Articles

Examining Patent Examination

Mark A. Lemley
Bhaven Sampat

The United States Patent and Trademark Office ("PTO") receives more applications today than it ever has before. What happens to those applications? Patent prosecutors all have stories and personal experiences. Until quite recently, however, this sort of "anecdata" was all that was available, because the law prevented anyone from ever finding out what happened to patent applications that did not ultimately issue as patents.... Read more about Examining Patent Examination

Increasing Certainty and Harnessing Private Information in the U.S. Patent System: A Proposal for Reform

Michael Meehan

Nearly half of litigated patents are invalidated. To address this issue and reduce the number of "bad patents," commentators and industry members have called for reforms to increase certainty in the patent system. Many have also proposed reforms that meet the varied needs of different industries. This paper responds to these prior proposals and proposes reforms that harness information known to patentees. These reforms are designed to meet industry-specific needs, as exemplified by the pharmaceutical and computer industries.... Read more about Increasing Certainty and Harnessing Private Information in the U.S. Patent System: A Proposal for Reform

Brain Imaging for Legal Thinkers: A Guide for the Perplexed

Owen D. Jones
Joshua W. Buckholtz
Jeffrey D. Schall
Rene Marois

It has become increasingly common for brain images to be proffered as evidence in civil and criminal litigation. This Article offers some general guidelines to legal thinkers about how to understand brain imaging studies—or at least avoid misunderstanding them. And it annotates a published brain imaging study by several of the present authors (and others) in order to illustrate and explain, with step-by-step commentary. Read more about Brain Imaging for Legal Thinkers: A Guide for the Perplexed

Rethinking Enablement in the Predictable Arts: Fully Scoping the New Rule

Bernard Chao

In exchange for granting inventors a limited monopoly, the patent laws require inventors to “enable” the public to make and use their invention. In Liebel-Flarsheim Co. v. Medrad, Inc., Automotive Technologies International, Inc. v. BMW of North America, Inc., and Sitrick v. Dreamworks, L.L.C., the Federal Circuit made it far easier to show that patents are invalid based on lack of enablement in the predictable arts. These decisions rely on the enablement doctrine to invalidate claims that appear to be far broader in scope than what the written description of the patents suggests.... Read more about Rethinking Enablement in the Predictable Arts: Fully Scoping the New Rule

A Free Speech Theory of Copyright

Steven J. Horowitz

Copyright is a system of federal regulation that empowers private actors to silence others, yet no one seriously doubts that copyright is consistent in principle with the First Amendment freedom of speech. Scholars and courts have tried to resolve the tension between exclusive rights in expression and free speech in one of two ways: some appeal to copyright’s built-in accommodations to suppress any independent First Amendment analysis, while others apply standard First Amendment tests to evaluate whether and where copyright becomes an unconstitutional burden on speech.... Read more about A Free Speech Theory of Copyright

Taking the "Long View" on the Fourth Amendment: Stored Records and the Sanctity of the Home

Deirdre K. Mulligan
Jack Lerner

In the wake of the California energy crisis of 2000-2001, the California Energy Commission (CEC) and California Public Utilities Commission (CPUC) are aggressively pursuing “demand response” (DR) energy programs aimed at reducing peak energy demand. Demand response systems convey information about market conditions through pricing or reliability signals to customers, who in turn, hopefully, alter their electricity consumption choices. In particular DR programs are aimed at shifting the time at which customers use energy through the implementation of time-varying tariffs.... Read more about Taking the "Long View" on the Fourth Amendment: Stored Records and the Sanctity of the Home

The Olmsteadian Seizure Clause: The Fourth Amendment and the Seizure of Intangible Property

Paul Ohm

The Fourth Amendment's Seizure clause is mired in the Eighteenth century. Its counterpart, the Search clause, has evolved through a steady progression of Supreme Court cases from Katz to Berger to Kyllo, no longer to be confined to the property-based notions of privacy embodied in Olmstead v. United States. Instead it is sensitive to modern privacy concerns by extending Constitutional protection to situations that satisfy the reasonable expectation of privacy test.... Read more about The Olmsteadian Seizure Clause: The Fourth Amendment and the Seizure of Intangible Property

Rights "Chipped" Away: RFID and Identification Documents

Nicole A. Ozer

The ACLU of Northern California has been a leader in generating public and legislative attention to the privacy, personal safety, and financial security risks associated with the use of Radio Frequency Identification (RFID) technology in government-issued identification documents, such as drivers' licenses and student ID cards.... Read more about Rights "Chipped" Away: RFID and Identification Documents

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