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Patent Infringement, Private Law, and Liability Standards
Get PDFPrivate law governs interactions among private parties. A large body of private law theory holds that private law is aimed at corrective justice: doing justice as between the two parties to a private interaction (the private law dyad). This in contrast to public law, the law of state-citizen interactions, whose purpose is usually said to be the pursuit of society-wide fairness, often understood as distributive justice. Torts, contracts and property are the three classic areas of private law in common law jurisdictions. A sizeable literature now concerns itself with classic private law topics as they apply to intellectual property (IP). Articles, and now a fine monograph,¹ argue that patent law’s strict liability standard is out of touch with modern tort theory, which emphasizes that private law liability must be grounded in fault.
In this Article I enter that discussion with a defense of the current liability regime in patent law, which is a distinct form of “strict liability.” But before wading into those waters, it is first necessary to understand which aspects of patent law belong in the domain of private law in the first place. It is not as simple as saying patents are property and therefore private law applies. This is so because patents, when brought to bear against another private party in an infringement suit, are subject to intensive and rigorous validity review. The business of patent validity— quintessentially in place to protect society, and thus within the public law domain— precedes the true private law part of patent enforcement. The “shallow vesting” of the initial patent grant must be solidified and brought to fruition with the deep, but strictly in personam, vesting of a patent that survives validity review. Between the parties to the private law dyad, plaintiff and defendant, all cloud on the patent owner’s title is removed and the patent enforcement action enters its “private law moment.” The patent at this point forms a solid entitlement capable of serving as a baseline for applying corrective justice as between the parties.
After delineating the private law moment in patent law, I turn to the question of strict liability. After explaining some details about the adequacy of patent notice—in response to a well-known critique of “notice failure” in patent law—I defend strict liability on private law grounds, using two (or two and a half) variants of private law theory, Strict Corrective Justice (“SCJ”) and “Relational Justice,” with points drawn from a third approach to private law called Civil Recourse Theory. The first defense emphasizes parallels between patent infringement and cases on “per se negligence.” It highlights the expansiveness of “fault” in cases where weak warnings are given to highly trained experts held to a very high duty of care (e.g., technology-intensive product sellers who adopt possibly patented technologies). The second defense of strict liability applies the more expansive Relational Justice theory of private law. I explain how the strong norm against misappropriation evident in communities of technological innovators, coupled with an understanding of how difficult it can be to prove direct copying of new technical ideas, points to strict liability in this setting. In keeping with the more holistic emphasis of Relational Justice, I also argue that a negligence rule in patent law would harm the vitality of technical communities. It would cut down on the volume of community-wide technical communication and interaction, as a strategy to avoid infringement liability
From Data Co-opting To Data Co-oping: Using New Corporate Structures, Data Corporate-hood, And Data Personhood To Prioritize Data Privacy
Get PDFThe stakes of information ownership and control have risen dramatically since the Supreme Court’s decision in Dobbs v. Jackson Women\u27s Health Organization, after which tens of millions of people in the United States recognized that companies harvest massive swathes of data incidental to our activities and that seemingly innocuous information, such as rideshare or location data, credit card payments, or even monthly cyclical health trackers (i.e., menstruation or birth control) could potentially expose them to civil or criminal liability when linked to a chain of causation in jurisdictions penalizing voluntary abortion.2 Data scientists recognize the scale, scope, and massive power of corporate and governmental data and meta data access. Legal scholars recognize and debate the Fourth Amendment and other Constitutional implications of data handling by corporate and government actors. Out of view of most legal and data scholars, however, are corporate and other legal frameworks capable of empowering natural persons to exercise greater control over their personal data and metadata through modification of existing, and creation of new, corporate structures and redefining the nature of data.
In response, this Article proposes a US-focused legal framework approach to empower natural persons to take greater control over the corporate and governmental exploitation of their personal data and metadata primarily through the use of existing, but underutilized, legal structures such as data trusts or data co-ops. The Article explores notions of information ownership, information control, and information distribution since the harnessing of electronic transmission systems through cycles of technological change with a focus on individuals’ privacy from corporate and government surveillance. Increasing reliance on technology, both to power and to participate in the contemporary economy and social systems, has required increasingly more interaction with ubiquitous, constantly-connected systems. Such constant interaction and connectivity has provided both private industry and government the opportunity to collect information, both in service of our wants and desires but also to mine, digest, analyze, and exploit how we interact with those systems in service of corporate or government objectives and against the interests of consumers and users. Companies that offer consumers goods and services harvest, not only our communications and correspondence, but also data incidental to our activities, such as information about our physical locations, devices, and networks. The more information about us that is held by others, the more concerning the patchwork of laws, regulations, and common law doctrines that allow for government (as well as corporate and even tech-savvy individuals with selfish, mercenary, or even nefarious, motives) to gain access to information created by and about us, particularly in terms of data held by third parties (i.e., communications network operators and online Internet platforms). However, well-tested legal structures such as trusts or cooperatives, or even modified versions of traditional corporate structures such as C-Corps, LLCs, non-profits, and variations of social enterprises, may empower individuals and community groups to reclaim control over how the data they generate may be collected, stored, analyzed, synthesized, shared, and used. This article proposes that we could establish new-fangled corporate structures, like the Data Co-op, the D-Corp, or the D-LLC, structures that might help to advance data protection in the digital age. Various corporate and quasi-corporate forms, built on concepts of trusts, fiduciaries, and cooperatives, could enable a more collaborative and more accountable approach to data control than traditional corporate forms provide and could better serve to protect individual privacy from corporate and government surveillance and misuse.
Finally, there are profound and evolving concepts surrounding the nature of data, virtualism, and personhood that might inform a new understanding of the nature of data in the digital age and the rights that would inure to data and to virtual and digital persons. To date, legal scholarship has barely scratched the surface of end-user data empowerment through concepts of data corporate-hood and data personhood as means to protect data privacy
The Myth of DNA Trade Secrecy
Get PDFAre DNA sequences subject to trade secrecy protection? At least three decades of scholarship has assumed so even while there is no explicit statutory authority directly on point and very few reported decisions in the area. And yet, an investigation into the elements of trade secrecy law— read in light of rapid advances in DNA and genomic sequencing—suggests the answer is probably, no. Those advances include the rise of cheap, accurate, easy, fast, and readily available DNA sequencing services, including the recent availability of whole human genome sequencing for less than a monthly cell phone bill. This cuts against some of the elements required for trade secret subject matter, namely, whether the sought-to-be protected information is “readily ascertainable” to the public and whether the information derives “independent economic value” from its secrecy. To date, neither caselaw nor scholarly case studies concerning genomic trade secrets have engaged with these advances. Understanding that much genomic data may not be protectable as a trade secret has several practical consequences, including the difficulty of litigating non-trade secret “stolen data” cases in federal fora; variability in enforcing nondisclosure agreements; and diminished remedies for breaches of confidence. More broadly, seeing that technological advances can upend the protectability of information once thought to be a trade secret yields several theoretical insights. It suggests that trade secrets, like some servitudes, can be terminated when faced with changed conditions. It also suggests that several defenses of trade secrecy—ready accessibility, independent derivation, and reverse engineering—are much closer to one another than typically conceived. And it demonstrates, à la the “comedy of the commons,” that work to remove trade secret protection may benefit both the former trade secret holder and the public at large. The omnipresence of next-generation DNA sequencing should spur a serious reexamination of DNA sequences as trade secrets, a belief that courts, policymakers, and scholars should now recognize is largely a myth
The Myth of Slavery Abolition
Get PDFIn many countries today, slavery and the slave trade continue with impunity. International human rights law prohibits both abuses, but states are rarely held accountable and people who are enslaved or slave traded rarely receive redress. This Article offers a novel account of why international human rights law advocacy neglects slavery and the slave trade. Specifically, this Article demonstrates that the abolition of the Transatlantic and East African slave trades was achieved through a legal framework that marginalized the human rights of enslaved persons while consolidating empire. In the wake of World War II, prohibitions on slavery and the slave trade were codified in human rights law, but advocates turned to enforcement under international criminal law, which focuses on individual perpetrators and can paradoxically entrench the structures that perpetuate slavery and the slave trade.
In recent decades, the United States has doubled down on these imperial interventionist strategies, using global power and influence to rebrand human trafficking as “modern slavery” and focusing enforcement on policing international borders while prosecuting individual perpetrators under domestic and transnational criminal law. This Article therefore argues that human rights advocates should press international legal institutions to go beyond combatting human trafficking crimes and to focus additionally on state accountability for wrongs done to the human beings still exploited, enslaved, and slave traded today. Only then can the prohibitions of slavery and the slave trade begin to unlock their emancipatory potential
