The Constitution and the NSA Warrantless Wiretapping Program: A Fourth Amendment Violation?

By Blake Covington Norvell

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11 Yale J.L. & Tech. 228

The tragic event of the Sept. 11 terrorist attack persuaded President George W. Bush to authorize the National Security Agency (NSA) to engage in a warrantless wiretapping program aimed at monitoring international phone conversations between persons residing in the United States and persons believed to be affiliated with terrorist organizations. A firestorm of controversy emerged with heated debate about the legality of the NSA program. Legal scholars’ opinions about the legality of the program widely varied, with some suggesting that the program was a glaring violation of the law while others argued that the President was within the law and that his actions were necessary to protect the security of the nation.

This article addresses whether the NSA spying program violates the Fourth Amendment by examining various legal cases and policy issues. The existing legal literature addressing this question has primarily focused on whether the NSA program violates the Foreign Intelligence Surveillance Act. This article pushes the current debate further by addressing the equally important, but rather difficult question, of whether the NSA spying program violates the Fourth Amendment.

Since the government has not revealed the precise details of the NSA warrantless wiretapping program, the article will construct, and then examine the ramifications of, two different models of how the NSA program likely functions in order to assess the constitutionality of the program as a whole. The article argues that the narrow model of the NSA program is constitutional and would be upheld by the courts, whereas the expansive model of the NSA program would be declared unconstitutional because it violates the Fourth Amendment. The article emphasizes the critically important role that the neutral judge, by only issuing to the government warrants based upon probable cause, plays in upholding and safeguarding the cherished privacy rights the Fourth Amendment guarantees all Americans.

The Doctrine of Equivalents in Various Patent Regimes--Does Anybody Have It Right?

By Nicholas Pumfrey, Martin J. Adelman, Shamnad Basheer, Raj S. Davé, Peter Meier-Beck, Yukio Nagasawa, Maximilian Rospatt and Martin Sulsky

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11 Yale J.L. & Tech. 261

The doctrine of equivalents is arguably one of the most important aspects of patent law. The protection a patent confers is meaningless if its scope is determined to be so narrow that trivial changes to a device bring it out of the bounds of the patent. One of the greatest challenges courts and legislatures therefore face in patent law is to create rules for determining patent scope that maintain the protection a patent is meant to confer while still keeping the patent monopoly within reasonable bounds. Despite the general unity in patent laws among developed countries, the difficulty of this task has led to different results in different jurisdictions. Many jurisdictions have chosen to determine patent scope under a doctrine of equivalents, while others have maintained the position that adequate scope can be found within the meaning of a patent’s claim. Even jurisdictions which agree that a doctrine of equivalents should apply differ significantly in its application. This Article provides an examination of four patent jurisdictions—the United States, the United Kingdom, Germany, and Japan—and their separate answers to the question of patent scope. This Article does not purport to decide which jurisdiction has the right solution, but merely points out that different solutions can be and have been found for the question of equivalents. Although a traditional case of patent infringement under the doctrine of equivalents may find protection under all four jurisdictions, the laws of these countries start to diverge on questions regarding after-arising technology, the essential elements of a patent claim, and equivalents that clearly fall outside the language of a claim. One cannot answer the question, “Does anybody have it right?” without first considering these issues.

Patent and Contribution: Bringing the Quid Pro Quo into Ebay v. MercExchange

By Elizabeth Pesses

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11 Yale J.L. & Tech. 309

In eBay, Inc. v. MercExchange, L.L.C., the Supreme Court declared that an injunction granted to stop and prevent patent infringement is like any other injunction, and therefore should only issue after consideration of traditional equitable factors. It is not yet clear whether this decision has truly changed existing patent law, but one thing is certain—injunctions are no longer viewed as a guaranteed remedy for patent infringement. One potential effect of eBay on the world of technology is on the value of patents. Much of the discussion of eBay has focused on the decision’s effect on patent owners who do not practice their patent. Without the threat of a guaranteed permanent injunction, these patent owners will have less bargaining power in licensing negotiations and might get less favorable licensing arrangements. This note discusses this potential change in patent value and its relation to one primary justification for patent law, the quid pro quo, which views the patent as an exchange between the inventor and the public: invention and disclosure in exchange for the right to exclude. In the post-eBay world, the fact that an injunction is no longer a guarantee may reduce the value of the right to exclude. This may create a disparity in the exchange—the inventor may receive less value from the public in the form of a patent while the public receives more from the invention and disclosure through the denial of an injunction. This note argues that eBay need not conflict with the quid pro quo exchange, and that, although current decisions relying on the Supreme Court’s opinion do not do so, courts can and should use eBay to better tailor the patent right to the value of the actual contribution of invention and disclosure.