Publications and Announcements

Forensic Evidence and Rule 3.8: What Does the Use of Bite Mark Evidence Tell Us About Prosecutorial Ethics?

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By: Brendan Clemente Rule 3.8 of the ABA’s Model Rules of Professional Conduct should include rules that specifically address unethical uses of forensic evidence in criminal prosecutions. Forensic evidence is common in criminal trials. But the traditional rules of ethics do not effectively address the use of forensic evidence. Rule 3.8 should include a rule requiring prompt and full disclosure of information about expert witnesses whom the prosecutor plans to call and all relevant information that the prosecutor knows about a forensic method’s application in the case. Rule 3.8 should also include a requirement that the prosecutor use reasonable diligence to learn about a forensic method and possess a good faith belief that the method’s application in the case will be reliable before introducing the evidence at trial. Download Full Article (PDF) Cite: 22 Duke L. & Tech. Rev. 1

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Causation and Conception in American Inventorship

Alternative Intelligence, Featured Articles, Intellectual Property, Patents & Technology, Recent Publications, Science & Technology Leave a comment

By: Dan L. Burk Increasing use of machine learning or “artificial intelligence” (AI) software systems in technical innovation has led some to speculate that perhaps machines might be considered inventors under patent law. While U.S. patent doctrine decisively precludes such a bizarre and counterproductive result, the speculation leads to a more fruitful inquiry about the role of causation in the law of inventorship. U.S. law has almost entirely disregarded causation in determining inventorship, with very few exceptions, some of which are surprising. In this essay, I examine those exceptions to inventive causality, the role they play in determining inventorship, and their effect in excluding consideration of mechanical inventors under current law. Download Full Article (PDF) Cite: 20 Duke L. & Tech. Rev. 116

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Purpose or Profit?: The Rise of Public Benefit Corporations in the Technology Industry

eCommerce & Business, Featured Articles, Recent Publications, Science & Technology Leave a comment

By: Alanna Potter Over the last several years, the demand for socially responsible companies has exploded. Many states have responded to this demand by offering a new corporate form, the public benefit corporation (“PBC”), which arguably allows companies to prioritize social benefit in a way that traditional corporations cannot. The technology industry has adopted the PBC structure at higher rates than corporations in other industries. This Note offers reasons for the appeal of PBCs to corporations generally and to the technology sector in particular. This Note also explores why technology companies may be able to achieve the goals discussed without the need for PBCs. Download Full Article (PDF) Cite: 20 Duke L. & Tech. Rev. 90

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COVID Vaccines and Intellectual Property Rights: Evaluating the Potential for National Legislation Implementing Global Patent Waivers

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By: Ashley DaBiere Debates over the proper scope of intellectual property protections during the COVID-19 pandemic have occupied newspaper headlines since the first vaccines were developed nearly three years ago. Scholars and key politicians from several nations considered the implementation of a global patent waiver in an effort to make the vaccines more widely available in developing parts of the world. Although the question of whether such a waiver would fulfill this goal remains empirically unanswered and up for debate, the legal structure of United States patent law would make its implementation by Congress difficult given the value placed on intellectual property protections since America’s birth. If lawmakers wish to consider limiting patent rights in an inevitable future pandemic or other national emergency, they would be wise to consider these legal issues ex-ante by revising the Bayh-Dole Act and the existing patent law takings provision. Download Full Article (PDF) Cite: 20 Duke L. & Tech. Rev. 68

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Viagra Did Not Work, but Michael Jordan Still Made It: Trademark Policy Toward the Translation of Foreign Marks in China

Copyrights & Trademarks, Intellectual Property, International Leave a comment

By: Jyh-An Lee & LiLi Yang Most multinational enterprises (MNEs) register their original trademarks in Roman letters in China upon entering the Chinese market. However, many fail to develop and register corresponding Chinese marks because they do not understand local culture and consumers, overvalue consumers’ presumed brand loyalty, or neglect the accompanying trademark issues. This failure enables trademark squatters to register and hold the Chinese marks for ransom or local competitors to free ride on foreign marks using their Chinese translations or transliterations. This Article first introduces the complexity of translating a foreign mark into Chinese, which concerns complex linguistic, cultural, and business challenges. Based on recent court decisions, this Article systematically analyzes the legal basis on which an MNE may claim to protect the Chinese equivalent of its original trademarks. This Article then provides essential business and legal implications of China’s trademark policy toward translating foreign-language marks into Chinese.Download Full Article (PDF)Cite: 20 Duke L. & Tech. Rev. 36

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Space and Existential Risk: The Need for Global Coordination and Caution in Space Development

Space Law Leave a comment

By: Chase Hamilton This Article examines urgent risks resulting from outer space activities under the current space law regime. Emerging literature alarmingly predicts that the risk of a catastrophe that ends the human species this century is approximately 10–25%. Continued space development may increase, rather than decrease, overall existential risk due in part to crucial and identifiable market failures. Addressing these shortcomings should take priority over the competing commercial, scientific, and geopolitical interests that currently dominate in space policy. Sensible changes, including shifting space into a closed-access commons as envisioned by the 1979 Moon Treaty, may help in achieving existential security.Download Full Article (PDF)Cite: 21 Duke L. & Tech. Rev. 1

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Homography of Inventorship: DABUS and Valuing Inventors

Articles, Patents & Technology Leave a comment

By: Jordana Goodman On July 28, 2021, the Device for the Autonomous Bootstrapping of Unified Sentience (“DABUS”) became the first computer to be recognized as a patent inventor. Due to the advocacy of DABUS’s inventor, Dr. Stephen Thaler, the world’s definition of “inventor” has finally fractured – dividing patent regimes between recognition of machine inventorship and lack thereof. This division has sparked many scholarly conversations about inventorship contribution, but none have discussed the implications of a homographic inventorship. This Article addresses the implications of international homographic inventorship – where countries have different notions and rules concerning patent inventorship – and the consequences for failing to understand the divergences that could result in patent invalidation. This Article adds to the literature by addressing Thaler’s tireless inventorship advocacy, highlighting that Thaler uses his position of privilege to argue for inventorship acknowledgement of his machine and simultaneously to relinquish his own inventorship recognition. To emphasize, there is no existing caselaw except the DABUS case where a potential inventor has argued for the acknowledgement of another inventor and simultaneously relinquished their own recognition – whether that unacknowledged inventor was human or not human. Thaler’s advocacy amplifies the need for continued conversation regarding closing the

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Professor Brandon Garrett on Exposing the Flaws in Forensics

DLTR Blog, Scholar Interviews Leave a comment

By Brendan Clemente This past March, Duke Law’s Professor Brandon Garrett released his newest book, Autopsy of a Crime Lab: Exposing the Flaws in Forensics. Professor Garrett founded the Wilson Center for Science and Justice and studies the use of forensic evidence in criminal cases. Brendan Clemente, Duke Law & Technology Review’s (DLTR) Managing Editor, sat down with Professor Garrett to discuss the book. Thank you for joining DLTR to discuss your new book, Autopsy of a Crime Lab: Exposing the Flaws in Forensics. What made you want to delve into this topic in this book? My introduction to forensics came after law school. I took evidence in law school, for which I am glad now that I am now teaching it. We did not cover expert evidence. I did not take law and science classes, and I went to law school having turned away from math and science, like most of us lawyers do. When I was in practice, I worked at a civil rights firm where there were two types of cases one could gravitate toward: police brutality cases and wrongful conviction cases. I told the partners I wanted to work on the police brutality cases. The wrongful

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Food for Thought: Intellectual Property Protection for Recipes and Food Designs

Copyrights & Trademarks, Intellectual Property, Uncategorized Leave a comment

By: Kurt M. Saunders and Valerie Flugge As any chef will tell you, cooking and food preparation is a creative, sometimes innovative, endeavor. Much thought and time is invested in selecting ingredients, developing the process for preparing the dish, and designing an interesting or appealing look and feel for a food item. If this is true, then it should come as no surprise that recipes, food designs, and other culinary creations can be protected by various forms of intellectual property, namely: trade secrets, design and utility patents, trade dress, but usually not copyright. This article considers how intellectual property law has been applied to protect recipes and food designs, along with broader issues relating to how these rights may overlap and their implications for competition. Download Full Article (PDF) Cite: 19 Duke L. & Tech. Rev. 159

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