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Patent Trolls and Claim Construction
Get PDFThis Essay explores the largely overlooked relationship between claim construction and patent assertion entities (patent “trolls”), finding that claim construction problems and trends benefit patent assertion entities. First, the Federal Circuit is deeply divided as to the proper approach to claim construction. This split is a significant contributor to uncertain patent scope, which is widely-recognized as a core reason for the rise and success of patent assertion entities. Second, case law and commentary increasingly endorse an approach to claim construction that relies on the “general meaning” in the technical field with limited reliance on the patent itself. This approach increases the breadth and uncertainty of patent scope, the exact conditions under which patent assertion entities thrive. Unsurprisingly, patent assertion entities often rely on “general meaning” arguments. Third, the Supreme Court’s recent adoption of a more deferential standard of review for claim construction in Teva v. Sandoz is widely praised. However, because patent assertion entities file in favorable district courts, like the Eastern District of Texas, deferential review increases both the benefits patent assertion entities receive from favorable districts and their incentive to file in those districts.
If patent assertion entities are as problematic as widely thought, these claim construction problems and trends warrant reconsideration. Some may argue that current claim construction rules and trends are warranted despite their positive impact on patent assertion entities. And other means may exist for combatting patent assertion entities without altering claim construction rules or trends. But the positive effects for patent assertion entities must at least be factored into any cost-benefit analysis of claim construction rules. Moreover, the fact that current claim construction rules and trends produce the conditions under which patent assertion entities thrive suggest that patent assertion entities may be a symptom of larger problems with claim construction doctrine
Cross-Deductions in the Net Investment Income Tax Imposed on a Trust or Estate with Separate Shares
Get PDFPart I of this article first provides a general overview of §§ 1411 and 663(c) and the interaction between them and the respective regulations thereunder and then proposes a revised regulation to clarify the relationship between and among the two sections and their regulations. Part II discusses the possibility of certain cross-deductions under § 1411, in conjunction with §§ 661, 662, and 663(c). Finally, Part III presents and discusses a proposed calculation and allocation, to the separate shares of a trust or estate, of income and deduction items entering into the computation of NII and DNI of the trust or estate
A Haven for International Child Abduction: Will the Hague Convention Shape Japanese Family Law?
Get PDFHarmonizing the Law to Protect Cultural Diplomacy: The Foreign Cultural Exchange Jurisdictional Immunities Clarification Act
No full textThis article analyzes the legislation and litigation associated with the inherent deficiencies between the Foreign Sovereign Immunity Act and the Immunity from Seizure Act. To remedy these defects in the law, Congress introduced the Foreign Cultural ExchangeJurisdictional Immunities Clarification Act. This article further supports the proposed bill for the Foreign Cultural Exchange Jurisdictional Immunity Clarification Act and ultimately concludes that Congress should enact like legislation in order to preserve cultural heritage loans
Some Skepticism about Criminal Discovery Empiricism
No full textThis Response addresses Jenia Turner and Alison Redlich’s comparative analysis of criminal discovery practices in two neighboring states, Virginia and North Carolina. Whereas Virginia adheres to the traditional, category-driven approach, North Carolina requires its prosecutors to disclose the contents of their “file,” with some notable exceptions.
Open-file discovery has quickly become a fertile source of debate among scholars and practitioners. Turner and Redlich have devised a valuable survey to test theoretical claims commonly asserted by open-file discovery’s opponents and supporters. Unsurprisingly, the authors find that disclosure is generally broader in North Carolina (an open-file state) than in Virginia. More notable is the fact that the North Carolina prosecutors who answer the survey seem less opposed to open-file discovery than their Virginia counterparts.
Those who favor the expansion of open-file discovery will find ample cause for celebration in several, but not all, of Turner and Redlich’s findings. In this Response, I express my own reservations, which rest partially on standard concerns with survey data, as well as the fact that some of open-file’s state level success may rely upon the availability of an entirely different criminal justice system (i.e., the federal system) for complex investigations and prosecutions
Wrongfully Convicted in California: Are There Connections Between Exonerations, Prosecutorial and Police Procedures, and Justice Reforms?
Get PDFThe Rise of Private Actors Along the United States-Mexico Border
Get PDFThis Article is about the proliferation of private actors playing a role at the “broken border.” The Introduction of this Article sets out the conceptual framework for the Article and provides the roadmap for each part. Part I examines which private actors and corporations have increased their role at the US-Mexico border. These actors include multinational corporations including Mexican-sited factories (maquiladoras) and US government contractors engaging in national security work, as well as criminal organizations like human smugglers (polleros and coyotes) and drug cartels (narcotraficantes) from the Mexico side, and the border vigilantes, such as the Minutemen and American Border Patrol, on the US side.
Part II then examines the reasons why the role of private actors is expanding. These include various regional attempts by the US, Mexican, and Canadian governments to regulate border trade including NAFTA and the Security and Prosperity Partnership. There have also been bilateral (US-Mexico) attempts to fix the so-called “broken border” like the Merida Initiative. Many of these initiatives have provided a windfall for multinational corporations. Corporations have enjoyed the comparative advantages that come with a regional economy: reduction and elimination of trade barriers, a North American supply chain, and the ability for investors to sue sovereign states for lost profits incurred through nationalization, like takings or expropriation. There have also been many opportunities to contract for the US, Canadian, and Mexican governments.
Part III argues that the expanded activities of private actors should be better regulated, and in the case of criminal organizations, stopped. The broadening of the canvas of individual networks that work along the border provides an opportunity to broaden the canvas of private actors. There are many layers of motive, but economic interest is the overwhelming reason. Finally, Part IV provides some concluding ideas concerning new forms of sovereignty and provides a call for more action among states to secure their respective borders in the context of the wars on drugs and on terror while also facilitating trade through managed borders to provide for economic growth and increased opportunity in legitimate activities
Madonnas and Whores in the Workplace
Get PDFMuch has been written about “lookism” – the preferential treatment given to those who conform to societal standards of beauty. But in a recent case before the Iowa Supreme Court, a gender discrimination plaintiff alleged a sort of “reverse-lookism,” claiming that her male employer terminated her long-term employment because the employee was too physically attractive, thus tempting the employer to think about entering into an extramarital affair. To the great surprise of many who followed this case, the Iowa Supreme Court sided with the employer, declining to find him liable for gender discrimination. As one might expect, uproar ensued, with the media, the public, and the academic community eviscerating the court for its failure to recognize and rectify gender discrimination. In story after story, reporters, academics and pundits framed this decision as one involving an “irresistible woman” and a man’s “uncontrollable lust.” Yet while such characterizations made for catchy headlines, they were not quite true: The court’s decision did not hinge upon outmoded stereotypes regarding gender roles, but rather contained a plausible factual and legal basis for denying the plaintiff’s claim.
This article picks up where the Iowa Supreme Court left off, exploring the complicated reasons behind this employee’s failure to win her case, and suggesting alternate theories under which a similarly-situated employee successfully could challenge this type of termination. The article also probes the reasons behind the vehement (and often misinformed) public reaction to this case. It explores the ways in which the media systematically misrepresents women, particularly in the context of suits involving workplace gender discrimination, and examines the consequences of these errors, arguing that attempts to force women in the public eye into one of two molds – either pure and pristine with muted sexuality, or sexually promiscuous and vilified – has dramatic consequences for other employees in the workplace, for policymakers, and for the public at large
