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Proportionality Defenses in FRAND Cases - A Comparative Assessment of the Revised German Patent Injunction Rules and US Case Law
Get PDFA new defense against injunctions in FRAND cases has arisen in Germany, and its relationship to the Huawei defense (whether viewed as a competition or contractual matter) is largely unexplo-red. In August 2021, the “Second Act for the Modernization of Patent Law” (Zweites Pa-tentrechtsmodernisierungsgesetz) took effect and modified the German Patent Act (GPA) in sever-al respects. Pertinent to our topic is an amendment to § 139(1) GPA which introduced an expli-cit proportionality defense against injunction claims. The new proportionality mechanism con-sists of three main elements: First, § 139(1)(3) GPA excludes the claim to an injunction in case of patent infringement to the extent such injunction would result, due to the particular circum-stances of the individual case at issue and with a view to the principle of good faith, in a hards-hip for the infringer or third parties that would be disproportionate and not justified by patent exclusivity. Second, § 139(1)(3), (4) GPA entitle the patentee to appropriate financial compensa-tion if the injunction is denied, without prejudice to its other claims for damages. Third, § 142(7) GPA exempts an infringer from penal law sanctions to the extent § 139(1)(3) GPA excludes an injunction. This article offers to market participants and the judiciary a proposed analytical framework for considering such a proportionality defense in German FRAND cases. While the introduction of this new defense presents various additional issues, we focus primarily on three aspects: (1) whether the proportionality defense and the FRAND license defense can be raised in parallel, (2) whether FRAND royalties are a suitable basis for calculating the appropriate finan-cial compensation in the sense of § 139(1)(4), and (3) how a court should assess whether the impact of an injunction in a FRAND case is disproportionate and not justified by the exclusivity conferred on the patent holder. In formulating an analytical framework to address the latter question, we also consider whether the injunction law of the United States, including various means by which it incorporates principles of proportionaltiy, may offer useful guidance, or at least cautionary notes, for the German context
Pathogen Genomes as Global Public Goods (and why they should not be patented)
Get PDFDuring past viral outbreaks, researchers rushed to patent genomic sequences of the viruses as they were discovered, leading to disputes and delays in research coordination. Yet similar disputes did not occur with respect to the genomic sequence of SARS-CoV-2, the virus responsible for COVID-19. With respect to COVID-19, global research collaboration occurred rapidly, leading to the identification of new variants, the ability to track the spread of the disease, and the development of vaccines and therapeutics in record time. The lack of patenting of SARS-CoV-2 is likely due the U.S. Supreme Court’s 2013 ruling in Association for Molecular Pathology v. Myriad Genetics, which established that naturally occurring genomic sequences are ineligible for patent protection, a decision that has had repercussions around the world. Recently, however, legislative proposals have been made in the U.S. to overturn this decision. Such legislation, if enacted, would enable researchers, likely based in countries where pathogenic outbreaks first occur, to obtain U.S. patents on pathogen genomes. Given that ample opportunities exist for patenting of diagnostics, vaccines, therapeutics and other downstream innovations, steps should be taken at national and international levels to ensure that pathogenic sequence data cannot be appropriated by individual researchers, institutions, or states
Federalism and the Right to Travel: Medical Aid in Dying and Abortion
Get PDFThis article explores how rights to movement may limit state efforts to restrict abortions, either directly or indirectly. We use the language of “movement” to encompass short-term visits, longer-term residency changes, and the movement of goods or services across state lines. We prefer “movement” to “travel” or “tourism,” as this language risks trivializing the seriousness of what might be at stake. However, since “travel” is the term used in many U.S. court decisions and other discussions concerning the right,7 we use that term as relevant to these. The centerpiece of our defense is the relationship between freedom of movement and what it is to be fully recognized as a person in a federal society. Our defense is nuanced; some interferences with interstate movement go to the very heart of what it is to be recognized as a person, whereas others may not
The Levers of Sustainability: The EU Directive on Corporate Sustainability Due Diligence in Comparison to US Law
Get PDFIn February 2022, the European Commission proposed a far-reaching and comprehensive directive on corporate sustainability due diligence (the “Directive”). This Article describes the Directive, compares it to sustainability efforts in the US, and offers observations and critiques about both the Directive and US law. The comparison reveals several primary takeaways. First, likely owing to their significantly different social and political cultures, the EU Directive goes far beyond any US sustainability efforts. Second, and relatedly, the Directive is part of a rapidly progressing EU sustainability framework, which embraces sustainability as a stand-alone goal. In the US, however, considerations of sustainability are almost always framed within a financial paradigm, which distracts policy discussions and stalls regulatory efforts. Third, the Directive applies to companies based on size and industry. Enacting a rule with similar coverage would be difficult in the US because the corporate and securities laws on which sustainability obligations would most likely be based are jurisdictionally fragmented. Finally, in a departure from its usual hesitancy in the area, the US experimented with human-rights due diligence a decade ago, with the so-called conflict minerals rule. The rule failed for a range of reasons—political, structural, and regulatory—which still resonate and provide grounds for caution about the potential of the Directive to significantly improve human rights
Insider Expungement
Get PDFLike many phases of the criminal justice system, insiders dominate the practice of expungement and there is little to no involvement of the broader community. Recently, scholars in favor of democratization in criminal justice have called for enhanced public involvement during policing, charging, bail determinations, plea-bargaining, and sentencing to improve accountability, transparency, and democratic participation. This Article is the first to extend this critique to decision-making during the expungement process. It conveys how expungement always has been the province of insiders and how recent expungement reforms, while broadening some substantive expungement remedies, double down on this paradigm. Procedures are implemented by judicial staff, prosecutors and defense attorneys filter petitions, the ultimate decision usually rests with a single judge, and bureaucrats are tasked with making expungement efficacious. The move towards tech-based, automatic expungement is merely insider expungement by another name.
After documenting insider expungement in its past and present forms, this Article explains why insider expungement adjudication is the norm. First, expungement processes were conceived, designed, and reformed in a system characterized by increased bureaucratization. In this sense, expungement law is a product of its environment. Second, the expungement remedy implicates the maintenance of public criminal records, which are connected to policy preferences for deterrence, incapacitation, and rehabilitation, all of which involve complicated costbenefit analyses. In the same vein, expungement adjudication is about the assignment of risk to individuals, which traditionally has been understood as the province of criminal justice experts. Finally, insider expungement is built on the premise that the public is too punitive. In sum, insider-based expungement is a product of forces for criminal justice professionalization that are larger than the field of expungement, as well as a belief that the public cannot be trusted to address stigma-based harm or foster reentry. Finally, while there is no question that the ability to obtain formal expungement relief has become easier over the past two decades, this Article notes several possible concerns with an exclusively insider-based expungement regime, including how secrecy and insider adjudication might undercut the purpose of expungement in the long run: full reintegration by the community and for more individuals. The absence of the community from expungement adjudication raises procedural justice, democratic, and legitimacy issues
The Carpenter Test as a Transformation of Fourth Amendment Law
Get PDFFor over fifty years, the Fourth Amendment’s scope has been largely dictated by the Katz test, which applies the Amendment’s protections only when the government has violated a person’s “reasonable expectation of privacy.” This vague standard is one of the most criticized doctrines in all of American law, and its lack of coherence has made Fourth Amendment search law notoriously confusing. Things have become even more complex following the Supreme Court’s landmark decision in Carpenter v. United States, which has spawned its own alternative test for determining the Fourth Amendment’s scope. The emerging Carpenter test looks to the revealing nature of the data at issue, the amount of data collected, and whether the data was voluntarily disclosed to others.
This Essay examines the uneasy state of current Fourth Amendment law, in which the Katz and Carpenter paradigms overlap and compete in the lower courts. It describes the many ways that courts have attempted to integrate these two frameworks. It also assesses several potential metaprinciples that might be used to determine when each test should be applied.
Based on this analysis, this Essay contends that the Carpenter test should be the primary test for Fourth Amendment searches going forward. Carpenter creates a coherent, multi-factor test that lower courts have already successfully applied in numerous cases. Its conceptual reach is universal, capable of addressing any Fourth Amendment scenario. And the test focuses arguments and produces clear answers, offering far more predictability than its predecessor. This Essay identifies the theoretical and jurisprudential foundations of the Carpenter test, tracing its origins to longstanding Supreme Court precedents and evaluating its application in contemporary cases. Ultimately, the Carpenter test can clarify when individuals will be protected against government surveillance and provide courts with meaningful guidance and direction
A New Test for the New Crime Exception
Get PDFThe new crime exception to the Fourth Amendment exclusionary rule allows prosecutors to introduce evidence connected to new crimes committed by defendants who were illegally detained and/or questioned. Unfortunately, as illustrated in this Article, courts largely have applied this new crime exception without any analytical framework or regard for the severity of the initial police misconduct or the defendant’s response. Moreover, courts have begun applying the new crime exception to crimes such as giving a fake name in response to an un-Mirandized interrogation following a lawful arrest.
By doing so, courts have allowed the new crime exception to swallow two separate exclusionary rules. Courts, however, can recalibrate the exception by focusing on the purpose and flagrancy of the defendant’s new crime. By using an approach that draws from the future crime exception to attorney-client privilege and the public safety exception to the Miranda exclusionary rule, courts can replace their current “all or nothing” approach with a cost-benefit balancing that will better serve public policy goals in a more nuanced way
Preventing Trafficking by Protecting Refugees
Get PDFAn inherent tension underlies the duty to prevent trafficking. On the one hand, nation-states are required to take border control measures aimed at preventing trafficking. At the same time, such measures must respect international obligations toward asylum-seekers and other migrants relating to the free movement of people. In the past twenty years, countries such as the United States have developed increasingly sophisticated systems designed to regulate and restrict the movement of people across borders. However, the same period has seen an increasing disregard for the human rights of the very people who are crossing those borders. In order to fully meet the duty to prevent trafficking, states must come to recognize the importance of involving victims of this crime in the solution, which will never happen if countries demonize all migrants as criminals and traffickers. In short, states that seek to lead the fight against human trafficking need to work with victims (including foreign national victims in the state’s territory) and other partners (such as non-governmental organizations and victims’ attorneys) to ensure that their rhetoric more closely matches reality
Why Is FRAND Hard?
Get PDFThere are many reasons why FRAND is a complex topic. The first four challenges offer low-hanging fruit that could clarify FRAND issues by paying less attention to systemic holdup, jettisoning unsupported positions, not letting industry funding replace reasoned debate, and being aware of the role played by patent trolls. The remaining four challenges pose levels of difficulty that increase from modest (clear SDO rules or facts) to medium (SDO history, industry characteristics, unclear licensee willingness) to significant (determining “fair and reasonable” and “nondiscriminatory”) to extraordinary (global litigation). While not all of these challenges can be addressed with simple solutions, an awareness of the types of challenges presented by FRAND could prove helpful in the years ahead
Religious Freedom (for most) Restoration Act: A Critical Review of the Ninth Circuit’s Analysis in Apache Stronghold
Get PDFThis Note analyzes sacred site protection under the Religious Freedom Restoration Act (“RFRA”) and argues that the Ninth Circuit’s upcoming en banc review of Apache Stronghold is a critical moment for many Indigenous faiths. Against the backdrop of a religious freedom resurgence for other faiths over the past decade, the practitioners in Apache Stronghold face the irreparable loss of identity and culture