Science and Technology Law Commons^™

Doninger's Wedge: Has Avery Doninger Bridged The Way For Internet Versions Of Matthew Fraser?, 43 J. Marshall L. Rev. 439 (2010), Adam Dauksas

UIC Law Review

No abstract provided.

Photo Enforcement Programs: Are They Permissible Under The United States Constitution?, 43 J. Marshall L. Rev. 463 (2010), Paul Mcnaughton

UIC Law Review

No abstract provided.

Ramifications Of Joint Infringement Theory On Emerging Technology Patents, W. Keith Robinson

Faculty Journal Articles and Book Chapters

Two cases decided by the U.S. Court of Appeals for the Federal Circuit articulate the standards for joint infringement. In BMC Resources, Inc. v. Paymentech, L.P., the court ruled that to find liability in situations where steps of a method claim are performed by multiple parties, the entire method must be performed at the control or direction of the alleged direct infringer — the mastermind. Approximately one year later, in Muniauction, Inc. v. Thomson Corp., the Federal Circuit clarified that “the control or direction standard is satisfied in situations where the law would traditionally hold the accused direct infringer vicariously …

Enforcement Of U.S. Electronic Discovery Law Against Foreign Companies: Should U.S. Courts Give Effect To The Eu Data Protection Directive?, Kristen A. Knapp

Richmond Journal of Global Law & Business

Enforcing discovery against companies located in foreign nations is not a new phenomenon. The U.S. Supreme Court took up the conflict between U.S. discovery rules and foreign non-disclosure law in a 1958 case. Despite more than fifty years to reach a settled jurisprudence regarding how to enforce U.S. law against foreign domiciled companies, there has yet to be a clear articulation of a standard applicable in all cases. Currently, there are two main sets of rules under which U.S. courts may enforce discovery laws against foreign companies, and if necessary impose sanctions for non-compliance: the Hague Convention and the U.S. …

Opportunistic Evolution: How State Legislation Is Seeking To Redefine Academic Freedom To Permit Intelligent Design In The Classroom, Crystal Canterbury

West Virginia Law Review

No abstract provided.

The Role Of The Subconscious In Intellectual Property Law, Robin Feldman

UC Law Science and Technology Journal

Human behavior stems from a fascinating tangle of conscious and subconscious impulses. Issues resulting from this combination can become relevant in a wide variety of legal contexts, including choosing where to place a burden or whom to hold liable. These nuances are particularly important in intellectual property, as much of it stems from the human mind as it interacts with the natural world as well as previous creations. This piece will consider how Intellectual Property law handles subconscious impulses on the part of participants in the system. Looking at examples from Copyright, Trade Secret, and Patent law, this Article argues …

A Brief History Of The Commercial Speech Doctrine (With Some Implications Tobacco Regulation), Ashutosh Bhagwat

UC Law Science and Technology Journal

The passage of the Family Smoking Prevention and Tobacco Control Act of 2009 delegated substantial new responsibility to the U.S. Food & Drug Administration. Charged with implementation of the Act, the Food & Drug Administration issued a call for public comment on what approaches to take. The University of California, Hastings College of the Law hosted a symposium on the topic in August 2009, at which Professor Ashutosh Bhagwat gave commentary on the areas of tobacco advertising and marketing. This essay is based upon Professor Bhagwat's remarks at this event. Tracing the Supreme Court's jurisprudence of the commercial speech doctrine …

Search Query Privacy: The Problem Of Anonymization, Ron A. Dolin

UC Law Science and Technology Journal

Search queries may reveal quite sensitive information about the querier. Even though many queries are not directly associated with a particular person, it has been argued that the IP addresses and cookies of the users can often be sufficient to figure out who the querier is, especially if tied to information from ISPs regarding IP address assignments at the time of the relevant query. Given that the queries have been subject to discovery both by various governments and third parties, there has been great concern for how to keep such queries private. A typical approach to such privacy legislation, especially …

Injunctive Relief Post Ebay And The Various Applications Of The Four-Factor Test In Differing Technological Industries, Engey Elrefaie

UC Law Science and Technology Journal

In the 2006 opinion for eBay v. MercExchange the Supreme Court struck down the Federal Circuit's blanket rule of granting injunctions for patent infringement. Outlining a four-factored test, the Court declared that injunctive relief should be determined based on "principles of equity." This note discusses the implications of this decision on the biotechnology and software industries, and how lower courts have applied this test to reach varying results.

Reach Through Royalties As A Workaround For Patent Exhaustion, Patrick Hagan

UC Law Science and Technology Journal

Reach through royalties (RTRs) allow companies that license patented research tools to profit from inventions created by others using these tools. Support for RTRs is split; some disfavor them for their potential anti-commons effects, while others believe RTRs provide important services, such as research tool valuation. This piece argues that RTRs should be allowed, outlining their current use in the United States and the financial implications for both tool licensers and researchers.

Acculturating Forensic Science: What Is ‘Scientific Culture’, And How Can Forensic Science Adopt It?, Simon A. Cole

Fordham Urban Law Journal

Part I, describes how the NAS Report characterizes “scientific culture.” I suggest that the described attributes of scientific culture are vague and unspecific, and that more thought is necessary to elucidate how they might map onto forensic science. In Part II, I suggest that the NAS Report’s characterization of “scientific culture” is based on popular accounts of science and “the scientific method.” I suggest that these accounts are incomplete, generally considered obsolete, and not particularly helpful in pointing a way toward reform of forensic science. In Part III, I posit a conception of science as work rather than method. In …

Forensic Science: Why No Research?, Paul C. Giannelli

Fordham Urban Law Journal

The ground-breaking report on forensic science by the National Academy of Sciences—Strengthening Forensic Science in the United States: A Path Forward—raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles—in particular, to support claims with empirical research. This essay attempts to answer the “why” question: Why was there a lack of research across so many forensic disciplines? For purposes of discussion, the time frame is divided into an early period and a recent period. The line of demarcation between the two eras is the advent …

The Nas Report: In Pursuit Of Justice, Geoffrey S. Mearns

Fordham Urban Law Journal

This article discusses the NSA report entitled “Strengthening Forensic Science in the United States: A Path Forward.” It argues that law enforcement officials should embrace the recommendations in the NAS report. The Committee identified many of the systemic problems that plague forensic science, and the report identified thirteen specific recommendations to address these systemic problems.

Gina's Genotypes, David H. Kaye

Michigan Law Review First Impressions

In August 2009, the Board of Trustees of the University of Akron added to the university's employment policy the following proviso: "any applicant may be asked to submit fingerprints or DNA sample for purpose of a federal criminal background check." Although the federal government does not do background checks with DNA, the policy is significant because it highlights a largely unexplored feature of the Genetic Information Nondiscrimination Act of 2008 ("GINA"). Hailed by the late Senator Edward Kennedy as "the first civil rights bill of the new century of life sciences," GINA generally prohibits employers from asking for "genetic information." …

Patenting By Entrepreneurs: An Empirical Study, Ted Sichelman, Stuart J.H. Graham

Michigan Telecommunications & Technology Law Review

[T]he Ewing Marion Kauffman Foundation--an organization that studies and promotes entrepreneurship in the United States--funded an effort at the University of California, Berkeley School of Law, to undertake the first comprehensive survey of the relationship between patenting and entrepreneurship in the United States. The authors, along with other investigators, administered the survey in 2008 to approximately 15,000 startup and early-stage companies in the biotechnology, medical device, information technology (IT) hardware, and software and Internet sectors. A portion of the survey examined why entrepreneurs, startups, and early-stage companies do (and do not) seek patents. This Article reports and analyzes results from …

Media-Rich Input Application Liability, David R. Krohn, Pekarek

Michigan Telecommunications & Technology Law Review

Until recently, media-rich online interactions were mostly unidirectional: multimedia content was delivered by the service provider to the user. Input from the user came almost exclusively in the form of text. Even when searching the Internet for images or audio, a user typically entered text into a search engine. In addition, search engines indexed multimedia content by analyzing not the content itself but the text surrounding it. This is rapidly changing. With the rise of multimedia-capable smartphones and wireless broadband, applications that allow users to search using non-textual inputs are quickly becoming popular. These applications go much further than simply …

Not So Technical: An Analysis Of Federal Circuit Patent Decisions Appealed From The Itc, Holly Lance

Michigan Telecommunications & Technology Law Review

A widespread perception among the patent law community is that the patent system would be more effective if judges with technical backgrounds and patent law experience decided patent disputes. Proponents believe that if judges all had similar baseline knowledge of technological analysis, there would be more consistency in decision-making, leading to more predictability for parties. Some district courts have unofficially become semi-specialized in patent law disputes, and Congress is debating whether to institute a more formalized Patent Pilot Program in which district court judges specialize in patent law cases. This Note joins the debate and examines patent law cases at …

Software Patents Under 35 U.S.C. Sec. 271(F): Should Congress Amend Sec. 271 To Harmonize Protection Between Tangible And Intangible Inventions, Robert A. Mcfarlane, Timothy V. Fisher

UC Law Science and Technology Journal

U.S. Patent laws presumptively apply only to acts committed within this country. Congress has, however, imposed liability for domestic patent infringement based on actions taken, or at least completed, outside the United States. For example, Congress added § 271(f) to the patent statues in 1984 to impose liability for the unauthorized exportation of components of patented inventions to be assembled abroad, even where no infringing acts are completed in the United States. Courts' varying application of § 271(f) to patented inventions in various fields led to inconsistent protections across different technologies. The current article explores this asymmetry in patent protection, …

Concerns Associated With Expanding Dna Databases, Candice Roman-Santos

UC Law Science and Technology Journal

The establishment of DNA databases has been and continues to be a source of controversy. Proponents of DNA databases argue that it supports a discipline that does not rely on subjective judgments and interpretations, and expanding DNA databases will not only help to solve more crimes but also exonerate innocent people who have been wrongly convicted, ultimately reducing the need to reverse previous miscarriages of justice. Opponents of DNA databases, on the other hand, argue that there is a risk of DNA being used to the exclusion of material that might prove the innocence of the suspect. Also, the fact …

The Time And Place For "Technology-Shifting" Rights, Max Oppenheimer

All Faculty Scholarship

Intellectual property policy requires balance between the goal of motivating innovation and the need to prevent that motivation from stifling further innovation. The constitutional grant of congressional power to motivate innovation by securing "for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries" is qualified by the requirement that congressional enactments under the Intellectual Property Clause "promote progress."

The speed of technological change, particularly in the converging fields of computer software, music, video, television, and communications, coupled with the power of technology industry lobbying, have left the statutory balance tilted in favor of rewarding …