2004-2005
Articles
Should Juries Hear Complex Patent Cases?
Jennifer F. Miller
Date posted: 4-2-2004
A debate has arisen within the legal community over the existence and constitutionality of a so-called "complexity exception" to the Seventh Amendment. This exception would give a judge the discretion to deny a jury trial in a civil case if he or she feels that the issue is too complex for a jury to decide properly. This iBrief discusses the constitutionality of the complexity exception and the arguments for and against its implementation, with particular emphasis on the application of the exception to patent infringement cases. The iBrief then postulates that, while a blanket exception for patent infringement cases may not be the solution, at a minimum some restructuring of the adjudication process needs to occur in order to ensure that judicial holdings are more than a mere roll of the dice.
Topic: Patents & Technology
Where Do High Tech Commercial Innovations Come From?
Lewis Branscomb
Date posted: 5-12-2004
On February 19, 2004, Dr. Lewis Branscomb gave the Meredith and Kip Frey Lecture in Intellectual Property at Duke Law School. In his speech, Dr. Branscomb discussed various models for turning basic scientific inventions into high-tech innovations and highlighted the roles that universities, private investors, and intellectual property law play in each model. Dr. Branscomb concluded that this intermediary process is the most important step in getting high-tech innovations to market.
Topic: Patents & Technology
Wireless Local Number Portability: New Rules Will Have Broad Effects
Stephen M. Kessing
Date posted: 6-9-2004
After a delay of over seven years, wireless local number portability rules ("WLNP") finally went into effect on November 24, 2003. These rules, promulgated by the Federal Communications Commission, allow wireless subscribers to change service providers within a given location while retaining the same phone number. The rules also allow consumers to transfer a land-based telephone number to a cellular provider. These new choices will likely have a significant impact on the wireless industry and increase competition in an already intense playing field. This iBrief provides a summary of the new rules, looks at the history and litigation, and predicts how increasing wireless options will benefit consumers and promote competition in local telephony.
Topic: Media & Communications
Restoring a Public Interest Vision of Law in the Age of the Internet
Marc Rotenberg
Date posted: 6-23-2004
In November 2003, Mr. Marc Rotenberg, Executive Director of the Electronic Privacy Information Center, lectured at Duke Law School on the importance of protecting individual privacy. In his remarks, Mr. Rotenberg recounted the successful campaign against the government's Clipper Chip proposal. He argued that successful public interest advocacy in the Internet age requires the participation of experts from many fields, public engagement, and a willingness to avoid a simple "balancing" analysis. He further concluded that privacy may be one of the defining issues of a free society in the twenty-first century.
Topic: eCommerce
Virtual Shareholder Meetings
Elizabeth Boros
Date posted: 9-1-2004
Electronic communication impacts how widely-held corporations conduct shareholder meetings. For example, technology has facilitated such options as electronic proxy voting, remote electronic voting, and "virtual meetings." This iBrief examines the idea of "virtual meetings" and argues that they should not entirely replace physical meetings unless an electronic solution can be devised which replicates the face-to-face accountability of management to retail shareholders.
Topic: eCommerce
A Manifesto on WIPO and the Future of Intellectual Property
James Boyle
Date posted: 9-8-2004
In this Manifesto, Professor Boyle claims that there are systematic errors in contemporary intellectual property policy and that WIPO has an important role in helping to correct them.
Topic: International
Protecting the Next Small Thing: Nanotechnology and the Reverse Doctrine of Equivalents
Andrew Wasson
Date posted: 9-15-2004
If even a fraction of the predictions about nanotechnology are realized, our society will be a dramatically different and better place than it is today. Yet, due to the infancy of the field, it is still unclear how traditional patent doctrine will be applied to nanotechnology. As it stands, the creators of nanoscale versions of traditional products might face infringement claims from traditional patent holders. The reverse doctrine of equivalents serves as a possible mechanism to equitably excuse the literal infringement of traditional patents by nanotech inventors in a way that encourages the progress of science.
Topic: Patents & Technology
Date posted: 10-1-2004
With millions of Americans unable to cope with the rising costs of prescription drugs, and many even forced to go without health insurance, the mounting pressure on Congress to enact major healthcare reform culminated in the Medicare Prescription Drug, Improvement, & Modernization Act of 2003. This iBrief examines this legislation, and concludes that it provides elusive benefits for seniors and merely creates a windfall for the pharmaceutical and insurance industries.
Topic: Health & Biotechnology
Privacy, Free Speech & the Garden Grove Cyber Café Experiment
Brett Stohs
Date posted: 10-15-2004
In response to gang violence at local "cyber cafés," the City Council of Garden Grove, California, passed an ordinance requiring cyber cafés to install video surveillance systems. The constitutionality of the provision was subsequently challenged, and a California Court of Appeal determined that the video surveillance requirement did not violate free speech or privacy protections under either the federal or California Constitutions. This decision was immediately challenged, by commentators and a dissenting judge, as opening the door to Orwellian-type, government intrusions into individuals' personal lives. This iBrief analyzes the appellate court's decision and concludes that not only did the majority reach the correct conclusion, but that there is no merit to the dissent's Orwellian fears.
Topic: eCommerce
The Trade of Cross-Border Gambling and Betting: The WTO Dispute Between Antigua and the United States
James D. Thayer
Date posted: 11-5-2004
The first ecommerce dispute to come before the World Trade Organization ("WTO") was billed to be one of David and Goliath proportion. The tiny twin-island nation-state of Antigua and Barbuda challenged the United States' ban on cross-border Internet gambling and betting. As a result of the dispute, the WTO issued a private final report against the United States finding that the ban violates the United States' commitments under the WTO. Shortly before the public release of the final report, both parties petitioned the WTO to indefinitely postpone its release so that the parties could engage in private negotiations. The final report is said to uphold the Panel's interim report that found against the United States by, among other things, rejecting the United States' claim that its ban on cross-border Internet gambling and betting does not violate its WTO obligations because the ban protects public morals. On October 28, 2004, the United States announced that the negotiations had broken down, and that it planned to appeal the Panel's decision to the WTO Appellate Body. This iBrief sets forth the basic background of the dispute and argues that the Appellate Body will have to make at least three controversial findings to uphold the Panel's ruling.
Topic: International
Crossed Signals in a Wireless World: The Seventh Circuit’s Misapplication of the Complete Preemption Doctrine
Matthew J. Kleiman
Date posted: 11-16-2004
As the number of wireless telephone users continues to proliferate, so does the number of lawsuits against wireless service providers. While consumers seek to utilize various consumer-friendly state law causes of action, the wireless industry continues to push for a uniform federal regulatory regime. Ambiguous language in the Federal Communications Act of 1934 ("FCA") and disagreement among the federal circuits has led to much confusion over whether state law claims affecting wireless rates and market entry are removable to federal court by way of "complete preemption." This iBrief argues that FCA's preemption power is limited by its savings clause, failure to establish a comprehensive regulatory scheme, and provision of a significant role for state regulation. Accordingly, the Seventh Circuit erred in Bastien v. AT&T Wireless Services, Inc. when it concluded that the FCA completely preempts certain state law claims against wireless service providers and thereby requires their removal to federal court.
Topic: Media & Communications
1984 Is Still Fiction: Electronic Monitoring in the Workplace and U.S. Privacy Law
Christopher Pearson Fazekas
Date posted: 12-1-2004
Electronic monitoring in the workplace has been the subject of relentless public criticism. Privacy advocates argue that technological advancements have given overbearing employers powerful tools to abuse employee dignity in the name of productivity and that new legislation should bolster workplace privacy rights. This iBrief contends that current U.S. legal doctrine governing electronic monitoring in the workplace is fair given the nature and purpose of the workplace, and potential employer liability for employee misconduct.
Topic: eCommerce
Canning Spam: Consumer Protection or a Lid on Free Speech?
Grant C. Yang
Date posted: 12-21-2004
The United States Congress recently passed the first federal legislation to curb the influx of spam. However, the Controlling the Assault of Non-Solicited Pornography and Marketing Act ("CAN-SPAM Act") left some measures to be enacted by the Federal Trade Commission ("FTC"), and some consumers are calling for the Act to have a broader reach and for the creation of a Do-Not-E-Mail registry. Conversely, the FTC decided to delay the creation of a registry and opted to assist in the development of a new technological authentication system. This iBrief looks at the current state of spam and explains that it is too early to tell whether the effects of the CAN-SPAM Act warrant new anti-spam measures. In addition, it points out that it is questionable whether the FTC's current authentication approach will be effective, and, thus, considers the possible First Amendment challenges to a Do-Not-Call registry as well as other possible anti-spam solutions. In the end, this iBrief postulates that the most effective option might be for the FTC to implement both a Do-Not-Email registry and an authentication system.
Topic: eCommerce
Regulating Innovative Medicine: Fitting Square Pegs in Round Holes
Mark Lavender
Date posted: 1-13-2005
Increasingly, innovative medical products are creating a quandary for the Food and Drug Administration ("FDA") because they often transcend the FDA's traditional categorical approach to regulating medical products. In a recent attempt to simplify this process, the FDA has proposed a new rule for regulating "combination products." This iBrief discusses the FDA's current approach and analyzes the possible affects of the proposed regulation. Because of the many shortcomings of both systems, this iBrief concludes that the FDA should instead stop assigning center jurisdiction based on a product's "primary mode of action," and give the Office of Combination Products internal agency jurisdiction over combination products. This alternative approach would increase consistency and efficiency while maintaining the FDA's high standards for medical product safety and efficacy.
Topic: Health & Biotechnology