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  • Asserting Foreign Patent Claims in U.S. Federal Courts: Whats Left After Voda v. Cordis?

    Patent law is inherently territorial; a patent covers infringing activity only within the borders of the nation in which it is granted. However, this makes enforcing patent rights worldwide a daunting challenge. Rather than recklessly extending the extraterritorial reach of U.S. patent law, a better alternative would be to assert claims for infringement of multiple foreign patents in a single, U.S. forum.

  • Too Costly to Defend: Who Is Benefited From the U.S. Supreme Court’s Recent Holdings Concerning Biotechnology Patent Disputes?

    Justice Scalia’s recent holdings on behalf of the Supreme Court in Merck KGaA v. Integra Lifesciences I, Ltd. and MedImmune Inc. v. Genentech, Inc. have had a grave impact on biotechnology research. These cases represent the two sides of the same coin and, therefore, should be examined together rather than separately.

  • Cyber-Surfing On The High Seas Of Legalese: Law And Technology Of Internet Agreements

    With the rapid expansion of the Internet and the World Wide Web, there has been a discernible and disturbing trend of linking to one-sided terms of use, purporting to bind casual visitors who are not involved in any commercial transacting. Such provisions found on web pages can be extensive and carry potentially drastic consequences through court enforcement. Often placement of the provisions is unobvious, such as at the bottom of a web page, and identified by various nonstandard phrases such as “terms of service,” “terms of use,” “user agreement,” “legal stuff,” “disclaimer,” “conditions of use,” or “user agreement.” Further, uniformly blended colors or shapes, distracting animations, or faded words or images can camouflage such labels. All of this can lead one to ask whether such terms are enforceable against the average cyber-surfer, as distinguished from sophisticated users engaged in electronic commerce. Are users blissfully ignorant of unread web terms acting at their peril or is there nothing to be concerned about?

  • Turning a Blind Eye to Misleading Scientific Testimony: Failure of Procedural Safeguards in a Capital Case

    In September 1999, Robin Lovitt was convicted and sentenced to death for the murder of a pool hall manager in Arlington, Virginia. The DNA evidence that was a key part of the government’s case was presented in a misleading and unfair manner. In this case study, we first examine the way in which DNA evidence was misused. We then discuss the failure of the legal system at all levels to recognize and remedy this problem. Our goal is to explain how a system that supposedly leaves no stone unturned in capital trials managed to miss or ignore a crucial problem with the scientific evidence that supported the conviction. We argue that the Lovitt case is indicative of systemic problems with the use of scientific evidence that could affect the fairness of criminal trials nationwide, and we suggest legal and institutional reforms that may help minimize the risk of similar problems in the future.

  • Against Search Engine Volition

    The concept of volition in copyright arose as a way to insulate Internet Access Providers and Bulletin Board Systems from liability for direct infringement prior to the 1998 “safe harbor” provisions of the Digital Millennium Copyright Act. The volition requirement purported to be a technical test, finding that volition was lacking where the technology, like a copy machine, responded “automatically” to a “third party request.” However, the metaphor of the copy machine and the application of volition in recent cases suggest that the requirement is not wholly technical. Instead, courts use the technical prongs of volition to approximate when the copying is sufficiently close to the infringing conduct that the machine owner himself can be said to trespass on the exclusive domain of the copyright owner. The problem is this: despite the clear distance between search engines and uploaders of infringing copies, the “third party request” element of the volition test would presently prevent courts from finding that search engines lack volition. This Comment argues that the test should be subtly retooled to accommodate the search engine model.

  • The Unmanned Voyage: An Examination of Nanorobotic Liability

    The book and movie “The Fantastic Voyage” is repeatedly linked to discussions of nanotechnology. The plot consists of a crew of people that are shrunk to what we could call “nanosize” who travel in a submarine throughout a human body. Although the situation seemed unfathomable in 1966, scientists are trying to make it a reality using nanorobots. However, the nanorobots that will possibly venture through our bodies for medicinal purposes will not be manned by miniature humans to control their actions. Instead, the robots could be triggered by chemical stimuli or remotely controlled by doctors. Robot autonomy produces complicated questions of liability for the products liability industry and medical professionals. The actors involved in this dilemma will predictably include the designers and manufacturers of nanorobots and the doctors who may control them. Due to the advent of nanojuries and in response to government agencies requesting public opinion in lieu of implementing strict regulations from the outset, the discussion of liability is complicated by including the public who will later act as the consumers of these products. The liability concerns that have been voiced give rise to discussion of how the nanotech industry can prevent the debacle that occurred with the asbestos industry. The one thing we know for certain is that we do not know the full risk and potential of nanoproducts.

  • Transactions of Virtual Items in Virtual Worlds

    Right now there is a man somewhere entering a shoe store. Inside the store, television monitors are broadcasting information on the latest footwear. Other customers are browsing through the displays piled high with shoeboxes. The man speaks to the salesperson and then selects a pair of sneakers. As he leaves the store he realizes the shoes are not exactly what he saw advertised on the television screens. Confused, the man backtracks into the store and asks to make a return. “We don’t give refunds here,” replies the salesperson, “this isn’t real life.”

  • The Battlefield of Cyberspace: The Inevitable New Military Branch — The Cyber Force

    With all the technical wonders and benefits associated with cyberspace, few understand that cyberspace is also a new global battlefield that encompasses households, corporations, universities, governments, militaries, and all categories of critical infrastructures. While sipping a low-fat, no foam, soy latte at a café, a cyber warrior of a nation state or a cyber terrorist may access the Internet and unleash attacks within cyberspace. Indeed, in contrast to a suicide bomber, a cyber terrorist is not limited to just one act of terrorism within cyberspace (“cyber terrorism”). In order to protect the health, wealth, and safety of the United States and its citizens from cyber attacks, presidential directives, executive orders, legislation, agency policies, and warnings have been issued. As a result, for several years, the United States Air Force, the Secret Service, the Federal Bureau of Investigation (FBI), the Department of Homeland Security (DHS), the Homeland Security Council, the Department of Defense (DOD), the Office of Management and Budget (OMB), and other federal agencies have operated to secure cyberspace. In fact, in 2006, the Air Force officially elevated its cyberspace operations’ profile by assigning the 8th Air Force as the new Air Force Cyberspace Command. Consequently, this article argues that, inevitably, the United States Congress will have to consider elevating United States cyberspace operations to more than a command within the Air Force, but rather, a new military branch: the Cyber Force. For a couple of years, cyber operations may hatch and be fed within the Air Force’s nest, but in the future, the Air Force will need to push cyber operations from its nest so it can fly as the Cyber Force.

  • Tax Strategy Patents: Why the Tax Community Should Not Exclude the Patent System

    A relatively recent phenomenon of patents covering tax saving strategies has generated an overwhelmingly negative response from the tax community. This Article reviews current patent laws in the context of tax strategy patents and business method patents (of which tax strategy patents are a subset), and then analyzes the major concerns voiced by opponents of tax strategy patents. The Article suggests that the lack of searchable prior art and patent examiner expertise are temporary problems that can and will be adequately addressed by the Patent Office and the tax community.
     
    A relatively recent phenomenon of patents covering tax saving strategies has generated an overwhelmingly negative response from the tax community. This Article reviews current patent laws in the context of tax strategy patents and business method patents (of which tax strategy patents are a subset), and then analyzes the major concerns voiced by opponents of tax strategy patents. The Article suggests that the lack of searchable prior art and patent examiner expertise are temporary problems that can and will be adequately addressed by the Patent Office and the tax community.
     
    • requiring patent applicants to base tax strategy patent applications on current tax laws, and to identify and explain the primary tax laws relevant to an alleged invention,
     
    • reviewing all tax strategy patents under a strict obviousness standard based on the recent KSR v. Teleflex Supreme Court case, and
     
    • amending the tax laws to make the use of patented tax strategies reportable transactions.
     
    Minimizing the issuance of “bad” tax strategy patents will result in a patent system whose value to the public correlates with the value of the tax planning profession as a whole. Thus, interested parties should focus their efforts not on eliminating tax strategy patents, but on increasing the quality of issued patents and improving the tax laws under which any such patents would operate.

  • Placing a Glove on the Invisible Hand: How Intellectual Property Intellectual Property Rights May Impede Innovation in Energy Research and Development (R & D)

    Contrary to the impassioned view that strong intellectual property rights always spur innovation, this Article focuses on how a host of intellectual property barriers may impede the diffusion of renewable energy technologies, clean coal systems, and alternative vehicles. High transaction costs, legal and structural problems at the U.S. Patent and Trademark Office, cognitive biases, anti-competitive patent techniques, and disintegrating government-university-industry partnerships can prevent the innovation and diffusion of clean energy technologies. Quick and decisive action may be warranted to overcome these barriers if greenhouse gas reducing energy systems are to reach commercialization.

  • Balancing Accessibility and Sustainability: How to Achieve the Duel Objectives of the Hatch-Waxman Act Act While Resolving Antitrust Issues in Pharmaceutical Patent Settlement Cases

    Brand-name pharmaceutical companies invent innovative medicines patients need. Due to the high cost associated with
    the research and development (R&D), the innovative medicines are expensive. To make the innovative medicines cheaper and more affordable to the public, Congress enacted the Drug Price Competition and Patent Term Restoration Act of 1984, better known as the Hatch-Waxman Act, to encourage the generic competition. Not only can the generic companies begin developing a generic version of a brand-name drug before the patent expires, they can also use safety and efficacy data in the brand-name company’s original New Drug Application (NDA). Furthermore, the Hatch-Waxman Act also gives an attractive incentive for generic drug companies to challenge brand-name drug companies’ patents before the patent expiration. As a result, patent challenges in the court are intensified. Like any other types of litigation, patent litigation between a brand-name drug company and a generic drug company often settles so that both parties can minimize risk of financial damages.

  • A Likelihood of Infringement: The Purchase and Sale of Trademarks as AdWords

    With access to over eighty-six percent of internet users, Google’s flagship advertising program, AdWords, is one of the most powerful resources for internet advertisers, as well as Google’s highest revenue source. However, Google is operating in a gray area of intellectual property law by allowing advertisers to purchase a competitor’s trademarks or service marks (hereinafter collectively referred to as “trademarks”) as keywords and often encouraging this misuse by affirmatively suggesting trademarks as additional keywords to make the advertising more successful. This type of misuse of trademarks is referred to as trademark keying.

  • Working the Bugs Out of Biologics: A Look at the Access to Life-Saving Medicines Act and Follow-On Biologics

    This paper discusses The Access to Life Saving Medicines Act (Waxman-Schumer Act) introduced by Senator Clinton, Senator
     
    Schumer, and Representative Waxman, and how it seeks to solve the problems of approving follow-on biologics. Patients suffering from cancer, AIDS, and other chronic diseases are those that will be most affected by the bill, along with those states that foot the bill for prescription drug programs like Medicaid. In an effort to relieve some of this burden, the Waxman-Schumer Act seeks to amend the Public Health Services Act much in the same way that the Hatch-Waxman Act amended the Food Drug and Cosmetics Act in 1984, providing for an abbreviated process for traditional generic drugs. Not enough was known about biologics at the time to include them in the Hatch-Waxman Act, and biologics are still subject to a “de facto” patent extension due to the lag for FDA approval of generic biologic drugs.
     
    The Waxman-Schumer Act attempts to address the complexity of biologics and proof of equivalency to a branded biologic by
     
    focusing on therapeutic effect and manufacturing similarities. The questions are whether this approval process actually saves patients and prescription drug providers money, and whether that minimal savings is worth the abbreviation of safety and efficacy of a complex compound like a biologic. This paper answers in the affirmative and addresses the world market implications of having waited so long to take action in approval of follow-on biologics as well as standards currently in place in the industry to alleviate the burden of proving therapeutic similarity. Part II of this paper addresses the legal framework for existing follow-on drugs as well as the prospective framework for followon biologics. Part III discusses the science behind the follow-on drugs and the differences between traditional chemical drugs and biologics, as well as recommendations for ensuring safety of follow-on biologics. Finally, Part IV addresses the economics of delayed U.S. action in providing a framework for an abbreviated approval process along with international perspectives.

  • What Do I Own, If Not Myself?

    New York State has an informed consent procedure for obtaining human tissue for genetic research, which the legislature established to protect donors from discrimination arising out of their genetic information. Moreover, the deidentification and coding requirements set forth by the statute sufficiently insulate a donor’s personal identification information from the test results, protecting them from discrimination.

  • Sex, Lies, and MySpace

    In the past few years, the popularity of social networking websites has exploded. The purpose of social networking websites is for people to have the ability to “expand their circles of friends.” Several social networking sites have become household names—Friendster, Facebook, Xanga, and Classmates are just a few. MySpace.com (MySpace) is the most popular of this group and will be the focus of this Note.

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