Afterlife in the Cloud: Managing a Digital Estate

by Jamie P. Hopkins

The digitalization of wealth has challenged the effectiveness and efficiencies of traditional estate planning mechanisms. As such, modified estate planning techniques and the development of digital estate planning services have created serious privacy, security, and efficiency concerns for the transfer and management of digital estates. The creation and adjustment of digital estate planning solutions are required to ensure the privacy, security, and proper disposition of digital estates. However, because the problems facing digital estate planning are extremely complex, a combination of legislative action, creative lawyering, and improved online service agreements are required to effectively and efficiently transform estate planning into a proper mechanism for digital asset management.

Electronic Medical Records and E-Discovery: With New Technology Come New Challenges

by Jeffrey L. Masor

Electronic medical records have created new challenges for lawyers because all of the digitized information is printed on reams of paper during discovery. This makes the record both voluminous and difficult to interpret. This Note examines potential solutions that would allow lawyers to view electronic medical records in a digital format while preserving patient privacy. Two solutions are explored: 1) accessing the electronic medical record remotely by adapting tools that are already in place for doctors to remotely access patient records and 2) detailing a method to export an electronic medical record to a common, interoperable format.

Informed Buyers of E-Discovery: Why General Counsel Must Become Tech Savvy

by John Didday

Corporate counsel needs to understand big data, now. Civil discovery is getting bigger and more expensive by the day, but the legal field has been slow to find a solution. Too often, the huge data sets corporate litigants exchange before trial to aggregate and search large stores data effectively, but the legal system is intransigent; unless a leader brings technology to the law, litigation will only get slower and more expensive. I propose in-house counsel lead the way to implementing big data solutions by becoming informed buyers of electronic discovery. Tech savvy in-house counsel would separate fact from fiction in discovery technology marketing, forcing law firms, courts, and legislators to adapt discovery to the modern world.

Akamai: A Cure for Medical Process Patent’s Prometheus Ailment?

by Joanna Liebes

Despite all of the industry and academic focus on the recent Supreme Court case Mayo v. Prometheus, without the Federal Circuit’s Akamai v. Limelight Networks decision, many medical process patents may be worthless. This note discusses the problem of subject matter eligibility for medical process patents after Mayo v. Prometheus, as it relates to the likelihood of infringement of those patents. After the Mayo decision, practitioners are attempting to redraft claims to ensure they contain patent eligible subject matter, but in doing so, they may be drafting claims that are impossible to directly infringe. This note proposes that the Akamai decision effectively provided a solution to this problem by readdressing the law of divided infringement in the inducement context. This note explores the prominent cases leading up to both decisions and analyzes an exemplary medical process claim to highlight the difficulties erected by Mayo and how Akamai may help overcome them.

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.