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Consequences for Patent Owners if a Patent is Unconstitutionally Invalidated by the Patent Trial and Appeal Board
Get PDFThere have been many constitutional challenges against the Patent Trial and Appeal Board (“PTAB”) since it was created by the America Invents Act in 2011. While the merits of these challenges have been widely debated, there has been little analysis of what would happen if one of these challenges succeeded and patents are found to have been unconstitutionally invalidated. This note examines how issues with waiver, retroactivity, and finality may prevent patent owners from getting their patent rights back, considering the type of constitutional challenge and the different stages of the PTAB process. While the odds are stacked against patent owners in most circumstances, they may have more success at obtaining relief with due process challenges
Enhanced Patent Infringement Damages Post-\u3cem\u3eHalo\u3c/em\u3e and the Problem with Using the \u3cem\u3eRead\u3c/em\u3e Factors
Get PDFThe United States Patent Act allows a patent holder to recover treble damages for “willful infringement.” The standard for willful infringement has changed over the years, with the United States Supreme Court providing the most recent explanation of what is “willful” in Halo Electronics, Inc. v. Pulse Electronics, Inc. in 2016. Courts, however, continue to use a set of factors set forth in Read Corp. v. Portec, Inc. in 1992 to aid their discretion in awarding willful infringement enhanced damages. In this article, I argue that at least two of the Read factors are inconsistent with the Supreme Court’s Halo opinion: factor 3, the infringer’s behavior as a party during litigation, and factor 5, the closeness of the case. I suggest that courts continue to use the remaining seven of the nine Read factors to guide their discretion. However, to the extent that courts consider a party’s litigation behavior and the closeness of the case, this is inconsistent with Halo
Huge Numbers of Patent Cases: How One District Judge Manages Them - The 2018 Supreme Court IP Review Address
Get PDFClarifying the Scope of the Self-Incrimination Clause: \u3cem\u3eCity of Hays v. Vogt\u3c/em\u3e
Get PDFThree months after oral arguments, the Supreme Court dismissed the writ of certiorari in City of Hays v. Vogt as improvidently granted. The question in Vogt was whether the Fifth Amendment right against self-incrimination is violated when incriminating statements are used at a probable cause hearing, as opposed to a criminal trial. As a result of the “DIG,” the Court left a circuit split unresolved surrounding the meaning of a “criminal case” within the Fifth Amendment’s Self-Incrimination Clause.
This note argues that the Supreme Court should not have dismissed Vogt and should have decided that the Fifth Amendment right against self-incrimination is a broad right not limited to trial. Historical evidence signals that the Framers of the Constitution meant for the Self-Incrimination Clause to apply beyond the trial stage. Further, when a self-incriminating statement is used at a probable cause hearing, it can effectively deprive the individual of life, liberty, and property, implicating the Fourteenth Amendment. While some circuits narrowly define a criminal case as a criminal trial, other circuit courts have broadened the right against self-incrimination to a variety of pre-trial proceedings. The Supreme Court should set clear and consistent precedent concerning the right against self-incrimination and should establish that the Fifth Amendment protects individuals at probable cause hearings
Information Mischief under the Trump Administration
Get PDFThe Trump administration has used government information in more cynical ways than its predecessors. For example, it has removed certain information from the public domain, scrubbed certain terminology from government web sites, censored scientists, manipulated public data, and used “transparency” initiatives as a pretext for anti-regulatory policies, particularly environmental policy. This article attempts to tease out an emerging “information policy” for the Trump administration, explain how it departs from the information policies of predecessors, and evaluate the extent to which both legal and non-legal mechanisms might constrain executive discretion
The Special Norms Thesis: Why Congress\u27s Constitutional Decision-Making Should Be Disciplined By More Than the Usual Norms of Politics
No full text“Dude, Where’s My Car?” A Look at How the Seventh Circuit Addresses Chicago’s Vehicle Immobilization Practices that Drive its Residents into Bankruptcy
Get PDFBankruptcy is largely a collective process that furthers two goals—the equitable distribution of the debtor’s assets on account of his liabilities and either granting the debtor a fresh start, or the rehabilitation of the debtor by utilizing his income and property to reorganize his affairs. The most significant tool available to further these goals is the automatic stay, which is widely recognized to enjoin most collection efforts against the debtor and prevent the chaotic scramble for the debtor’s assets would otherwise occur between his creditors. However, the debate has intensified the automatic stay is just a “stay”, or whether it additionally places an affirmative obligation to return seized property belonging to the debtor once the bankruptcy commences. This issue is largely important in the Seventh Circuit, where Chicagoans hold some of the highest traffic ticket debt in the country, resulting in the City’s mass immobilization of their vehicles. In 2019, the Seventh Circuit reaffirmed that the stay requires the City to return the debtors’ cars in In re Fulton, giving debt-riddled Chicagoans a fair chance at rehabilitation.. In light of the Supreme Court agreeing to hear Fulton, this Note analyzes the automatic stay provision and argues that the Seventh Circuit’s approach best reflects bankruptcy’s purpose and how it furthers important policy goals underlying the Bankruptcy Code. Bankruptcy, as a collective process, requires all creditors, including the government, to cooperate and help facilitate an equitable outcome
Unreasonable: Judge Easterbrook, the Seventh Circuit, & the Deterioration of Fourth Amendment Protection for Convicted Prisoners
Get PDFHow limited are the constitutional rights of convicted prisoners? In a line of cases authored by Judge Easterbrook, the Seventh Circuit has allowed greater intrusion on Fourth Amendment privacy rights of prisoners than any other circuit. Today, even arbitrary and degrading visual body-cavity searches are deemed constitutional under this line of precedent. The deference to prison officials—who lack any meaningful oversite—is unwise, and leaves prisoners without a necessary protection against abuse. The Court should employ a workable standard that respects the rights of prisoners and protects them from abuse. Considering dignity within the realm of Fourth Amendment protections would meet these goals
When Insurance Companies Meet Their Match, The Seventh Circuit Resolves Ambiguous Replacement-Cost Policy Language
Get PDFDisaster strikes and you, as a homeowner, are left with a partially damaged building. That is the first mess. The next mess? Arguing with your insurance company over your replacement-cost policy language. In cases of partial damage to property, replacement cost policies have often been ambiguous regarding what property the insurer will actually replace. If the siding on your house was damaged, you might wonder if the insurance company is replacing the siding on the whole house or just the siding on the side that was damaged? The insureds will argue that entire replacement should occur—for example, all the shingles on the roof or all the siding on the entire house should be replaced—because that will be the only way to achieve a uniform, aesthetically matching appearance. Insurance carriers, on the other hand, argue that the particular replacement cost policy only agreed to pay the cost to replace damaged property, and therefore, aesthetic matching is not necessarily required. In the end, sometimes the difference in cost can be millions—or billions—of dollars. According to the Seventh Circuit’s recent opinion in Windridge of Naperville Condo. Ass’n v. Philadelphia Indemnity Insurance Co., the insured’s argument made more sense. In Windridge, the Seventh Circuit focused heavily on the problem with ambiguous replacement cost policy language and found a way to make the insured whole again without having to reinvent the wheel as it interpreted the relevant ambiguity in favor of the insured, the party with the least bargaining power. This Note argues that the Seventh Circuit’s logical decision based on contract interpretation over “direct loss” and “covered property” likely paved the way for other courts to adopt a similar interpretation of such policy language, which could end the long-lasting debate. There is much to be learned from the impact aesthetic appeal can really have upon property value, and the Seventh Circuit’s recent decision is merely a glimpse into a trend that will likely take the Nation by storm
