9 Yale Journal of Law and Technology 1 (2007)

By Gregory Mandel

For the first time in thirty years, the Supreme Court will consider the core patent requirement that an invention be non-obvious. At the heart of the case lies the challenge of how to insulate non-obvious decisions from the distortion of the hindsight bias. This Article reports the latest empirical studies in a line of hindsight research, which present experimental data bearing directly on the issue before the Court: how individuals make non-obvious decisions under existing Supreme Court and Federal Circuit precedent.

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9 Yale Journal of Law and Technology 44 (2007)

By Katarzyna A. Czapracka

U.S. antitrust enforcers see little scope for antitrust policy to mitigate the consequences of imperfect IP policies. They are reluctant to intervene in what is perceived to be the sphere of IP policy and take the view that any competitive concerns are better remedied by changes in the IP policy. This trend corresponds with shielding antitrust policy away from fields occupied by other forms of regulation. Exactly the opposite tendencies are present in EU competition law. Both the European Commission and the ECJ seem to see a role for competition law to correct improvidently defined IPRs, even if it entails adjusting competition principles. It may seem reasonable, as unlike competition policy, most issues relating to IP policy within the European Union are still decided at the national level. Yet, there is an inherent danger in this approach. It may lead antitrust authorities to adopt analytically questionable approaches that undermine the coherence of antitrust law. Competition agencies must be particularly cautious in adopting the measures to curb IP laws, as they may discourage private R&D investment. The views of the Commission on application of Article 82 to interoperability information, as expressed in the Microsoft Decision and the Article 82 Paper, confirm that these reservations are valid.

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9 Yale Journal of Law and Technology 109 (2007)

By Matthew Bloom

After years of failing to meet expectations, both internet and satellite radio programming are finally challenging terrestrial radio in a manner similar to cable’s challenge to broadcast television a generation earlier. These new technologies threaten to hijack market share and revenue from a traditional broadcast medium much as cable did. As they continue to seek new listeners, online and satellite stations have a major advantage over terrestrial broadcasters—they are exempt from Federal Communications Commission (FCC) scrutiny for indecent programming. This Note makes the argument that the broadcasting/non-broadcasting distinction is no longer merited and should be eliminated.

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