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
Author: dukelawtechreview
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
Periodic Reporting in a Continuous World: The Correlating Evolution of Technology and Financial Reporting
By: Daniel C. Rowe The evolution of technology has drastically altered what it means to be a reporting company in the eyes of the Securities and Exchange Commission. Technological development has also played a large role in the shifting trend from periodic reporting to continuous reporting, as is particularly apparent in the evolution of the Form 8-K. It is true that the increasingly technological world of continuous reporting does not come without disadvantages. This issue brief, however, argues that despite the increased risks and challenges of continuous reporting, its net effect on disclosure, and the investing community generally, is positive. With that benefit in mind, this paper further suggests four new amendments to the Form 8-K. Download Full Article (PDF) Cite: 13 Duke L. & Tech. Rev. 248
Understanding the Backlog Problems Associated with Requests for Continued Examination Practice
By: Sean Tu One of the greatest problems facing the current patent administration is a long patent pendency period. This study focuses on Request for Continued Examination (RCE) practice, and its effects on the current patent application backlog problem. RCEs are used to continue prosecution after a patent examiner has issued a final rejection. However, now that RCEs are placed on an examiner’s special docket, some examiners may pick up prosecution one to two years after the last action. Accordingly, there are great inefficiencies that may be created by this delay, such as relearning issues and questions from the previous action, diminished value of examiner interviews, and a higher likelihood of transfer to a new examiner. This study suggests that the RCE problem may be much worse for some art units compared to others. Specifically, the RCE problem is unevenly distributed between certain art units with technology center 1600 (biotechnology and organic chemistry) suffering the most from unexamined RCEs, while technology center 2800 (semiconductors, electrical and optical systems and components) remain unaffected. This RCE backlog can result in a delay of approximately three years for some art units. Possible solutions to the RCE problem include creating a two-track examiner specialization
Pleading Patents: Predicting the Outcome of Statutorily Heightened Pleading Standards
By: Arjun Rangarajan The tension between an extremely barebones Federal Rules of Civil Procedure Form 18 for patent infringement lawsuits and Supreme Court case law through Twombly and Iqbal has made it difficult for courts to dismiss frivolous patent litigation at the complaint stage. In this article, I look at the Federal Circuit’s treatment of Twombly and Iqbal, empirically evaluate 12(b)(6) motions from various district courts, and summarize local patent rules from the Eastern District of Texas. I conclude that the biggest likely impact of statutorily heightening and defining patent pleading standards through the proposed Innovation Act would be to provide much-needed uniformity in the endeavor of gatekeeping weak lawsuits, without serious adverse impact. Download Full Article (PDF) Cite: 13 Duke L. & Tech. Rev. 195
The Constitutionality and Legality of Internet Voting Post-Shelby County
By: Logan T. Mohs The technological and electoral landscapes have changed drastically since the turn of the century. While it once might have made sense to view voting online as unconstitutional, as opposed to merely impractical, the expanded range of Internet access for minority communities has made that argument tenuous at best. While there still may exist practical and political reasons to avoid Internet voting, the Constitution no longer stands as an effective wall against the practice. Furthermore, the primary statutory obstacle to the implementation of Internet voting on a local level, the Voting Rights Act, has been greatly weakened by the recent Supreme Court decision in Shelby County. As such, now is the perfect time for state-level experimentation in the field of Internet voting. Download Full Article (PDF) Cite: 13 Duke L. & Tech. Rev. 181
The Case for CAPSL: Architectural Solutions to Licensing and Distribution in Emerging Music Markets
By: Cody Duncan Compulsory licensing in music has paved the way for a limited class of new noninteractive services. However, innovation and competition are stifled in the field of interactive or otherwise novel services due to high transaction costs inherent in direct licensing. While the creation of a new compulsory license available to a wider array of services may facilitate growth and diversity in new markets, it is unlikely that the legislative process can deliver a new compulsory regime in time to serve relevant interests. Furthermore, the risk exists that legislation written in response to contemporary technology will likely fail to recognize the diversity within the music industry, and therefore will underserve both artists and potential licensees. As such, this brief argues for the creation and adoption of a new standardized protocol for artists and labels to announce the availability of new content with attached standardized licensing terms for automated integration into the catalogs of new or existing digital music services. Such a protocol would allow for automated systems of pricing, distribution, and tracking to reduce transaction costs, increase market transparency, and commodify user participation. Download Full Article (PDF) Cite: 13 Duke L. & Tech. Rev. 162
What’s It Worth to Keep a Secret?
By: Gavin C. Reid, Nicola Searle, Saurabh Vishnubhakat This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for other intellectual property protections, particularly patents. Accordingly, U.S. public policy correctly places a growing emphasis on characterizing the scope of trade secrets, creating incentives for their productive use, and imposing penalties for their theft. Yet amid this complex ecosystem of legal doctrine, economic policy, commercial strategy, and enforcement, there is little research or consensus on how to assign value to trade secrets. One reason for this gap is that intangible assets in general are notoriously difficult to value, and trade secrecy by its opaque nature is ill-suited to the market-signaling mechanisms that offer at least some traction in other forms of valuation. Another reason is that criminal trade secret law is relatively young, and the usual corrective approaches to valuation in civil trade secrecy are not synonymous with the greater distributive concerns of criminal law. To begin to fill this gap, we examine over a decade of trade secret protection and valuation under the U.S. Economic Espionage Act of 1996.
Making PayPal Pay: Regulation E and its Application to Alternative Payment Services
By: Eric Pacifici In light of the growth of data breaches in both occurrence and scale, it is more important than ever for consumers to be aware of the protections afforded to them under the law regarding electronic fund transfers and alternative payment services. Additionally, it is important that agencies like the Consumer Financial Protection Bureau (“CFPB”), charged with the protection of unsuspecting and often defenseless consumers, are carefully monitoring these protections to ensure they keep pace with the technological evolution of the payment services they regulate. Alternative payment services, such as PayPal, are conducting an enormous number of payments and providing an extremely beneficial service in the era of e-commerce. This Issue Brief argues that, as currently written, the Electronic Fund Transfer Act, implemented by Regulation E, does not adequately protect consumers using these alternative payment services. Regulation E is insufficiently specific and provides circular language in its key definitions, including those for the terms “financial institution” and “account.” These deficiencies could leave consumers engaged with alternative payment services in the unique position of facing unlimited liability for losses resulting from unauthorized electronic fund transfers from their alternative payment service account. Thus, this Issue Brief argues that in order
The Death of Fair Use in Cyberspace: YouTube and the Problem With Content ID
By: Taylor B. Bartholomew YouTube has grown exponentially over the past several years. With that growth came unprecedented levels of copyright infringement by uploaders on the site, forcing YouTube’s parent company, Google Inc., to introduce a new technology known as Content ID. This tool allows YouTube to automatically scan and identify potential cases of copyright infringement on an unparalleled scale. However, Content ID is overbroad in its identification of copyright infringement, often singling out legitimate uses of content. Every potential case of copyright infringement identified by Content ID triggers an automatic copyright claim on behalf of the copyright holder on YouTube and subsequently freezes all revenue streams, for all parties, regardless of the legitimacy of the underlying claim. Using the plight of one video game reviewer known as “Angry Joe” as a paradigmatic example of the problems that Content ID can create, this Issue Brief argues that in its present form, Content ID has had disastrous consequences for the doctrine of fair use, YouTube itself, and ultimately, the very spirit of copyright law. By shifting the neutral presumption accompanied with fair use against the uploader, Content ID effectively overrides judicial precedent. Download Full Article (PDF) Cite: 13 Duke L. &