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A Jukebox for Patents: Can Patent Licensing of Incremental Inventions Be Controlled by Compulsory Licensing?
Full text linkThe patent system today no longer follows the classic understanding of how it is designed to work. In theory, to avoid infringement, a product developer searches the database of issued patents looking for those that might read onto the product being developed. If such patents are found, the developer can approach the patent holder for a license, can attempt to design around the claims, or can abandon the project. With many hundreds of thousands of patents being issued annually—a rate of issuance almost an order of magnitude larger than a hundred years ago—it is now a practical impossibility to search for collisions. Last year, for example, approximately 760 new utility patents were issued every day. In any major technological area, there are not enough hours in the day to read, understand, and apply the outstanding patents that might cover a new product.
As a consequence of the overwhelming number of new patents (as well as the declining probable validity of them), innovation companies have changed the way they use patents. Recently, for example, a patent practitioner from a major computer firm described his company’s current strategy of using patents as deploying the haystack rather than the needle. Discovering that a particular patent reads onto a competitor’s product is no longer the method of analysis; instead, he wants to be able to throw hundreds if not thousands of patents at any opponent asserting that they are being violated. The financial reality of patent defense makes defending against a single patent costly; doing so against a haystack of them is prohibitively expensive. As the practitioner described it, as long as his haystack is bigger than the other company’s haystack, he is going to win. In effect, therefore, the marketplace for licensing patents no longer works, making it unreasonable to expect the classical patent model to operate.
This paper presents an alternative based on copyright law concepts. As music distribution technology expanded throughout the twentieth century, it became prohibitively expensive for a music copyright holder to trace who was performing the work. In other words, as is now being seen in patents, the viability of one-on-one licensing disappeared. To address this, copyright law creates several licensing mechanisms for different uses of music that establish the royalties that will be owed through an administrative process. An individual who is using recorded music need not seek out the copyright owner for permission to use a work of music; instead, by paying the set royalty, non-infringement is ensured. Most patents today would be better managed by a system of mandatory royalties. This system would have to be sensitive to the field of invention as well as the inventive scope of the patent claims. This paper will present such a system and defines the outlines of how it would work. The system will include most patents, but will allow some exceptions where, for example, the patent owner desires to maintain the patent rights exclusively for the owner’s product or to engage in limited direct licensing
Negative Portrayal of Vaccines by Commercial Websites: Tortious Misrepresentation
Full text linkCommercial website publishers use false and misleading information to create distrust of vaccines by claiming vaccines are ineffective and contain contaminants that cause autism and other disorders. The misinformation has resulted in decreased childhood vaccination rates and imperiled the public by allowing resurgence of vaccine-preventable illnesses. This Article argues that tort liability attaches to publishers of commercial websites for foreseeable harm that results when websites dissuade parents from vaccinating their children in favor of purchasing alternative products offered for sale on the websites
A Statutory Override of an “As Is” Sale: A Historical Appraisal and Analysis of the UCC, Magnuson-Moss, and State Lemon Laws
Full text linkThis Essay considers the common law view that the sale of a used car is essentially “as is,” in light of state lemon laws, which attempt to protect the interests of used car buyers under certain circumstances. The Essay highlights provisions of the New Jersey Lemon Law, which provide specific vehicle and parts coverage, warranty protections, and buyer rights in case the automobile is deemed a lemon, arguing that other states should consider adopting similar legislation in the name of consumer protection. The Essay describes the essence of a traditional “as is” sale, and emphasizes the fact that the “as is” sale would not be operative in cases of consumer fraud by the seller
Parental Alienation Syndrome: Fact or Fiction? The Problem with Its Use in Child Custody Cases
Full text linkParental alienation syndrome is an alleged disorder that was first coined by Dr. Richard Gardner in 1985. Dr. Gardner defined this alleged syndrome as one that arises primarily in the context of child-custody disputes and involves a child’s unjustified denigration against a parent. Although more than thirty years have passed since parental alienation syndrome was first introduced by Dr. Gardner, it is yet to be recognized or accepted in the medical community. Moreover, there are also legitimate questions concerning the alleged syndrome’s admissibility and reliability as evidence in family law proceedings, and the negative effects parental alienation syndrome poses on child custody cases are undeniable. This Note argues that parental alienation syndrome should not be recognized in Massachusetts child custody disputes because it is not a medically recognized syndrome, nor does it pass either of the evidentiary reliability standards used in the Commonwealth. This Note proposes that parties involved in child custody disputes should be educated on the junk science of parental alienation syndrome and informed of the laws available to assist them when issues arise concerning parental behavior that may negatively impact a child
The Problem of Appropriations Riders: The Bipartisan Budget Bill of 2013 as a Case Study
Full text linkThis article tells the story of the enactment of the bill containing Section 2013. It also provides context for Congress\u27s widespread practice of inserting substantive provisions into appropriations bills, and argues that this practice is inappropriate and counterproductive. Enacted in haste, at the end of a lengthy and historically contentious legislative session plagued by threats of an unfunded government, Section 203 was slipped into a bill about a wholly different topic - keeping the government open and functioning - without input from key legislators or stakeholders. Hence, its difficulties were foreseeable.
Part II of this piece offers background about the DMF and its uses, early warnings regarding security problems, and sources of identity theft other than the DMF. Part III uncovers the process of enacting Section 203, the congressional opposition to it, and the adverse consequences of Section 203\u27s enactment. The article concludes that Section 203\u27s enactment, as accomplished by bypassing congressional rules, was both misguided and a diversion from correcting profound governmental failures involving long-term fraudulent use of personal information. This enactment process threatens to exacerbate the public\u27s profound lack of confidence in Congress - the only branch created to be democratic - and to erode core democratic principles. Part VI offers theories, based in both law and equity, that challenge the current process to revive some confidence in government
Keeping it REAL: Why Congress Must Act to Restore Pell Grant Funding For Prisoners
Full text linkIn 1994, Congress passed the Violent Crime Control and Law Enforcement Act (VCCLEA), a provision of which revoked Pell Grant funding “to any individual who is incarcerated in any federal or state penal institution.” This essay highlights the counter-productive effects this particular provision has on penological goals. The essay suggests Congress acknowledge the failures of the ban on Pell Grant funding for prisoners, and restore such funding for all qualified prisoners
Once We\u27re Done Honeymooning: Obergefell v. Hodges, Incrementalism, and Advances for Sexual Orientation Anti-Discrimination
Full text linkUndoubtedly, the Supreme Court’s marriage equality decision in Obergefell v. Hodges is the watershed civil rights decision of our time. Since U.S. v. Windsor, each recent victory for same-sex couples in the federal courts evidenced that the legal recognition of same-sex marriages in the U.S. was becoming increasingly secure. Meanwhile, momentum was growing for the visibility of sexual minorities nationally. Yet, is marriage equality the last stop in the pro-LGBTQ movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality from Windsor to Obergefell can somehow leverage broader protections for LGBTQ individuals beyond their marital relationships? This Article begins from the perspective that the marriage equality movement is an increment in the longer process for securing legal protections for sexual minorities. Currently advancements in sexual orientation antidiscrimination have been less even, and now that marriage equality is finally secured, progress for protecting sexual minorities should navigate toward reforms reflected in federal anti-discrimination laws. Although many of the judicial victories in the marriage cases have been specifically effective toward recognizing the relationships of same-sex couples, there have also been some significant judicial strides from post-Windsor cases and Obergefell that could be instrumental for furthering progress in areas of sexual orientation anti-discrimination. This Article discusses how such judicial advances ultimately bolster autonomy rights in sexual identity that anti-discrimination laws, specifically Title VII, ought to protect, but currently do not
Preventing Neonatal Abstinence Syndrome within the Opioid Epidemic: A Uniform Facilitative Policy
Full text linkThe United States is currently in the midst of an opioid epidemic that has hit states in the southern New England regions particularly hard — with Massachusetts as one primary example. One of the many unfortunate results of the epidemic is a dramatic upsurge in cases of opioid dependency by expectant women that result in children born with Neonatal Abstinence Syndrome (NAS). NAS is a clinical syndrome that occurs when a newborn suffers withdrawal symptoms as a consequence of abrupt discontinuation of prenatal substance exposure. The expenses of treating and rehabilitating these drug-dependent newborns, predominantly shouldered by state taxpayers, are extremely costly, with a mean cost per stay of $93,400 for pharmacologically-treated cases. This Article illustrates a policy, grounded in facilitative principles, designed to reduce incidents of NAS. Key components to the solution’s success should rely on early identification of opioid abuse or dependence during pregnancy, as well as adherence to a standardized protocol implemented uniformly throughout public hospitals state-wide. The Article concludes by reemphasizing the importance of acting promptly and assertively to protect society’s most vulnerable members from the tragic epidemic
Brief of \u3cem\u3eAmici Curiae\u3c/em\u3e Residents and Families of Residents at Homes of The Little Sisters of the Poor in Support of Petitioners
No full textFor almost 150 years, the Little Sisters of the Poor in the United States have provided an incomparable loving environment for elderly poor people, many of whom have nowhere else to go. The Little Sisters’ religious beliefs inspire them to give up their lives for this work, but they don’t force their religion on others; they provide this irreplaceable service regardless of religious affiliation, condition of dependency, or ability to pay. Now the Little Sisters are being told by the federal government that if some employee wants free contraceptives, they must facilitate -- in violation of their religiously informed consciences -- or face huge fines that would endanger their ability to carry out their mission of mercy. Because of their overwhelmingly positive experiences at homes of Little Sisters of the Poor, amici residents and their families want to support in the strongest way possible the continuation of the Little Sisters’ invaluable work