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The Post-Grant Life: Coordinating & Strategizing Challenges of Issued Patents in Multiple Continents
Get PDFWith the enactment of the Leahy-Smith American Invents Act (AIA), U.S. patent law gained a new post-grant opposition system and the Patent Trial and Appeal Board (PTAB). While the U.S. post-grant opposition system has some similarities to the post-grant systems, such as that in the European Union, Japan, South Korea, Canada, and Australia, there are also notable differences. Navigating one’s own post-grant system can be challenging, but doing so in multiple patent offices around the world is daunting. Differences in these proceedings not only present the potential for parties to make costly errors, but also to engage in strategic behavior. This Article discusses one such opportunity to engage in strategic behavior, one that is available due to a lack of international harmonization in the various post-grant systems around the world. In short, while the post-grant opposition system in the United States includes multiple estoppel statutes, there are no analogous estoppel statutes in many other post-grant systems, including that in the European Union and Japan. Because of this lack of harmonization, parties may test the strength of a competitor’s patent in multiple venues, as well as determine a competitor’s tolerance for financing simultaneous proceeding around the world
Neil Gorsuch and the Ginsburg Rules
Get PDFSupreme Court nominees testifying before the Senate Judiciary Committee frequently invoke the so-called “Ginsburg Rule” to justify not answering questions posed to them. According to this “rule,” nominees during their testimony must avoid signaling their preferences about previously decided Supreme Court cases or constitutional issues. Using empirical data on every question asked and answered at every hearing from 1939–2017, we explore this “rule,” and its attribution to Justice Ruth Bader Ginsburg. We demonstrate three things. First, the Ginsburg Rule is poorly named, given that the practice of claiming a privilege to not respond to certain types of questions predates the Ginsburg nomination by decades. Second, the Ginsburg Rule really is two rules: one governing when nominees should not provide direct responses to certain types of questions, and a second governing when they should. Third, we show that Neil Gorsuch, despite his insistence to the contrary, did not really follow the example set by Justice Ginsburg. Instead, unlike Justice Ginsburg and most other recent nominees, Gorsuch regularly refused to articulate firm positions on even our most widely accepted constitutional issues and cases. In doing, we argue, Gorsuch’s practice risks diminishing one important way in which we as a society use Supreme Court confirmation hearings to debate and endorse constitutional change
The Ammanati Affair: Seven Centuries Old, and Not Feeling the Age
Get PDFThe enactments of the UNCITRAL Model Law on Cross-Border Insolvency and the European Regulations on insolvency proceedings have promoted an incremental approach towards substantive harmonization. This strategy has not remained unquestioned. One of the major criticisms is that such a course of actions overlooks the nature of the issues currently raised in multi-national and cross-disciplinary bankruptcy procedures.
This Article focuses on the Anglo/American bankruptcy tradition. It adopts a doctrinal methodology to question the conclusion that “collectivity” is and should be a procedural, objective, and secondary notion in light of two case studies. It suggests that in the context of cross-border, cross-disciplinary cases, equitable concepts could be employed to introduce a more nuanced understanding of the notion of “collectivity.” This should facilitate the recognition of foreign bankruptcy proceedings alongside with their inclusiveness, finality, and certainty
Originalism and Congressional Power to Enforce the Fourteenth Amendment
No full textIn this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial deference to congressional constitutional interpretive authority. Second, even if one accepts originalism as the best way for courts to interpret the Constitution, this assumption does not necessarily apply to nonjudicial actors when they are fulfilling their own constitutional responsibilities—such as members of Congress acting to enforce the provisions of the Fourteenth Amendment. Placing judicial originalism into the foreground of our discussion of Section 5 jurisprudence thus offers additional support for a broader reading of the congressional enforcement power than exists today under Boerne
Investors\u27 Paradox
No full textFor the first time in an era, new investment products for smaller ( retail ) investors are emerging. These products are mutual funds that engage in the types of trading and investment activities that have long been the province of sophisticated investors. Accordingly, the new funds (called alternative funds ) promise to reduce the gulf between retail investors and their sophisticated counterparts, in terms of portfolio diversification and investment results.This Article describes the complex mix of factors that spawned alternative funds and critically evaluates the funds\u27 potential, the first scholarly work to do so. It additionally unearths the paradox that impedes the realization of that potential: although financial advisers counsel that portfolio diversification reduces investment risk, taking advantage of the opportunities that now make diversification possible could unduly increase that risk. This result, moreover, arises not from alternative funds themselves. Rather, it is a product of the fact that the primary regulatory tool for protecting investors—disclosure—is particularly ineffective in the alternative fund context. In addition, the profit-driven financial professionals that assist retail investors with their investment decisions need not, in many cases, do so in furtherance of their customers\u27 best interests and, in any event, may not have sufficient expertise about alternative funds to be useful.The Article contends that regulatory solutions should center not on disclosure, as the usual target of securities regulatory reform, but, rather, on the processes by which mutual fund shares are marketed and sold to investors. It proposes politically feasible reforms that would dissolve the paradox, enabling retail investors to take better advantage of the new investment universe
Stranded at Sea: The Seventh Circuit and the Rule 11 “Safe Harbor” Rule
Get PDFWhen lawyers pursue frivolous claims, they invite sanctions. Rule 11 of the Federal Rules of Civil Procedure requires attorneys to certify that the pleadings and motions they submit are meritorious. Since 1993, attorneys have been required to serve opposing counsel with a motion—to fire a warning shot—when they intend to file for sanctions. This provides attorneys an opportunity to seek “safe harbor” and avoid sanctions by withdrawing or amending actions brought for an improper purpose
The “Animus” Briefs: Attacks on the Seventh Circuit’s Sound Analysis of Transgender Bathroom Rights in Public Schools
Get PDFYou have probably heard about state legislatures floating the idea of “bathroom laws” that would prohibit transgendered individuals from using the bathroom of their gender identity in public places. Although no state has actually signed such legislation into law, the spirit of those anti-transgender laws has been carried out in smaller governmental entities: public schools. Unlike a hypothetical state law, which would be nearly impossible to enforce without state officials performing inspections of genitals, a school policy is truly enforceable and has real effects
Vol. 35, No. 1
Get PDFA Fresh Look at Title VII: Sexual Orientation Discrimination as Sex Discrimination, by Anthony Michael Kreis
Recent Developmentshttps://scholarship.kentlaw.iit.edu/iperr/1103/thumbnail.jp
Vol. 35, No. 2
Get PDFWhere Do We Go From Here? Martin Luther King, Jr.’s Labor Legacy and the Current Attacks on Public Sector Unions, by Stephanie Fortado
Recent Developmentshttps://scholarship.kentlaw.iit.edu/iperr/1104/thumbnail.jp