Copyright Protection for Search Results: “Hiybbprqag,” “Mbzrxpgjys,” and “Indoswiftjobinproduction”

Since the digital revolution, it is estimated that the sum of all information in the world doubles every two years. Yet information is only useful to the extent people can effectively access and utilize the information they need. The search engine Google has met this challenge better than any of its competitors and as a result has become one of the most profitable companies in the world. In 2010, Google began to suspect that a competing search engine, Bing, was copying Google’s search results in order to gain a competitive edge. Yet, despite the immense financial implications at stake, whether search results have any legal protection is an unsettled question. This note examines whether search engine results are eligible for copyright protection by applying the unique technological features of search engines to relevant copyright doctrines, and discusses whether copyright protection for search results would benefit the public.

E-Discovery in the Cloud Era: What’s a Litigant To Do?

With great technology, comes great responsibility. In an era with increasing use and dependence on cloud computing, e-discovery is becoming increasingly complicated and expensive. These difficulties are further magnified when litigants and their attorneys are unfamiliar with how cloud technology works, and become lost trying to navigate through e-discovery rules in this new context.

Unprepared litigants do not understand how cloud technology can vastly extend the scope of discovery, and in turn, their preservation and production duties. This note provides an extensive background of cloud computing and details the problems litigants are encountering during cloud-based document discovery. This note further recommends practical guidelines for attorneys and their clients to follow before and during litigation.

The Sum of the Parts is Greater Than the Whole: Why Courts Determining Subject Matter Eligibility Should Analyze the Patent-Eligible and Unpatentable Portions of the Claim Separately Instead of Treating the Claim as a Whole

For years, uncertainty has plagued the patent world regarding how to determine if claims are patent eligible. Recent Supreme Court decisions addressing patent eligibility, while resolving the eligibility of the claims before the Court, have not provided a general methodology for lower courts and the Patent and Trademark Office to follow. This note proposes a general method of analysis to determine patent eligibility. First, rather than treat the claim as a whole, the court or examiner should divide a claim into unpatentable and patent-eligible portions. Then the court or examiner should conduct a three-factor analysis to determine if the claim is patent eligible. The proposed three-factor analysis balances (1) the dependency of the invention on the patent-eligible portion of the claim for utility; (2) the amount of preemption of the unpatentable portion of the claim; and (3) the novelty/nonobviousness of the patent-eligible portion of the claim. Analyzing the patent-eligible and unpatentable portions of a claim separately, and disregarding the Court’s admonitions to treat the claim as a whole, allow for greater insight into patent eligibility.


Should We Award Mr. Sugano a Valid Patent? Rethinking the Federal Circuit’s Rigid Written Description Requirement in Gene Patents

Whether a separate written description exists in 35 U.S.C. § 112 of the United States Code has been the subject of much debate. In Ariad v. Eli Lilly, the Federal Circuit attempted to settle the issue. An en banc panel consisting of eleven judges decided the case; and the court also received twenty-five amicus briefs. The arguments encompassed statutory interpretation, legal precedence, and policy concerns. The nine-judge majority favored a separate written description requirement, while Judge Rader and Judge Linn strongly opposed the majority decision. Whether the holding in Ariad is “correct” is beyond the scope of this note. Instead, this note focuses on whether the Federal Circuit has correctly applied this separate written description requirement to gene patent cases.

Titans and Trolls Enter the Open-Source Arena

Open-source software has become a prominent part of the software industry, due in part to its applications in mobile devices, online social networks, and cloud computing. As a result, the open-source community is an increasingly attractive litigation target for patent trolls and titans. While in the past the open-source community focused primarily on ensuring license compliance, it now must reach beyond open-source licensing agreements and vigilantly employ multiple current or as yet untested defensive maneuvers to withstand the threats of patent lawsuits.

A Conversation on Judicial Decision-Making

Recent Supreme Court cases reveal a fascinating conversation across time between the Court and the Federal Circuit. It is a conversation not just about the nature of patents, but also about the nature of judicial decision-making. The conversation implicates how one goes about crafting the rules within an area of law, what approaches are tenable, and what is the appropriate relationship among the various courts. The conversation has the feel of an exchange between a teacher and a student, or perhaps between an adult and an adolescent. As with any conversation of this kind, much of the talking is done by the one who has the wisdom conferred by virtue of superior status, but there are occasional rejoinders from below. This article decodes the conversation, predicts that the Court will have two more pronouncements soon in this area, and suggests an approach that would rationalize the Court’s prior jurisprudence, bringing coherence and general applicability to this area of law.


Open Source and the Age of Enforcement

The last five years have seen the first serious enforcement efforts by licensors of open source software, so we are truly at the dawning of the age of enforcement. But open source claims are not like other claims.  Understanding the distinctions between open source software claims and other intellectual property claims is key to reacting to open source claims gracefully, effectively, and with a minimum of embarrassment and cost.  This Article provides a survey of where we stand today and demonstrates how this area of law has developed.  We will be soon nearing the point where catalogs of open source claims in articles like this one will no longer be sensible or useful, but for now, seeing where we have been neatly explains where we are.

The Medicines Patent Pool: Promoting Access and Innovation for Life-Saving Medicines Through Voluntary Licenses

Monopolies over many life-saving drugs have led to high prices that remain out of reach for patients in the developing world, leading to a crisis of access over these essential medicines. High intellectual property barriers harm not only access to medicines, but can also impact future innovation. In order to address this problem, a proposal for a “patent pool” emerged that would rely on voluntary licenses by patent holders to enable the production of more affordable generic medicines. This article briefly describes the history of patent pools before focusing specifically on the UNITAID-supported Medicines Patent Pool. It analyzes the specific licenses of the Medicines Patent Pool, noting both the positive aspects and areas where future licenses could be improved. In addition to identifying areas for improvement, this article explores the mechanisms, including those that de-link innovation from monopoly pricing, that can be used to achieve these goals and encourage greater participation in the Medicines Patent Pool.

Continue reading

FDA FDA Enforcement of Criminal Liability for Clinical Investigator Fraud

Clinical investigator fraud is a very real problem, and falls squarely within FDA’s mandate to protect the public health.  The Eighth Circuit has held that under this mandate, FDA has the authority to impose affirmative duties to protect the public health by promulgating relevant regulations.  FDA did promulgate such regulations, and the Eighth Circuit held that a failure to follow these regulations is a violation of section 355(i) of the FDCA.  A violation of section 355(i) is considered a violation of section 331(e), and a violation of 331(e) can result in criminal sanctions under section 333(a).  Thus, this tenuous chain of statutes allows the government to bring criminal charges against fraudulent criminal investigators.

The Park Doctrine itself should also be utilized against clinical investigators.  Even if investigators are unaware of wrongdoing, they have the “responsible relationship” with the documents.  Also, currently clinical investigators are beholden to the sponsors, who ultimately sign their paychecks. If they are aware they will be liable, and subject to criminal penalties under the Park Doctrine, even when they are unaware of any problems, they will be more likely to seek out problems and report any wrongdoing they discover.

Finding a “Fit”: Gene Patents and Innovation Policy

The district court’s decision in Ass’n for Molecular Pathology v. U.S. Patent & Trademark Office (the Myriad litigation) that isolated DNA does not constitute patentable subject matter because the isolated DNA is not markedly different from the naturally occurring DNA sequence redrew the lines of patentable subject matter.  The Federal Circuit has subsequently overturned that holding; however, it remains unclear whether gene patents serve the patent system’s underlying objective to encourage innovation.  For the most part, courts have defined what constitutes patentable subject matter, but as the Myriad litigation demonstrates, courts may not be the best institution to consider these complex policy issues.  In light of the Myriad litigation, this Note examines whether there are better institutional alternatives.