SEC Reporting Requirements for Publicly Traded Companies Should Not be Expanded Despite Advancements in Information Technology

By: Lindsey Kell

Advancements in information technology allow information to be collected and analyzed quickly within a corporation. As a result, technology also allows the quicker release of information to the Securities Exchange Commission (SEC)—much quicker than the Form 10-K and Form 10-Q releases that are currently required for publicly traded companies. Although publicly traded companies must also disclose certain significant events in Form 8-K, the reporting requirements for publicly traded companies are not nearly as expansive as they could be considering the easy access these companies have to their business information. Even with this in mind, the SEC is well into a reevaluation of Regulation S-K primarily because requirements have accreted over time to become not just burdensome to companies but also blinding to investors who are overwhelmed by the volume of disclosure thrown at them. This paper expounds on these arguments and posits additional arguments for why the SEC should not expand reporting requirements for publicly traded companies. Specifically, expanded requirements are associated with high compliance costs; market forces already induce higher-quality disclosures; the more information companies file with the SEC, the more advantages they give to their competitors; and both the liability concerns and the doctrinal issues already associated with the current requirements will be exacerbated with an expansion of the requirements.

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Cite: 15 Duke L. & Tech. Rev. 196

Posted in Securities Law, Technology and Financial Reporting | Tagged | Leave a comment

Websites as Facilities Under ADA Title III

By: Ryan C. Brunner

Title III of the Americans with Disabilities Act requires public accommodations—private entities that offer goods or services to the public—to be accessible to individuals with disabilities. There is an ongoing debate about whether Title III applies to websites that offer services to the public, but this debate may be resolved in the coming years by litigation or Department of Justice regulations. Assuming for the sake of argument that Title III will eventually be applied to websites, the next inquiry is what that application should look like. The regulatory definition of “facilities” should be amended to include nonphysical places of public accommodations. This change would open the door to a multilayered approach to accessible websites, wherein existing websites are subject to relatively lax requirements but new and altered websites are subject to stricter requirements.

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Cite: 15 Duke L. & Tech. Rev. 171

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Schools, Speech, and Smartphones: Online Speech and the Evolution of the Tinker Standard

By: Aleaha Jones

Under the Supreme Court’s holding in Tinker v. Des Moines Independent Community School District, public schools may only restrict student speech where the speech is reasonably forecasted to cause a “substantial and material disruption.” With online forums calling into question who may control speech and forecast its impact, the circuit courts have granted public schools broad authority to monitor, and punish, their students for online activity that occurs off-campus. The Supreme Court recently declined the opportunity to reverse this disturbing trend by denying certiorari for Bell v. Itawamba County. As a result, questions remain unanswered regarding students’ right to free speech and how courts should address First Amendment cases in the digital realm.

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Cite: 15 Duke L. & Tech. Rev. 155

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What’s in a Name: Cable Systems, FilmOn, and Judicial Consideration of the Applicability of the Copyright Act’s Compulsory License to Online Broadcasters of Cable Content

By: Kathryn M. Boyd

The way we consume media today is vastly different from the way media was consumed in 1976, when the Copyright Act created the compulsory license for cable systems. The compulsory license allowed cable systems, as defined by the Copyright Act, to pay a set fee for the right to air television programming rather than working out individual deals with each group that owned the copyright in the programming, and helped make television more widely accessible to the viewing public. FilmOn, a company that uses a mini-antenna system to capture and retransmit broadcast network signals, is now seeking access to the compulsory license. In three concurrent legal cases in New York, California, and D.C., FilmOn argues that it meets the statutory requirements to classify as a cable system. This Issue Brief examines the legal history of cable systems and considers the effects of agency influence, policy concerns, and the lack of judicial or congressional resolution regarding FilmOn’s contested legal status.

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Cite: 15 Duke L. & Tech. Rev. 139

Posted in Copyrights & Trademarks, Intellectual Property, Media & Communications | Tagged | Leave a comment

Mitochondrial Replacement Therapy and the Regulation of Reproductive Genetic Technologies in the United States

By: Bob Zhao

The ability to alter the genes of future generations no longer belongs in the realm of science fiction. The genetic modification capabilities of modern science are advancing rapidly. Mitochondrial replacement therapy (MRT) represents the first crossing of the germline barrier in humans, and as of February 2015, it is the first procedure of its kind to be legalized in the Western world. How Congress decides to regulate MRT will influence future regulation of all genetic manipulation technologies. This brief argues that the current patchwork regulatory framework established in the United States is insufficient to deal with the complex issues MRT presents. As such, the creation of a new regulatory agency specifically focused on the oversight of reproductive and genetic biotechnologies may be necessary to balance the goals of ensuring the safety of research participants, promoting public debate, and stimulating continued scientific progress.

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Cite: 15 Duke L. & Tech. Rev. 121

Posted in Health & Biotechnology, Science & Technology | Tagged , | Leave a comment

Flying Under the Radar: Low-Altitude Local Drone Use and the Reentry of Property Rights

By: Kenneth Maher

The characteristics and capabilities of civilian drones have proliferated in recent years, giving rise to a burgeoning industry. The popular media and academic literature have predominantly focused on privacy concerns, devoting considerably less attention to the regulatory challenges created by the new technology. Congress instructed the FAA to integrate drones into the National Airspace System in 2012, but rulemaking delays and a moratorium on commercial uses hampered the industry and withheld benefits from the public.

Final regulations are now in place, but the new rules revive legal uncertainty over the constitutional limits of federal authority and the ambiguous vertical bounds of private property rights. Low-altitude local drone use is one of the most promising aspects of the technology, and lies at the outer edge of federal authority. Much of the current debate gets key questions exactly backwards. Under current Supreme Court precedent, the proper legal question is not whether federal airspace authority can extend lower to govern virtually all drone use, but whether drone use pushes private property rights in airspace higher, limiting federal authority. Therefore, this Issue Brief joins the scholarly criticism of FAA efforts to date and calls for a greater focus on clear property rights.

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Cite: 15 Duke L. & Tech. Rev. 102

Posted in Science & Technology | Tagged

Copyright Severability: The Hurdle Between 3D-Printing and Mass Crowdsourced Innovation

By: Alan Fu

3D-printing is gradually becoming widely accessible to the population, and with accessibility come enthusiasm, participation, and ingenuity. Its continued development reflects a potential surge in technological advancement, bestowing on any person with a computer and the right software the ability to design and create. So far, the utilitarian benefits of designs such as blueprints, schematics, and CAD files have always been safeguarded from copyright over-protection through the doctrine of copyright severability. However, the doctrine is applied inconsistently across different circuits and different factual scenarios. This inconsistency can chill innovation by making it impossible to distinguish aesthetic designs protected by copyright from functional designs that are not. Thus, copyright severability does not do enough to protect innovation as 3D-printing begins to make product design more accessible to the general public. A more suitable solution may lie in the abstraction-filtration-comparison test from the software context of copyright infringement.

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Cite: 15 Duke L. & Tech. Rev. 84

Posted in Copyrights & Trademarks, Intellectual Property | Tagged

Putting Fair Use on Display: Ending the Permissions Culture in the Museum Community

By: Rosemary Chandler

Digital technologies present museums with tremendous opportunities to increase public access to the arts. But the longstanding “permissions culture” entrenched in the museum community—in which licenses are obtained for the use of copyrighted materials regardless of whether such uses are “fair,” such that licenses are not legally required—likely will make the cost of many potential digital projects prohibitively expensive. Ending the permissions culture is therefore critically important to museums as they seek to connect with diverse audiences in the Digital Age. In this issue brief, I argue that such a development will require clear and context-specific information about fair use that enables museum professionals to better understand the appropriate boundaries of fair use, and that a community-based code of best practices—like the College Art Association’s recently released Code of Best Practices for Fair Use in the Visual Arts—is likely the best means to achieve this.

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Cite: 15 Duke L. & Tech. Rev. 60

Posted in Copyrights & Trademarks, Intellectual Property | Tagged

Unprotected and Unpersuaded: The FCC’s Flawed Merger Review Procedures

By: Trey O’Callaghan

In CBS Corporation v. FCC, the D.C. Circuit struck down the Federal Communication Commission’s rules for protecting confidential information that it collects during certain merger proceedings. In response, the Commission released a new order, pursuant to the Charter, Time Warner, and Bright House merger proceeding, for protecting confidential information. This iBrief analyzes the policy and legal implications of the Order, arguing that the Order is unlawful because it violates the Trade Secrets Act and notice-and-comment rulemaking requirements.

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Cite: 15 Duke L. & Tech. Rev. 39

Posted in Intellectual Property, Media & Communications | Tagged

ICRC, NATO and the U.S. – Direct Participation in Hacktivities – Targeting Private Contractors and Civilians in Cyberspace Under International Humanitarian Law

By: Ido Kilovaty

Cyber-attacks have become increasingly common and are an integral part of contemporary armed conflicts. With that premise in mind, the question arises of whether or not a civilian carrying out cyber-attacks during an armed conflict becomes a legitimate target under international humanitarian law. This paper aims to explore this question using three different analytical and conceptual frameworks while looking at a variety of cyber-attacks along with their subsequent effects. One of the core principles of the law of armed conflict is distinction, which states that civilians in an armed conflict are granted a set of protections, mainly the protection from direct attacks by the adversary, whereas combatants (or members of armed groups) and military objectives may become legitimate targets of direct attacks. Although civilians are generally protected from direct attacks, they can still become victims of an attack because they lose this protection “for such time as they take direct part in hostilities.” In other words, under certain circumstances, if a civilian decides to engage in hostile cyber activities (or “hacktivities”), they may well become a target of a direct lethal attack. I will argue that although the answer is highly nuanced and context dependent, the most salutary doctrinal revision that can be made in this area is that the threshold of harm must adapt to the particular intricacies of cyberspace.

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Cite: 15 Duke L. & Tech. Rev. 1

Posted in CyberCrime, International

Police Body Worn Cameras and Privacy: Retaining Benefits While Reducing Public Concerns

By: Richard Lin

Recent high-profile incidents of police misconduct have led to calls for increased police accountability. One proposed reform is to equip police officers with body worn cameras, which provide more reliable evidence than eyewitness accounts. However, such cameras may pose privacy concerns for individuals who are recorded, as the footage may fall under open records statutes that would require the footage to be released upon request. Furthermore, storage of video data is costly, and redaction of video for release is time-consuming. While exempting all body camera video from release would take care of privacy issues, it would also prevent the public from using body camera footage to uncover misconduct. Agencies and lawmakers can address privacy problems successfully by using data management techniques to identify and preserve critical video evidence, and allowing non-critical video to be deleted under data-retention policies. Furthermore, software redaction may be used to produce releasable video that does not threaten the privacy of recorded individuals.

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Cite: 14 Duke L. & Tech. Rev. 346

Posted in Media & Communications | Tagged ,

The Silence After the Beep: Envisioning an Emergency Information System to Serve the Visually Impaired

By: Elana R. Reman

Due to a series of legal and regulatory setbacks, media accessibility regulations for consumers who are blind and visually impaired have lagged significantly behind those for deaf individuals. Until April 2014, when the Federal Communications Commission’s Emergency Information Order took effect, blind consumers were left “in the dark” when their safety mattered most—during weather emergencies—because visual emergency information displayed in the on-screen crawl during television programming was not accessible in an aural format. The Commission now mandates that this information be provided in an aural form through the secondary audio stream for linear programming viewed on televisions and mobile devices and other “second screens” used inside the home over the MVPD’s network, but this requirement leaves many issues unresolved. This Issue Brief examines and analyzes the arguments made by industry and consumer groups for and against expanded regulation, and makes several recommendations that efficiently fill gaps in the current regulatory requirements for accessible emergency information. These recommendations are technically feasible, not unduly burdensome, and necessary to effectuate the purpose of the Twenty-First Century Communications and Video Accessibility Act of 2010. Specifically, the Commission can extend emergency information regulations to the entities it failed to reach with its Emergency Information Order and Second Report and Order by adopting the Linear Programming Definition of an MVPD that it puts forth in its MVPD Definition NPRM. The Commission should adopt this definition, thereby expanding the scope of entities required to comply with the Emergency Information Order, but it should curtail the Order’s rigidity by not passing prioritization guidelines and by removing the requirement to include school closures and changes in the bus schedule in the secondary audio stream.

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Cite: 14 Duke L. & Tech. Rev. 317

Posted in Media & Communications

The Frontiers of Peer-to-Peer Lending: Thinking About a New Regulatory Approach

By: William S. Warren

The growth of online alternative lending presents several advantages for both those seeking credit and those with excess capital to lend. Over the past decade, several different models of peer-to-peer lending have emerged in the US and U.K. Each of these models has developed in response to the different regulatory system it faces, which has led to the models’ different risk and reward profiles. However, the current regulatory framework for regulating peer-to-peer lending, especially in the U.S., leaves much to be desired. The inadequate regulatory regime not only hampers the potential for growth and further innovation in the industry, but also creates risks for consumers, lenders, and, as the sector grows, entire markets. There is no clear or easy answer as to the optimal regulatory regime, but regulators should at least consider the basic functions of peer-to-peer lending and how to address risks with a more comprehensive and sensible model for regulation.

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Cite: 14 Duke L. & Tech. Rev. 298

Posted in eCommerce, Securities Law, Technology and Financial Reporting | Tagged

The NLRB’s Purple Communications Decision: Email, Property, and the Changing Patterns of Industrial Life

By: Josh Carroll

On December 11th, 2014, in a much-anticipated case, the National Labor Relations Board (“NLRB”) held in a 3-2 decision that employees with access to an employer’s email system had a presumptive right to use that email system during non-working time under Section 7 of the National Labor Relations Act (“NLRA”). In an attempt to adapt to the “changing patterns of industrial life,” the NLRB reversed a seven-year precedent by overturning In re Guard Publ’g Co., 351 N.L.R.B. 1110 (2007), and thereby gave employees the statutory right to use employer email systems for non-business purposes.

This issue brief argues that the majority opinion in Purple Commc’ns, Inc., 361 N.L.R.B. No. 126 (2014) erroneously presumed that a ban on employer email systems interfered with employees’ rights to engage in concerted activities under Section 7. In reality, the influx of alternative avenues of communication, such as smartphones, social media, and tablets, have substantially grown for employees over the past several years, thus strengthening employees’ Section 7 rights. The new framework set forth in Purple Communications not only exaggerates the need for employees to exercise their Section 7 rights by using a company’s email system, but also unfairly burdens an employer’s resources, time, and energy in implementing such access. For these reasons, the rule in Purple Communications is unworkable and the prior Register Guard standard should still apply.

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Cite: 14 Duke L. & Tech. Rev. 280

Posted in Media & Communications, Uncategorized | Tagged ,

Informational Inequality: How High Frequency Traders Use Premier Access to Information to Prey on Institutional Investors

By: Jacob Adrian

In recent months, Wall Street has been whipped into a frenzy following the March 31st release of Michael Lewis’ book “Flash Boys.” In the book, Lewis characterizes the stock market as being rigged, which has institutional investors and outside observers alike demanding some sort of SEC action. The vast majority of this criticism is aimed at high-frequency traders, who use complex computer algorithms to execute trades several times faster than the blink of an eye. One of the many complaints against high-frequency traders is over parasitic trading practices, such as front-running. Front-running, in the era of high-frequency trading, is best defined as using the knowledge of a large impending trade to take a favorable position in the market before that trade is executed. Put simply, these traders are able to jump in front of a trade before it can be completed. This Note explains how high-frequency traders are able to front-run trades using superior access to information, and examines several proposed SEC responses.

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Cite: 14 Duke L. & Tech. Rev. 256

Posted in Science & Technology, Securities Law, Uncategorized | Tagged ,

Legal Nature of Emails: A Comparative Perspective

By: Edina Harbinja

There is currently a conflict between laws and the market in their treatment of email. Laws mandate that emails are not protected as property unless copyrightable or protected by another legal mechanism. But the market suggests that emails are user-owned property without further qualification. Moreover, the nature of email is treated slightly differently between the U.S. and U.K. legal regimes. While the current legal regimes applicable to email in the U.K. and U.S. are reasonable, legal harmonization within these systems, and with the service provider market, should be achieved.

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Cite: 14 Duke L. & Tech. Rev. 227

Posted in Copyrights & Trademarks, Media & Communications | Tagged , , ,

Weathering the Nest: Privacy Implications of Home Monitoring for the Aging American Population

By: Jillisa Bronfman

The research in this paper will seek to ascertain the extent of personal data entry and collection required to enjoy at least the minimal promised benefits of distributed intelligence and monitoring in the home. Particular attention will be given to the abilities and sensitivities of the population most likely to need these devices, notably the elderly and disabled. The paper will then evaluate whether existing legal limitations on the collection, maintenance, and use of such data are applicable to devices currently in use in the home environment and whether such regulations effectively protect privacy. Finally, given appropriate policy parameters, the paper will offer proposals to effectuate reasonable and practical privacy-protective solutions for developers and consumers.

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Cite: 14 Duke L. & Tech. Rev. 192

Posted in Patents & Technology, Uncategorized | Tagged

The Red Dawn of Geoengineering: First Step Toward an Effective Governance for Stratospheric Injections

By: Edward J. Larson

A landmark report by the National Academy of Sciences (NAS) issued in 2015 is the latest in a series of scientific studies to assess the feasibility of geoengineering with stratospheric aerosols to offset anthropogenic global warming and to conclude that they offer a possibly viable supplement or back-up alternative to reducing carbon dioxide emissions. The known past effect of major explosive volcanic eruptions temporarily moderating average worldwide temperatures provides evidence in support of this once taboo form of climate intervention. In the most extensive study to date, an elite NAS committee now suggests that such processes for adjusting global temperature, while still uncertain, merit further research and field testing. Every study stresses the need for transparent international governance of stratospheric injections, especially given that the benefits of such interventions are certain to be unevenly distributed and the risks are not fully known. After examining the roadblocks to such governance, this paper explores the statutory and common law frameworks that could provide some stop-gap approaches until the needed regulatory regime emerges.

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Cite: 14 Duke L. & Tech. Rev. 157

Posted in Science & Technology, Uncategorized | Tagged , ,

Aereo and Internet Television: A Call to Save the Ducks (A La Carte)

By: Pooja Patel

If it looks like a duck, swims like a duck, and quacks like a duck, it is probably a duck. The most recent U.S. Supreme Court decision regarding the Copyright Act employed this “duck test” when determining that Aereo, an Internet content-streaming company, violated the Copyright Act by infringing on the copyrights of television broadcast networks. The Supreme Court ruled that Aereo’s Internet streaming services resembled cable television transmissions too closely. Therefore, by streaming copyrighted programming to its subscribers without the cable compulsory license, Aereo violated the Transmit Clause of the 1976 Copyright Act. Subsequently, Aereo used this Supreme Court decision to obtain a compulsory license from the Copyright Office but was denied. Forced back into litigation, Aereo filed for Chapter 11 Bankruptcy

This Issue Brief describes Aereo’s technology, the litigation that followed, and the related precedent, and concludes that the district court should have granted Aereo a Section 111 Statutory License in line with the Supreme Court’s “duck test.” It considers the implications of the Court’s preliminary injunction against Aereo’s “a la carte” TV technology, what this means for the future of similar technological innovation, and the effects on consumers and competition.

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Cite: 14 Duke L. & Tech. Rev. 140

Posted in Copyrights & Trademarks, Intellectual Property, Media & Communications, Uncategorized | Tagged ,

Riley v. California and the Stickiness Principle

By: Steven I. Friedland

In Fourth Amendment decisions, different concepts, facts and assumptions about reality are often tethered together by vocabulary and fact, creating a ‘Stickiness Principle.’ In particular, form and function historically were considered indistinguishable, not as separate factors. For example, “containers” carried things, “watches” told time, and “phones” were used to make voice calls. Advancing technology, though, began to fracture this identity and the broader Stickiness Principle.

In June 2014, Riley v. California and its companion case, United States v. Wurie, offered the Supreme Court an opportunity to begin untethering form and function and dismantling the Stickiness Principle. Riley presented the question of whether cell phone searches incident to a lawful arrest were constitutional. The Court, which had clung to pre-digital concepts such as physical trespass well into the twenty-first century, appeared ready to explore how technology is reshaping historically understood conceptions of privacy. From a broader perspective, the case offers an initial step in reconciling pre-digital rules based on outdated spatial conceptions of physical things with the changing realities of a technology driven world.

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Cite: 14 Duke L. & Tech. Rev. 121

Posted in Science & Technology, Uncategorized | Tagged , , , ,

Frand v. Compulsory Licensing: The Lesser of the Two Evils

By: Srividhya Ragavan, Brendan Murphy, and Raj Davé

This paper focuses on two types of licenses that can best be described as outliers—FRAND and compulsory licenses. Overall, these two specific forms of licenses share the objective of producing a fair and reasonable license of a technology protected by intellectual property. The comparable objective notwithstanding, each type of license achieves this end using different mechanisms. The FRAND license emphasizes providing the licensee with reasonable terms, e.g., by preventing a standard patent holder from extracting unreasonably high royalty rates. By contrast, compulsory licenses emphasize the public benefit that flows from enabling access to an otherwise inaccessible invention. Ultimately, both forms of license attempt to create a value for the licensed product that can be remarkably different from the product’s true market value. Nevertheless, both forms ultimately benefit the end-consumer who pays less to access a product subject to either of these forms of license. In comparing these two forms of licenses, the paper hopes to determine whether one form is better than the other, and if so, from whose perspective—the consumer, the licensor or the licensee. In doing so, this paper compares the different prevailing efforts to embrace such licenses as well as the impact of such licenses on the industry.

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Cite: 14 Duke L. & Tech. Rev. 83

Posted in Intellectual Property, Patents & Technology, Uncategorized | Tagged ,

Noriega v. Activision/Blizzard: The First Amendment Right to Use a Historical Figure’s Likeness in Video Games

By: Joshua Sinclair

Panama’s former dictator, Manuel Noriega, recently sued Activision Blizzard in the California Superior Court for using his likeness and image in the popular video game “Call of Duty: Black Ops II.” In his complaint, Noriega alleged that the use of his likeness violated his right of publicity. Former New York Mayor, Rudy Giuliani, came to Activision’s defense, and filed a motion to dismiss, which was granted. In granting Activision’s motion, the court held that Activision’s use of Noriega’s likeness was transformative and did not violate his right of publicity. This Issue Brief argues that the California Superior Court should not have applied the transformative use test but should have held that Manuel Noriega did not have a right of publicity for his place in Panama’s history.

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Cite: 14 Duke L. & Tech. Rev. 69

Posted in Media & Communications, Uncategorized | Tagged , , ,

The Evolution of Giving: Considerations for Regulation of Cryptocurrency Donation Deductions

By: Ashley Pittman

This Issue Brief looks at the rapidly growing area of cryptocurrency donations to nonprofit organizations. Given the recent IRS guidance issued on taxation of Bitcoin, specifically its decision to treat cryptocurrencies as property, questions now arise as to how charitable contributions of the coins will be valued for tax deductions. Though Bitcoin resembles most other capital gain property, its volatility, general decline in value, anonymity, and potential for abuse require specific guidance on valuation and substantiation so as to handle its unique nature and prevent larger deductions for charitable contributions than those to which taxpayers are entitled.

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Cite: 14 Duke L. & Tech. Rev. 48

Posted in eCommerce, Uncategorized | Tagged ,

Authenticity and Admissibility of Social Media Website Printouts

By: Wendy Angus-Anderson

Social media posts and photographs are increasingly denied admission as evidence in criminal trials. Courts often cite issues with authentication when refusing to admit social media evidence. Cases and academic writings separate recent case law into two approaches: The Maryland Approach and the Texas Approach. The first method is often seen as overly skeptical of social media evidence, setting the bar too high for admissibility. The second approach is viewed as more lenient, declaring that any reasonable evidence should be admitted in order for a jury to weigh its sufficiency. This Brief addresses the supposed differences between the two sets of cases and suggests that courts are not actually employing two distinct approaches. The Maryland Approach courts are not holding social media content to a higher standard than the Texas Approach courts, but are merely responding to a lack of evidence connecting the proffered content to the purported author.

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Cite: 14 Duke L. & Tech. Rev. 33

Posted in Media & Communications, Uncategorized | Tagged , ,

The FTC Has a Dog in the Patent Monopoly Fight: Will Antitrust’s Bite Kill Generic Challenges?

By: Jennifer D. Cieluch

Antitrust laws have been notoriously lenient in the patent realm, the underlying reason being that patents’ grant of exclusion create monopolies that defy antitrust laws in order to incentivize innovation. Thus, antitrust violations have rarely been found in the patent cases. But after the Supreme Court’s holding in FTC v. Actavis, brand name pharmaceutical companies may need to be more cautious when settling Hatch-Waxman litigation with potential patent infringers. Both brand-name drug manufacturers and generic drug manufacturers have incentives to settle cases by having the brand-name pay the generic in exchange for delaying their entry into the market. While courts usually found that these reverse-payment settlements did not violate antitrust laws, the Supreme Court recently held that they sometimes can, even if the settlement’s anticompetitive effects fall within the scope of the exclusionary potential of the patent. The Court tried to take the middle ground after rejecting several bright line rules promulgated by appellate courts, including the Third Circuit’s “quick look” presumption against reverse payment settlements and the Second, Eleventh, and Federal Circuit’s “scope of the patent” test. This note finds that the Supreme Court’s ruling will make the Hatch-Waxman legal landscape murky and, therefore, difficult for district courts to rule on the legality of reverse-payment settlements in the future. The ruling may hinder generics from challenging brand-name manufacturers, a result that would certainly contravene the principle purpose behind the Hatch Waxman Act.

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Cite: 14 Duke L. & Tech. Rev. 1

Posted in Antitrust, Intellectual Property, Patents & Technology | Tagged ,