• COMMENTARY: The Case Against Market Exclusivity for Purified Enantiomers of Approved Drugs

      Carlson, Steven (1999-01-01)
      Advances in synthetic chemistry offer pharmaceutical manufacturers a novel means of extending their monopolies over proprietary drugs beyond the 20-year limit of the patent laws. Pharmaceutical companies now have the capability to produce superior drugs by purifying existing drugs into their isomer components. The Food and Drug Administration (FDA) is considering whether to grant new drug status to these purified compounds, and to afford them several years of market exclusivity. This Comment argues that the FDA should not extend such market exclusivity to purified isomers of existing drugs.
    • COMMENTARY: State Sale of Driver’s License Data Sparks Debate over Federal Privacy Law

      Carlson, Steven (1999-01-01)
      The proliferation of computerized databases of personal information has brought renewed attention to federal privacy law. While privacy rights under the Constitution have traditionally been limited to intimate details of personal lives, recent disputes have raised the question as to whether notions of substantive due process also extend to personal data. The focus of recent disputes has been the practice that thirty-four state motor vehicle departments have of selling the personal data of registered drivers to direct marketing companies and to other firms and individuals.
    • LECTURE: World Patent System Circa 20XX, A.D.

      Mossinghoff, Gerald (1999-01-01)
      With respect to intellectual property, I have good news and bad news. The good news is that it is probably the most active and growing area of law that exists today. People are keenly aware of the importance of intellectual property: to use a phrase from a high-level Japanese commission, this is the “knowledge era.” An article in the Harvard Business Review pointed out that for generations, the wealthiest person in the world was associated with oil. Now the wealthiest person in the world is a knowledge worker, and you’ve seen him on television, at depositions, and in other places. It’s just a sign of the times. So the good news is that people really appreciate intellectual property in all its forms, including patents, trademarks, trade secrets, and copyrights, which protect not only literary and artistic works, but also computer software. Trademarks, of course, ensure orderly commercial development and consumer protection. When you walk into a mall or a supermarket, you really do depend on trademarks to protect yourself and to assure that you will get quality in what you buy. In the area of trade secrets, there recently has been a major development in federal law -- the Economic Espionage Act -- that, for the first time, imposes very heavy criminal penalties for trade secret theft in the United States. In all of its forms, intellectual property is respected and at the cutting edge of human progress. The bad news, as far as the patent system goes, is that the current system is becoming increasingly dysfunctional. I don’t mean that as a criticism of the U.S. Patent and Trademark Office, for we have the most highly-skilled, dedicated patent examiners in the world. Moreover, the patent bar has never been better able to serve its clients. There is, however, an inherent flaw in the current system. It is totally nationalistic: you have to get a U.S. patent, then you have to get a separate Canadian patent, then a separate Mexican patent, and so on. There is no such thing as a North American patent, so there is a large amount of redundancy which, in my opinion, must and will be eliminated as we move forward. A year ago, I was asked to give a briefing on what I envisioned the world patent system to be in the future. I have chosen to call that system the World Patent System Circa 20XX, A.D. My thoughts have been published in Idea and in the Journal of the Patent and Trademark Office Society. With the help of a very dedicated and clever student of mine at the George Washington University Law School, I have broken down the World Patent System article into four major subjects: (1) patent treaties, (2) regional patent systems that exist today, (3) the essential characteristics of a world patent system, and (4) leadership toward that world patent system.
    • LECTURE: About Privacy: Protecting the Consumer on the Global Information Infrastructure

      Valentine, Debra (1999-01-01)
      The Internet is a remarkable tool, providing millions of users easy access to a wealth of information, goods, and services. Its extraordinary growth is propelled in part by exponential growth in the online consumer market. Between early 1997 and December of that year, the number of adults online in the United States and Canada climbed from 51 to 58 million. Of those users, approximately 75% reported that they had shopped for product information on the World Wide Web and 10 million had actually purchased a product or service online. Analysts estimate that Internet advertising-- which totaled approximately $ 300 million in 1996--will swell to $ 4.35 billion by the year 2000. As the Internet expands, so does the potential to acquire and exploit personal information. American businesses have always, of course, collected some information from consumers to facilitate transactions. The Internet is unique, however, in its ability to compile vast amounts of information with great efficiency at low cost. Computers log our answers to questions about personal preferences, favorite activities, family structure, Social Security number, occupation, medical history, income bracket, and credit card number.
    • LECTURE: Enabling the Jury to Apply Patent Law Rationally

      Michel, The Hon. Paul (1999-01-01)
      1 Yale Symp. on L. & Tech. 1 (1999) It is a great pleasure to speak to the Yale Law and Technology Society. What I would like to do is to comment about some of the current trends in intellectual property law as seen from the U.S. Court of Appeals for the Federal Circuit and emphasize certain areas where I think there are a lot of misunderstandings. I also hope to stimulate some responses, ranging from agreement to disagreement to bewilderment, because what I look forward to most is the dialogue that will hopefully follow my remarks.
    • STUDENT WORKS: An Overview of the Pros and Cons of Provisional Patent Applications

      Barney, James (1999-01-01)
      In 1994, Congress enacted the Uruguay Round Agreements Act (URAA) in an effort to bring the United States into conformance with international patent standards and “place domestic applicants on an equal footing with foreign applicants.” The URAA introduced substantial changes in U.S. patent law. One of the most significant changes was the amendment of 35 U.S.C.A. § 111 (West 1994) to allow inventors (both domestic and foreign) to file a special application: the provisional patent application. In the years following ratification of the URAA, much has been written about the various nuances and intricacies of filing provisional patent applications in the United States. In the midst of this voluminous discourse, it has been difficult for the conscientious practitioner to determine exactly what to say to a client who asks, “Should I file a provisional application?” The purpose of this Note is to provide a quick and practical guide to the benefits and shortcomings of filing provisional patent applications, including the use of provisional applications as part of an overall patent filing strategy. Part II will provide a brief overview of provisional applications and how they differ from nonprovisional applications. Part III will evaluate the benefits of filing provisional applications. Part IV will discuss the disadvantages, including potential pitfalls for the unwary. Finally, some general conclusions will be drawn in Part V regarding the use of provisional applications.
    • LECTURE: Foucault in Cyberspace

      Boyle, James (2000-01-01)
      I’m going to talk today about the Internet in relation to political theory and, in particular, to libertarianism. Anyone who has spent time on the Net or who has read the writings of Internet gurus knows that the default set of political assumptions on the Internet is a libertarian set of arguments. In fact, if you had to come up with a technology-or more expansively, a space-that makes libertarianism attractive, it would be the Internet. The Net mirrors some of the more popular libertarian images of the good society. The Net was formed through a relatively decentralized and anarchic process. The state certainly played a huge role in getting the ball rolling by funding research, setting up precursor networks, funding the creation of open standards, and so on. But in spite, or perhaps because, of this state involvement, the Internet developed without a single master plan or scheme. Thus, the way in which the Internet was formed can be seen as an example of the kind of spontaneous, decentralized ordering that is very attractive to libertarian thinking. Indeed this decentralized process of development is one of the reasons why the term “information superhighway” is so inappropriate. The “information superhighway” conjures up a structured world, the kind of Eisenhower world in which the state designs and builds the entire system according to a central master plan. This image is a complete contrast to the decentralized character of the Net and, for libertarians, the unplanned organic nature of its growth is precisely the key to its success.
    • LECTURE: Integrating Patent Law and the Corporation: The Walker Digital Approach

      Alderucci, Dean (2000-01-01)
      In the first half of my talk, I will discuss the integration of the legal requirements that the patent system imposes on corporations, and I will contrast the traditional approach, or the approach that is adopted by most corporations, with the approach I deem the optimal approach, the “Walker Digital Approach.” That approach evolves continually, so it is flexible and it adapts to the way things should be when you have patent law and patent procedures in mind. The second half of my talk will focus more on Walker Digital itself, and the policies that position Walker Digital as a good patentee. I will also discuss our specific inventions, our licensing policies, and our spin-off policies.
    • LECTURE: Netscape and the Law in the Information Age

      Katz, Roberta (2000-01-01)
      Being the general counsel at Netscape was fascinating because Netscape has been involved in many of the most pressing issues concerning the Internet-contracts, copyright, encryption, and privacy, to name a few. The experiences of Netscape show how technology is once again forcing our leaders to deal with many complex issues that make us turn yet again to examine the first principles that have been debated since the founding of our country.
    • LECTURE: Legal Alchemy: The Use and Misuse of Science in the Law

      Faigman, David (2000-01-01)
      Whenever I tell people that I am involved in the area of law and science, they become perplexed. They ask, “What does science have to do with law? Where is there any science in the legal field?” I want to emphasize the fact that science is everywhere. There is no aspect of the law today, whether civil or criminal law, where an education in basic scientific methods would not greatly improve the effectiveness of legal advocacy and policymaking. I have three objectives for my talk today. First, I will outline the various uses of science in the law. Second, I will try to describe some of the fundamental challenges at the intersection of law and science. Specifically, I want to address the question of whether law and science as institutions or disciplines are simply too far apart intellectually to be integrated. Third, I want to present some solutions to give you a sense of why and how the law can integrate science to some extent into its decisionmaking.
    • STUDENT WORKS: Free Speech on the Internet: Does the First Amendment Protect the “Nuremburg Files”?

      Cronan, John (2000-01-01)
      Few, if any, political debates kindle stronger convictions and more impassioned activism than abortion. Every year, approximately 50,000 abortion activists assemble at the annual “March for Life” in Washington. Members of Congress are inundated with calls and letters from constituents expressing their views on abortion. The entrances of abortion clinics across the country are routinely blockaded by picket lines of protesters. Still other activists channel their convictions through service, ranging from volunteering at pro-life counseling clinics to caring for foster children. While most abortion activists choose peaceful demonstration, the sad reality is that a small group of extremists consider aggression to be the most desirable solution. This growing proclivity toward aggression has given rise to a disturbing increase in violence against abortion providers and clinics in recent years. Concomitantly, society has undergone another phenomenon: the growth of the Internet. The number of Internet users has doubled in every year since 1993 and today has burgeoned to approximately 200 million worldwide. Like many controversial debates, abortion has found its way into cyberspace. A quick Internet search will reveal countless newsgroups, listserves, and websites championing pro-life and pro-choice propaganda. Another consequence of the Internet, however, has been the emergence of websites and discussion groups presenting views that many find abhorrent. According to the Southern Poverty Law Center, a leading monitor of hate speech on the Web, the number of websites featuring hate speech has ballooned from one in 1995 to 250 today. These developments test our commitment to the First Amendment, an essential cornerstone upon which our democracy rests, as they may force us to tolerate websites that most find repulsive in the name of free speech. These two forces, the increase in violence toward abortion providers and the constitutional call to protect cyberspace speech, recently came to a head in a lawsuit surrounding a controversial anti-abortion website. This website, commonly known as the “Nuremburg Files,” provided a list of abortion doctors with personal information in a manner that some have considered tantamount to a “hit list.” In response, a coalition of pro-choice organizations and physicians listed on the “Nuremburg Files” brought action against several pro-life organizations and individuals associated with the website, alleging that the website constitutes a threat to their safety. On February 2, 1999, the plaintiffs prevailed in the first round of the battle, winning a $ 107 million jury verdict in Planned Parenthood v. American Coalition of Life Advocates. An appeal from the defendants seems imminent. In fact, some believe this case invokes sufficiently serious constitutional implications to make its way to the United States Supreme Court.
    • Litigation, Privacy and the Electronic Age

      Caplan, Lewis (2001-01-01)
      In this speech, the Honorable Lewis A. Kaplan discusses one problem in the legal system created by advances in technology - the tension between the privacy interests of litigants and the increased availability of information in modern society. Although openness is a central tenet of the legal system, until recent advancements in information technology, significant logistical difficulties in obtaining records on all but the most notable cases made most information unavailable to the public. However, advances in technology have greatly facilitated access to the universe of legal doents. Judge Kaplan explores the potential consequences of increased availability of information in a number of contexts and argues that it imposes an important responsibility on Courts to rethink the boundaries between public and private in litigation and to exercise increased caution in dealing with processes that touch on these boundaries.
    • Internet Privacy: Who Makes the Rules

      Smith, Richard (2001-01-01)
      Richard M. Smith, Chief Technology Officer of the Privacy Foundation, discusses the ways emerging technology infringes consumer privacy on the Internet. He believes the widespread use of cookies and the growing use of online profiling by companies like DoubleClick create serious privacy problems for people who use the Internet. The solution lies in combining the efforts of programmers, who can find ways to eliminate these profiling mechanisms online, and of lawyers, who can structure legal rules to proscribe information misuse.
    • The Sky Is Not Falling: The Effects of Term Adjustment under the American Inventors Protection Act on Patent Prosecution

      Slate, William (2001-01-01)
      Mr. Slate's article considers the likely effects of the patent term adjustment provisions of the American Inventors Protection Act. Contrary to popular expectations, Mr. Slate argues that the Act's term adjustment provisions will have little practical effect on most practitioners' work.
    • Cyberselfish: Ravers, Guilders, Cyberpunks, And Other Silicon Valley LifeForms

      Borsook, Paulina (2001-01-01)
      Paulina Borsook, high-tech cultural commentator and author of Cyberselfish: A Critical Romp Through the Terribly Libertarian Culture of High Tech, discusses Silicon Valley's paradoxical "technolibertarian" attitude towards the government and the Big Capital Establishment who made the meteoric rise of the technology industry possible. Borsook, in deconstructing the myth of the freewheeling Silicon Valley technogogue, exposes the fragile connections between the Randian pretensions of today's near-religious egotism and the genuinely libertarian fringe from the salad days of the Internet.
    • Reexamination: A Viable Alternative to Patent Litigation?

      Carlson, Dale; Crain, Jason (2001-01-01)
      Recent concern over the state of patent law doctrine has led Congress to pass legislation reforming patent reexamination procedures. The effects of the new procedures will remain uncertain for several years. However, Dale Carlson, Co-chair of the Patent Practice Group at Wiggin & Dana, and Jason Crain, a Yale Law School graduate, discuss the results of a preliminary study of the likely impact of the new inter partes reexamination procedure. In this presentation, Carlson and Crain examine some of the driving forces behind the reform initiative and compare ex parte reexamination procedures with inter partes reexamination procedures. In particular, they address concerns of biases inherent in the new procedure. Ultimately, Carlson and Crain suggest that the new procedure will provide a viable alternative to patent litigation, particularly for small inventors.
    • BUILDING SOCIAL NORMS ON THE INTERNET

      Levin, Daniel (2002-01-01)
      This Note examines how architecture, and particularly the design and coding of software on the Internet, helps shape social norms. The Note makes two points about architecture and norms. First, architectural decisions affect what norms evolve and how they evolve. By allowing or facilitating certain types of behavior and preventing others, architecture can promote the growth of norms. On the flip side, architecture not tailored to promote certain positive norms of cooperation or compliance with the wishes of the designer (or in some cases the law) may allow the growth of antisocial norms. Second, because design decisions affect behavior directly as well as indirectly through norms, software engineers must recognize the regulatory function of the code they create. Although online architecture can promote productive social norms, design decisions can also create a backlash by fostering the development of norms that work against the sort of behavior the code is written to promote. The Note begins by describing how architecture works to regulate behavior in the physical world, examines the leading theories of social norm development, and explores the intersection of architecture and norms. The latter part of the Note transposes the general theory of architecture and norms to the Internet world, first describing the particular features of the Internet-anonymity, dispersion, and the free flow of information-that make the process of norm development different in cyberspace than in physical space, and then turning to two examples, online auctions and digital music, to show how software engineers have effectively and ineffectively used code to promote the development of social norms.
    • RIDER TO STUDENT NOTE: PRIVACY WARS IN CYBERSPACE

      Teh, Jeanette (2002-01-01)
      RIDER TO STUDENT NOTE: PRIVACY WARS IN CYBERSPACE: AN EXAMINATION OF THE LEGAL AND BUSINESS TENSIONS IN INFORMATION PRIVACY
    • PRIVACY WARS IN CYBERSPACE: AN EXAMINATION OF THE LEGAL AND BUSINESS TENSIONS IN INFORMATION PRIVACY

      Teh, Jeanette (2002-01-01)
      For all its remarkable attributes, the explosive growth in e-commerce and Internet use has had deleterious consequences for the privacy ofparticipating individuals, who are often unaware of the tremendous amount of information about them that is collected and analyzed These disparate bits of data are amalgamated to yield very identifiable consumer profiles, which are subsequently sold to other organizations, depriving the consumers of their ability to control what they divulge about themselves to others, potentially resulting in a loss of individuality and creativity. Through the use of cookies, which provides numerous benefits to both consumers and retailers, the many advantages of ecommerce applications and business models are realized. However, the reliance on industry selfregulation has led to a plethora ofprivacy infractions in cyberspace, resulting in the enactment of the Canadian Personal Information Protection and Electronic Documents Act (PIPEDA) and the U. S. plan under Bush to introduce privacy legislation after the Federal Trade Commission's recommendation. The task of drafting legislation is wrought with the complexities of balancing the interests of both parties, while attempting to address the tension of employing either overly or under-inclusive language. This difficulty is demonstrated in the analysis of PIPEDA's ambiguities, which is instructive for U S. states seeking to implement similar laws, who should note that privacy legislation ought to mandate full, informed consent through an express and explicit opt-in approach.
    • LESSONS FROM THE UNITED STATES TRADE POLICIES TO CONVERT A "PIRATE": THE CASE OF PHARMACEUTICAL PATENTS IN ARGENTINA.

      BENTOLILA, HERNAN (2003-01-01)
      This analysis describes the radical transformations in pharmaceutical intellectual property protection in Argentina during the 1990s. Most importantly, it highlights the consequences of the use by the United States of unilateral trade weapons to pressure Argentina to adopt certain standards in this field. The enforcement or threatened enforcement of Section 301 of the US Trade Act, along with GSP restrictions, have proven to be controversial tools in protecting US interests abroad, as is demonstrated by the Argentine case. Some positive results were achieved for United States' interests but the United States created at the same time negative implications by pressuringf or more protection in a shorter time than is mandated under TRIPs: in other words, requiring "TRIPs-Plus" standards. The conclusions of this paper could prove useful when analyzing similar cases over remaining TRIPs "transitional period" years in developing and least developed countries regarding the protection of pharmaceutical intellectual property rights.