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Early Filing and Functional Claiming
Get PDFA major problem in the patent system is that many patents claim far more than the patentee actually invented. In his perceptive article, Ready for Patenting, Mark Lemley argues that this overclaiming is caused in part by legal doctrines that encourage inventors to file a patent application as early as possible, often before — or even instead of — building their invention. Patents issued from early-filed applications, Lemley argues, tend to be overly broad because the applicant does not yet know how the invention actually works.
This response essay, part of the Boston University Law Review’s symposium on Notice Failure in Intellectual Property Law, engages Lemley’s article in two ways. First, although it agrees that patent law should, in general, offer more protection to patentees who build their inventions than it offers to mere “paper patentees,” it emphasizes that protecting builders can be costly. Doctrines that encourage inventors to build their inventions before they file a patent application, such as the experimental use doctrine, are fact-intensive to apply and can encourage expensive litigation. By contrast, doctrines that reduce the importance of building the invention, such as the new first-to-file priority rule, are easy and cheap to apply. Although the social costs of overbroad patents that result from early filing might outweigh the expense of occasional, complicated fights over novelty and priority, Lemley’s argument against early filing would be stronger if it engaged the tradeoff between clear rules and fuzzy standards in this area.
Second, the essay builds on Lemley’s argument that functional claiming is a key source of overly broad patent protection by analyzing the effects of the Federal Circuit’s 2015 en banc decision in Williamson v. Citrix Online, LLC, which gave courts new discretion to constrain the scope of patents drafted in functional terms. Recent district court decisions make clear that Williamson provides a ground to narrow or even to invalidate particularly broad, functional patent claims. But the decisions also provide a roadmap for future patent applicants to draft around Williamson’s limits on claim scope. Accordingly, other doctrines, such as the requirement of patent eligibility under § 101 of the Patent Act, will continue to be important to combating overclaiming in patent law
Clinical Legal Education\u27s Contribution to Building Constitutionalism and Democracy in South Africa: Past, Present, and Future
Get PDFClinical Legal Education (“CLE”) courses were first introduced in South Africa nearly fifty years ago. Since then, their role has changed from addressing legal problems perpetrated by an oppressive system, to strengthening South Africa’s transition to democracy. The end of apartheid has been accompanied by a transition of focus from private law to public law. South Africa currently has seventeen public universities, each of which has a law faculty and a legal clinic. Many clinical programs’ missions are primarily dedicated to community service and providing access to justice.Although CLE programs have undertaken some human rights and law reform work, more can be done toincrease law school engagement in these areas. Analyzing data from a survey of clinical directors and associate directors, the authors find ways to maximize the impact of CLE courses on transformative constitutionalism. The authors recommend several types of programmatic integration to increase engagement in law reform work. These positive changes include integrating CLE courses into the law school curriculum and having CLE courses work more closely with the broader public interest legal community
Anthony Amsterdam\u27s Perspectives on the Fourth Amendment, and What It Teaches About the Good and Bad in Rodriguez v. United States
Get PDFAnthony Amsterdam’s article, Perspectives On The Fourth Amendment is one of the best, if not the best, law review article written on the Fourth Amendment. Thus, Minnesota Law Review on its hundredth anniversary fittingly recognizes and honors Professor Amsterdam’s article in its Symposium edition, “Standing on the Shoulders of Giants: Celebrating 100 Volumes of the Minnesota Law Review.” I am flattered that the Law Review invited me to participate in this Symposium./= / \u3e/= / \u3eSpecifically, my article connects two perspectives from Amsterdam’s article — the Fourth Amendment’s concern with discretionary police power and the Framers’ vision of the Fourth Amendment to bar arbitrary and ruleless searches and seizures — to an aspect of modern American society that affects millions of people: traffic stops by the police. This past Term, the Supreme Court decided Rodriguez v. United States. At issue was whether the Fourth Amendment “tolerates a dog sniff conducted after the completion of a traffic stop.” The Court, in a 6-3 ruling, held that “a police stop exceeding the time needed to handle the matter for which the stop was made” violates the Fourth Amendment. While certainly a temporary victory for Mr. Rodriguez, I submit that Rodriguez is a vexing decision on several fronts. As I will explain, Rodriguez is a significant ruling because it rejects the argument that police can prolong a traffic stop to pursue a drug investigation. At the same time, however, Rodriguez blesses two troublesome investigative techniques that have been utilized in the country’s seemingly never-ending “War on Drugs” and that are, in my view, inconsistent with Fourth Amendment freedoms and contrary to Professor Amsterdam’s insights on the amendment./= / \u3e/= / \u3eRodriguez v. United States explained that the Fourth Amendment tolerates certain unrelated investigations that do not lengthen a roadside detention. Rodriguez’s endorsement of police questioning was unnecessary and regrettable. It was gratuitous because the issue before the Court — whether police can detain a motorist to use a drug-sniffing canine after the completion of a traffic stop — had nothing to do with unrelated questioning during a traffic stop. The Court’s comments were lamentable for two reasons. First, the practice of questioning motorists about matters unrelated to the traffic stop is inconsistent with the same legal framework the Court relied upon to invalidate the detention and dog sniff at issue in Rodriguez. Second, there was no reason for the Court to provide its imprimatur on a criminal investigative technique that police regularly use to arbitrarily interrogate motorists during routine traffic stops./= / \u3e/= / \u3eOn a deeper level, Rodriguez’s dicta about police questioning during traffic stops is disappointing for its failure to appreciate the fundamental value of the Fourth Amendment. As Professor Amsterdam has taught us, “the fourth amendment is quintessentially a regulation of the police – that, in enforcing the fourth amendment, courts must police the police.” More specifically, Professor Amsterdam’s article teaches that controlling the discretionary power of officers while they are effectuating searches and seizures is essential to protecting Fourth Amendment freedoms. Police seize millions of Americans every year during traffic stops. Traffic stops are rife with the potential for arbitrary and discriminatory police power. “Once an officer stops a motorist for a traffic offense, the officer has the discretion to transform that traffic stop into an investigation of other serious crimes without the check of reasonable suspicion or probable cause.” If the Justices want to protect the Fourth Amendment rights of millions of American motorists, they should recognize that police interrogation of motorists about subjects unrelated to the reason for the traffic stop provides police with unchecked discretion to pursue a criminal investigation and is beyond the scope of an ordinary traffic stop. /= / \u3e/= / \u3eThis Article proceeds in two parts. Part I explains the result and legal reasoning of Rodriguez. It also explains the legal standard, first announced in 1968, that courts have traditionally used to judge the constitutionality of police conduct during investigative detentions, which includes traffic stops. Part II discusses recent rulings of the Court that have been read to authorize police to pursue criminal investigative practices – such as dog sniffs and interrogation unrelated to the reason for the stop – during ordinary traffic stops, provided those practices do not prolong the traffic stop. Part II also explains why those rulings – Illinois v. Caballes, Muehler v. Mena, and Arizona v. Johnson – have been misread and misapplied to allow arbitrary police interrogation during routine traffic stops
The Sporting Life: Democratic Culture and the Historical Origins of the Scottish Right to Roam
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International Human Rights: Legal, Political, and Policy Framework Applicable to the Extractive Industries
No full textThis overview of international human rights law will describe the legal foundation for the protection of human rights. The relevant documents and international organizations, including the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the International Covenant on Economic, Social and Cultural Rights; the International Labor Organization\u27s Declaration on Fundamental Principles and Rights at Work; the UN Declaration on the Rights of Indigenous Peoples (UNDRIP); and the UN Guiding Principles on Business and Human Rights. Their applicability to business organizations will be placed into context to provide the basis for understanding the duties of business enterprises regarding human rights. The paper also will address the considerations relative to adapting the UNGPs into a binding international treaty
Lincoln\u27s Promise: Congress, Veterans, and Traumatic Brain Injury
No full textPerhaps we were naïve. Our plan was relatively simple: we would chart the legislative evolution of programs for veterans with traumatic brain injuries (TBI) to identify policy gaps for this underserved and vulnerable population. With recent media attention highlighting the U.S. Department of Veteran Affairs (VA) shortfalls for TBI – the “signature injury” of the wars in Iraq and Afghanistan – we hoped to learn whether barriers to care stemmed from a lack of congressional will or operational problems at the VA
Introduction to Thinking about a Post-ACA World: Litigation, Cost Shifting and Enforcement of Statutory Rights
Get PDFAt its annual gathering in 2016, members of the Employee Benefits and Executive Compensation and Law, Medicine and Healthcare Sections of the Association of American Law Schools (AALS) jointly sponsored a discussion of the future of the Affordable Care Act (ACA) following the Supreme Court\u27s decision in King v. Burwell.\u27 What follows are the papers generated for the panel discussion. The panelists2 were asked to evaluate the future of the ACA from a distinct perspective
Reflections of an Empirical Reader (Or: Could Fleming Be Right This Time?)
Get PDFProfessor Jim Fleming’s new book, Fidelity to Our Imperfect Constitution: For Moral Readings and Against Originalisms, purports to critique all forms of originalism from the perspective of Professor Fleming’s “moral reading” of, or “philosophic approach” to, the Constitution. I propose a somewhat different opposition: empirical reading versus moral reading. Empirical reading is necessarily originalist, but it focuses directly on the need to ground interpretation in theories of concepts, language, and communication. In this short comment, I outline the research agenda for a theory of empirical reading, explore the extent to which empirical readings and moral readings of the Constitution are compatible (spoiler alert: it’s an empirical question), and situate empirical reading within the development of originalist theory
How Computer Automation Affects Occupations: Technology, Jobs, and Skills
Get PDFThis paper investigates basic relationships between technology and occupations. Building a general occupational model, I look at detailed occupations since 1980 to explore whether computers are related to job losses or other sources of wage inequality. Occupations that use computers grow faster, not slower. This is true even for highly routine and mid-wage occupations. Estimates reject computers as a source of significant net technological unemployment or job polarization. But computerized occupations substitute for other occupations, shifting employment and requiring new skills. Because new skills are costly to learn, computer use is associated with substantially greater within-occupation wage inequality