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Master of the Petition: Exploring the Tension Between the PTAB and Petitioners in Controlling the Scope of AIA Trials
Get PDFAre There Really Two Sides of the Claim Construction Coin? The Application of the Broadest Reasonable Interpretation at the PTAB
Get PDFThe USPTO has applied the broadest reasonable interpretation (BRI) claim construction standard during prosecution, reexamination, and other office proceedings for decades. The Supreme Court affirmed in Cuozzo Speed Technologies Inc. that BRI is also the appropriate standard for unexpired claims in post-grant proceedings at the Patent Trial and Appeal Board (PTAB). Leading up to Cuozzo, many parties speculated that the PTAB’s application of BRI might create confusion and result in inconsistent outcomes at the district court level. Notably, nothing in the America Invents Act establishes a standard of deference between PTAB and district court decisions. But so far, there has been minimal confusion.
This Article explores the application of the BRI at the PTAB level and evaluates if there really is any difference in applying the BRI standard compared with the Phillips standard. This Article also discusses whether other distinctions, such as different evidentiary standards, or just plain different evidence being presented, had a greater effect than claim construction standards in the few cases where a district court and the PTAB have construed the same claim language differently.
The Supreme Court recently affirmed the constitutionality of postgrant proceedings at the PTAB in Oil States Energy Services, LLC. v. Greene’s Energy Group, LLC. However, questions of “takings,” “retroactive application,” and “due process” remain on the judicial horizon
Between Scylla and Charybdis: \u3ci\u3eEzell v. City of Chicago (Ezell II)\u3c/i\u3e and How the Seventh Circuit Continues to Narrow Chicago’s Constitutional Path Forward on Gun Control
Get PDFIt has been less than a decade since the Supreme Court reset the landscape of gun rights by recognizing, for the first time, that the Second Amendment protects an individual’s right to keep and bear arms unconnected with any militia service. The Court was notably silent as to which standard of review lower courts should apply to the inevitable wave of Second Amendment challenges to federal, state, and local gun control legislation. In the absence of guidance from the Supreme Court, the majority of the Federal Circuit Courts of Appeals have adopted a two-step means-end test similar in many respects to the framework used in the First Amendment context. Under this test, the courts must first determine whether the conduct being regulated falls within the scope of the Second Amendment, and if so they must evaluate the law at issue under some heightened form of means-end scrutiny
Mirror, Mirror on the Wall, Are they Trainees and Not Employees at All? The Legality and Economic Reality of Unpaid Internships
Get PDFThe number of unpaid internships has skyrocketed over the past years as employers seem to prefer those with experience in the field. “Experience” has become the currency that college students seek to open the door to future employment. Unpaid interns have become the modern-day equivalent of entry-level employees. However, they are not paid for the hours worked and lack the normal employment protections offered to employees, such as FLSA and Title VII protections. The court\u27s interest recently has been sparked to define the roles of interns in the labor force and has started to shape intern’s legal protections. As a result, the courts have tried to interpret the Supreme Court case of Walling v. Portland Terminal Co. to define the circumstances under which an unpaid trainee can be considered an employee under the FLSA. Four predominant tests have emerged from circuit court interpretations: the WHD factors (drafted by the Department of Labor), the primary beneficiary test, the totality of the circumstances test, and the Glatt test
Your Supervisor As Your Chattel: Broadening the Scope of Negligent Hiring and Retention in Illinois
Get PDFIn Illinois, employers have a duty to act reasonably in hiring and retaining their employees. An employer who negligently hires or retains an employee may be liable for injuries caused by that employee even if the employee is acting outside the scope of employment. Of course, this doctrine has to have some limit. Otherwise, employers would be responsible for practically any injury committed by one of its employees, even if it is only tangentially related to the fact of employment. However, courts have struggled to define that outer limit. Particularly when faced with horrific injuries, courts may be tempted to push the boundaries of negligent hiring and retention further and further out
Taking Judicial Legitimacy Seriously
Get PDFChief Justice Roberts appears worried about judicial legitimacy. In Gill v. Whitford, the Wisconsin gerrymandering case, he explicitly worries about the message the Court would send if it wades into the gerrymandering debate. More explicitly, he worries about “the status and integrity” of the Court if is seen as taking sides in politically charged controversies. Similarly, during his confirmation hearing, Roberts warned that the Court has a limited role in our constitutional scheme and must stay within it. To decide cases on the basis of policy and not law would compromise the Court’s legitimacy. This Essay is skeptical. For one, social science research makes clear that the legitimacy of the Court is not compromised so long as the Justices exercise their authority in a principled way. What the Justices may not do is be perceived as behaving strategically. Note the irony. In recent years, Chief Justice Roberts, and particularly his opinion in Sebelius, is seen as the high water mark of strategic decisionmaking. A second view of judicial legitimacy equates legitimacy with compliance and acceptance of judicial outcomes precisely because the Court issues them. The data is complex but history is also on the Court’s side. Consider in this vein the reception to Baker v. Carr, or Bush v. Gore, or Shelby County v. Holder. Why does Chief Justice Roberts raise concerns about judicial legitimacy? The Essay concludes that this is in itself a strategic move and a selective concern. There is very little the Court can do to compromise its legitimacy. Concerns about judicial legitimacy are either ignorant of what judicial legitimacy is and the vast body of work that explains it, or else it is a feigned worry designed to disguise a substantive agenda
Fiduciary Duties of Directors of Insolvent Corporations: A Comparative Perspective
Get PDFOver the last two decades, in many jurisdictions great emphasis has been placed on directors’ fiduciary duties when a corporation is insolvent or in the amorphous “zone of insolvency”; notably, to investigate whether the directors should continue to promote the best interests of the corporation for the benefits of its shareholders, or whether their duties shift to creditors.
The resolution of this ubiquitous issue will help to answer the following questions: Do creditors have standing to pursue claims for breach of fiduciary duties in the insolvency scenario? And, if they do, is it direct or derivative standing?
This Article will address both questions. Moreover, it will discuss the issue of who has standing to assert (direct or derivative) claims against directors who have failed to act in the best interests of the corporation upon the commencement of a reorganization proceeding.
The Article compares three countries—the United States, France, and Italy—where the role of the reorganization or the (pre-)insolvency proceedings in overcoming corporate crises has been prominent for many years, or has been increasing in importance year by year. Particularly, this comparative analysis aims to highlight the differences between the United States, France, and Italy in terms of creditors’ protection vis- ` a-vis directors’ mismanagement and to evaluate the effectiveness of their respective regulatory and judicial responses
