Yale Journal of Law & Technology
Volume 13, 2010-2011 Fall Issue
28 U.S.C. § 1498(A) and the Unconstitutional Taking of Patents
By Joshua I. Miller
13 Yale J.L. & Tech. 1
Eminent domain requires a showing of two elements: a property right, and a proper venue to bring suit against the government. 28 U.S.C. § 1498(a) grants patent owners the right to sue the United States for the unauthorized use of patents. This statute and its predecessors have long been viewed as an exercise of eminent domain over the patent property. The Federal Circuit ignored this view in Zoltek v. United States, holding that patents are not subject to eminent domain. However, Congress has acknowledged that litigation costs are a necessary part of a patent taking. If, as precedent established long before Zoltek, Section 1498(a) is an eminent domain statute, its grant of litigation costs to only some entities is unconstitutional under the Fifth Amendment’s just compensation requirement. This Article presents the argument that Section 1498(a) is unconstitutional. It argues that patents are a species of property and that § 1498(a) was intended to provide the proper venue for a patent owner to bring suit against the government for its exercise of eminent domain in using a patent without authorization. It then discusses the just compensation requirement and the constitutional infirmity within Section 1498(a) and presents an amendment to cure that infirmity.
The Problem with Intellectual Property Rights: Subject Matter Expansion
By Andrew Beckerman Rodau
13 Yale J.L. & Tech. 35
This article examines the expansion of the subject matter that can be protected under intellectual property law. Intellectual property law has developed legal rules that carefully balance competing interests. The goal has long been to provide enough legal protection to maximize incentives to engage in creative and innovative activities while also providing rules and doctrines that minimize the effect on the commercial marketplace and minimize interference with the free flow of ideas generally. The expansive view of subject matter protectable via intellectual property law has erased the clear delineation between patent, copyright, and trademark law. This has led to overprotection of intellectual property in the form of overlaps which allow multiple bodies of intellectual property law to simultaneously protect the same subject matter. Such overlapping protection is problematic because it interferes with the carefully developed doctrines that have evolved over time to balance the private property rights in intellectual creations against public access to such creations. This article will examine the competing policies that underlie the various branches of intellectual property law. It will then discuss the expanding domain of subject matter protected by patent, copyright, and trademark law. Finally, it will examine the overlaps that exist under patent, copyright, and trademark law and the resulting problems with regard to software, clothing, computer icons, graphical computer interfaces, music, and useful commercial products.
Information Overload at the U.S. Patent and Trademark Office: Reframing the Duty of Disclosure in Patent Law as a Search and Filter Problem
By Jeffrey M. Kuhn
13 Yale J.L. & Tech. 90
The United States Patent and Trademark Office (USPTO) receives more prior art submissions by patent applicants than its patent examiners have the capacity to process. Although applicant prior art submissions are highly likely to contain references material to prosecution, evidence suggests that overburdened examiners often fail to utilize references submitted by applicants in their examination of patent applications. The information overload suffered by patent examiners has deleterious effects on patent quality, since examiners fail to identify and apply the references most relevant to the examination of patent applications. The vision of patent examiners as perfect filters of patentability and of information as always benefiting the public good is both idealistic and unrealistic. Despite their expertise, patent examiners are human and fallible, vulnerable to the effects of information processing overload and the cognitive biases attendant to decision-making by a boundedly rational actor. Failing to address these problems will likely result in frustrated applicants, overburdened patent examiners, and reduced patent quality. This Article proposes to solve both the plague of inequitable conduct allegations in litigation and the administrative burdens of complying with the duty of disclosure by reframing disclosure obligations for the information age. Reframing the duty of disclosure in this fashion would require no modifications to statutory provisions, few alterations to administrative rules and regulations, and only modest changes to existing case law. Thus, the approach suggested in this Article is both legally conservative and administratively feasible.
Licensing as Digital Rights Management, from the Advent of the Web to the iPad
By Reuven Ashtar
13 Yale J.L. & Tech. 141
This Article deals with the Digital Millennium Copyright Act's anti-circumvention provision, Section 1201, and its relationship to licensing. It argues that not all digital locks and contractual notices qualify for legal protection under Section 1201, and attributes the courts' indiscriminate protection of all Digital Rights Management (DRM) measures to the law's incoherent formulation. The Article proposes a pair of filters that would enable courts to distinguish between those DRM measures that qualify for protection under Section 1201, and those that do not. The filters are shown to align with legislative intent and copyright precedent, as well as the approaches recently adopted by the Fifth Circuit, in MGE v. GE, and the Librarian of Congress, in granting the iPad "jailbreaking" exemption. The Article contends that articulating a coherent standard for legitimate circumvention would serve rightsholders by clarifying the scope of their protections, as well as prospective inventive competitors and generative consumers.
Evolving Entertainment Technology: Can New Types of Fun Lead to New Types of Liability?
By Jennifer Jones
13 Yale J.L. & Tech. 188
The proliferation of mass-market entertainment in the late 20th century saw the emergence of "violent-entertainment cases" - claims alleging that producers of entertainment have some type of duty to prevent the consumers of their violent media from causing harm. With one notable exception, each and every one of these twenty or so claims has been dismissed. Courts have almost unanimously held that there either exists no such duty or that the entertainment in question is protected expression under the First Amendment. But will courts continue to so hold? Overwhelming technological advances in both the software and the hardware behind the entertainment industry have transformed the modern entertainment landscape into one characterized by immersion and pervasiveness - it is now technologically possible to be fully immersed in the entertainment experience, anywhere, all the time. Such technological advances in entertainment have the potential to so significantly alter the type of entertainment produced that certain types of entertainment could potentially lose First Amendment protection. That is, modern entertainment technology-interactive in home gaming, realistic looking avatars, 3D projection, etc.-could potentially facilitate expression that could constitute unprotected incitement under Brandenburg. However, although modern technology could enable the producers of mainstream entertainment to cross a line from simply displaying violence into facilitating violence, whether entertainment producers will actually produce violent content that utilizes these new technological developments in inappropriate ways remains to be seen.