of consensus regarding the proper interpretation of 17 U.S.C. § 411(a). The persistent split amongst the various Federal Courts regarding the meaning of § 411(a)’s registration requirement allows some fortunate artists to immediately enforce their rights in a number of jurisdictions, while artists from other jurisdictions are prohibited from immediately enforcing the same rights. Several circuit and district courts subscribe to the “application approach,” while others employ the “registration approach.” This comment delves into the rationale behind the respective approaches, and discusses the arguments made for and …

Abstraction In Software Patents (And How To Fix It), 18 J. Marshall Rev. Intell. Prop. L. 364 (2019), Athul Acharya

UIC Review of Intellectual Property Law

Software has long posed a quandary for patent law. As many have observed, software is an abstract technology—but abstract ideas are supposedly ineligible for patenting. This Article explores just what that means, what it doesn’t mean, and what might fix the problem of abstraction in software patents. This Article offers two related ways to understand the abstract nature of software. First, computer science defines itself as a “science of abstraction,” and that self-definition finds real doctrinal purchase. Second, software code is designed to be what the doctrine calls “functional”—to describe abstract results that can be executed on heterogenous hardware without …

Overcoming Abstract Idea Exception Of Patent Subject Matter Eligibility Under 2019 Revised Patent Subject Matter Eligibility Guidance, 18 J. Marshall Rev. Intell. Prop. L. 382 (2019), Sangik Bae

UIC Review of Intellectual Property Law

This article discusses the judicial abstract idea exception of the current patent subject matter eligibility under 35 U.S.C. § 101. The current § 101 jurisprudence has been heavily criticized by lower courts and patent-stakeholders because it is hard to delineate the scope of the abstract idea exception within the current patent eligibility standard. In response, the United States Patent and Trademark Office (USPTO) issued the 2019 Revised Patent Subject Matter Eligibility Guidance (2019 PEG). This article addresses the issue of whether the 2019 PEG fills the gap in the ambiguity of the test by summarizing the 2019 PEG. Then, the …

The F Word - An Early Empirical Study Of Trademark Registration Of Scandalous And Immoral Marks In The Aftermath Of The In Re Brunetti Decision, 18 J. Marshall Rev. Intell. Prop. L. 404 (2019), Vicenc Feliu

UIC Review of Intellectual Property Law

This article seeks to create an early empirical benchmark on registrations of marks that would have failed registration as “scandalous” or “immoral” under Lanham Act Section 2(a) before the Court of Appeals for the Federal Circuit’s In re Brunetti decision of December 2017 and to briefly examine the possible outcome of the Supreme Court’s grant of certiorari on that case. The Brunetti decision followed closely behind the Supreme Court’s Matal v. Tam and put an end to examiners denying registration on the basis of Section 2(a). In Tam, the Supreme Court reasoned that Section 2(a) embodied restrictions on free speech, …

Scandal In The Us And Australian Wine Industry! Trademarks And Gis As A Consumer Magnet?, 118 J. Marshall Rev. Intell. Prop. L. 421 (2019), Sarah Hinchliffe

UIC Review of Intellectual Property Law

In a dense global market, wine is heavily reliant on catering to the needs of consumers. Consumers, as part of the decision-making process, rely on information – comprising information type, and the way that it is portrayed. This article identifies branding opportunities for New World wineries – particularly in the United States and Australia – to capitalize on without compromising innovation in branding nor breaching IP law. It highlights that wineries in the New World have a plethora of opportunity to create a spunk and pizazz effect in their branding. At the same time, it cautions what wineries should avoid …

The Perspiration Principle,18 J. Marshall Rev. Intell. Prop. L. 463 (2019), Doug Lichtman

UIC Review of Intellectual Property Law

Should copyright be awarded in an instance where a work of authorship lacks inspiration and is instead simply the result of necessary and genuine hard work? Should patents likewise be offered to inventors whose achievements derive not from any flash of genius but from sweat and labor alone? In this Essay, Professor Lichtman revisits the economic case in favor of a "perspiration principle" under which hard work would be a sufficient trigger for intellectual property protection, even in instances where the resulting achievements lack the creative spark that patent and copyright law typically require.

Insolvency And Trademarks: How The Bankruptcy Code's Treatment Of Trademarks Promotes Naked Licensing, 18 J. Marshall Rev. Intell. Prop. L. 475 (2019), Michael Hopkins

UIC Review of Intellectual Property Law

In 1988, Congress amended § 365 of the Bankruptcy Code, which deals with the rejection of executory contracts, in order to allow intellectual property licensees to retain usage rights. However, this amendment did not include adding trademarks to the Bankruptcy Code’s definition of “intellectual property.” As such, Circuit Courts are divided on what remedies are available to trademark licensees following a licensor’s rejection of their agreement. Recently, the circuit split escalated when the First Circuit decided Mission Product Holdings, Inc. v. Tempnology, LLC, which was inconsistent with the Seventh Circuit’s 2014 holding in Sunbeam Products, Inc. v. Chicago American Manufacturing. …

When Enough Is Not Enough: Can Post Filing Experimental Data Bridge The Gap In Patent Disclosure Of Non-Enabling Specifications In The Unpredictable Arts?, 18 J. Marshall Rev. Intell. Prop. L. 496 (2019), Fei Sha

UIC Review of Intellectual Property Law

On issues of 35 U.S.C. §112, the Federal Circuit has been inconsistent in determining the extent to which patent applicants need to disclose examples of their claimed inventions in patent specifications to fully enable their patent claims. Confusion as to how many or what types of examples amount to sufficient disclosure is augmented for inventions in the unpredictable arts, such as chemistry, biotechnology, and pharmaceuticals. Current practice skewing towards disclosure of examples in greater numbers is a misguided effort to satisfy enablement, as shown by patents at issue in two recent Federal Circuit cases. A qualitative approach to disclosure is …

The Forking Phenomenon And The Future Of Cryptocurrency In The Law, 19 Uic Rev. Intell. Prop. L. 1 (2019), Chelsea Button

UIC Review of Intellectual Property Law

In the evolving and ever-changing world of cryptocurrency, new and exciting phenomena arise, including hard forks. Hard forks occur when two groups supporting a cryptocurrency disagree on how the code should evolve. If the changes are incompatible, the code diverges into two chains, essentially doubling the amount of each holder’s coin. Forking a coin is theoretically easy. However, maintaining a fork requires great effort and support by members of the community. This Article discusses the November 15, 2018 Bitcoin Cash hard fork and subsequent lawsuit, analyzing anti-trust, negligence, and conversion claims. Forcing de facto fiduciary duties on developers and miners …

Louboutin Heels And The Competition Goals Of Eu Trade Mark Law, 19 Uic Rev. Intell. Prop. L. 38 (2019), Cesar Ramirez-Montes

UIC Review of Intellectual Property Law

This article critically examines the judicial applications of the EU functionality doctrine and argues that recent CJEU decisions are at odds with the EU legislator’s declared intention to give functionality a much greater role in promoting product market competition. As a statutory ground for refusing registration even in the presence of consumer association and established goodwill, EU functionality serves to avoid undue competitive advantages by refusing protection in support of freedom to compete. EU functionality represents a significant obstacle to registration for purely natural, technical and value adding signs representing the shape of the goods. As of 2015, the wording …

Patent Infringement Under 35 U.S.C. § 271(G) For Goods Made In The United States, 19 Uic Rev. Intell. Prop. L. 64 (2019), Peter Hecker

UIC Review of Intellectual Property Law

Section 271(g) filled a loophole that allowed companies to escape patent infringement by producing goods overseas and then importing them. In filling this loophole, Congress may have unintentionally broadened patent liability for the production and use of goods in the United States. This paper discusses important ramifications of this broadened language and encourages the Federal Circuit or Congress to clarify the extent of patent infringement under Section 271(g).