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The Crime of Product Counterfeiting: A Legal Analysis of the Usage of State-Level Statutes
Get PDFThis legal analysis of the state-level trademark counterfeiting criminal enforcement framework in the United States (“U.S.”) scrutinizes the use and non-use of state statutes to prosecute and convict trademark counterfeiters. Relying on state-level appellate court cases and conviction data, we found: (1) states inconsistently use and interpret criminal anti-counterfeiting statutes across the U.S.; and (2) strategies for building evidence in trademark counterfeiting criminal cases are strongest when based on cooperation with the victim (trademark owner). Based on our findings, to improve state-level anti-counterfeiting efforts, we recommend several best practices: Adoption of specific criminal trademark counterfeiting statutes if states do not already have a statute; Continued involvement and testimony by brand owners to distinguish between counterfeit and genuine product; and Continued and expanded collaboration and educational efforts between law enforcement, prosecutors, private investigators, and brand owners regarding trademark counterfeiting, as well as the potential danger to the health and safety of the public and possible connections to organized crime and terrorism
The Patent On-Sale Bar Post-\u3ci\u3eHelsinn\u3c/i\u3e and its Effect on the Pharmaceutical Industry
Get PDFThe purpose of the patent on-sale bar is to discourage inventors from misusing the patent system and unfairly extending their patent exclusivity period. In Helsinn Healthcare v. Teva Pharmaceuticals, the Federal Circuit has distorted this doctrine far beyond its purpose. By including non-public business transactions within the scope of the on-sale bar, the Federal Circuit’s decision contradicts legislative history and express statutory language from the America Invents Act (“AIA”). This interpretation also makes the U.S. the only major patent system where a non-public sale can lead to the forfeiture of an inventor’s patent rights. The inclusion of non-public agreements within the scope of invalidating prior-art is a particularly harsh result for small pharmaceutical companies. These companies routinely enter into private license and supply agreements both to raise capital and to ally with experienced industry players who can help them navigate through the challenging FDA approval process. The Federal Circuit’s Helsinn decision restricts the ability of small pharmaceutical companies to collaborate with others, and therefore impedes their ability to innovate. Helsinn also makes the on-sale bar inquiry extremely fact-specific and injects unnecessary uncertainty into routine business deals. This paper suggests that the Federal Circuit’s decision in Helsinn misinterprets the AIA’s statutory text, ignores significant legislative history, and is logically at odds with the economic realities of the pharmaceutical industry. This paper also provides some practical suggestions for how pharmaceutical companies can structure commercial transactions without stepping on the on-sale bar minefield
Administrative Oversight: Justice Gorsuch’s Patent Opinions, the PTAB, and Antagonism Toward the Administrative State
Get PDFIn his first term, Justice Neil Gorsuch has made a surprisingly forceful impact on, of all things, patent law—and even more unlikely, the United States Patent and Trademark Office’s adjudicatory arm, the Patent Trial and Appeal Board. Was there any way to predict, from his 10th Circuit opinions below, that he would author opinions in all three patent cases in his first term? Was this attention the result of deeply submerged but long-felt opinions on patent law, or rather a result of his sharp distrust of administrative overreach? We analyze 10th Circuit and Supreme Court opinions authored by Justice Gorsuch, and conclude his unforeseen interest springs from his desire to limit agency power rather than from any particular concern with patents. Still, his opinions—intentionally or by happenstance—will reverberate through our patent law for years
Prosecutors at the Periphery
Get PDFContrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed constitutional text between 1787 and 1789, those Americans enfranchised to vote on its ratification would have brought to their understanding of “executive power” not just dictionary definitions, but also their experience of living under executive power as exercised in Great Britain, in the colonies, and under state constitutions. They would have understood prosecution to be a form of judicial power, and the “original public meaning” of Article II executive power would not have guaranteed presidents the power to control prosecutorial discretion
The Anatomy of Violent Crime: How Judicial Analysis for “Crimes of Violence” Impacts Juveniles When Applied to the Federal Juvenile Delinquency and Transfer Statute
Get PDFIn 1984, the Comprehensive Crime Control Act revolutionized sentencing in the federal system by imposing mandatory minimum sentences for offenders who committed criminal offenses, increasing penalties for repeat offenses considered to be violent crimes. Since then, courts across the country have labored over defining what constitutes a “violent crime.” In the federal court system, juveniles can be transferred to adult proceedings under The Juvenile Transfer Statute. This statutes gives the government authority to transfer minors to adult court if he or she meets three conditions, one of which is whether the juvenile has a prior conviction of a “violent crime.” To determine whether a past conviction is in fact a “violent crime,” courts must assess its definitions using several interpretation methods discussed in the article. Additionally, courts conduct similar analysis when applying enhancement statutes during sentencing for repeat offenders. Although courts do their best to stay consistent, the analysis for violent crimes is the same whether it be for juvenile transfer purposes or sentence-enhancement purposes for adult repeat-offenders. However, the implications of transferring juveniles to adult court are critical and should be considered differently in the evaluation of the transfer issue. This article explores the expansion of possible court interpretations in violent crime when pertaining to juvenile offenders to depart from using the same standard of analysis as in adult cases. The Seventh Circuit determined in United States v. D.D.B, that the crime of attempted robbery does not count as a “crime of violence” but concludes so only because of the way the Indiana statute is written. Although the Seventh Circuit’s determination that attempted robbery is not a violent crime under the statute is correct, courts should use a different analysis for the transfer statute than they do for purposes of enhancement provisions to distinguish between juvenile and adult offenders
Jurisdiction Means Jurisdiction Not Claims-Processing: the Seventh Circuit’s Flawed Approach to Pereira v. Sessions in \u3ci\u3eOrtiz-Santiago v. Barr\u3c/i\u3e
Get PDF“Jurisdiction is [not necessarily] a word of too many meanings.” Jurisdiction, in its most basic terms, refers to a court’s adjudicatory authority over a case or individual. However, courts’ holdings distinguishing between what is a jurisdictional rule and what is a claims-processing rule have left immigrants even more vulnerable to judges’ discretion. In Santiago-Ortiz v. Barr, the Seventh Circuit held that incomplete charging documents known as notices to appear do not present a jurisdictional question, but rather, a claims-processing one, violations of which can be forfeited if not raised in a timely manner. While some may refer to this distinction as a simple technicality, in immigration law, where most judicial decisions are already discretionary, carefully evaluating these technicalities is of utmost importance. This is even more crucial under an anti-immigrant administration. While many attorneys have successfully terminated cases based on Ortiz-Santiago, filing untimely motions to terminate based on claims-processing rule violations can essentially lead to noncitizens’ removal from the country. . Therefore, the Seventh Circuit should reconsider its simple dismissal of incomplete notices to appear as violations of claims-processing rules and answer the jurisdictional question in the affirmative. As is clear from 8 USC § 1229 defining how immigration proceedings commence, regulation 8 USC § 1003.14, defining how jurisdiction vests and, 8 USC § 1003.13, delineating what is a proper charging document, the notice to appear is intended to assert jurisdiction over an immigration case. Charging documents not abiding by the requirements delineated in 1003.13 are therefore not valid and cannot assert jurisdiction. Additionally, the Seventh’s circuit’s reliance on a case relating to Article III courts rather than agencies interpretations of statutes does not justify the court’s conclusion that notice to appear defects are claims-processing rule violations
