Publications and Announcements

Why Technology Provides Compelling Reasons to Apply a Daubert Analysis to the Legal Standard of Care in Medical Malpractice Cases

Health & Biotechnology

By: Nichole Hines Traditionally, courts have applied a “customary practice” standard in determining the legal standard of care in medical malpractice cases. Recently, a few courts have abandoned this dated standard and instead applied a Daubert analysis to the standard of care, which focuses on medical evidence that is scientifically based . In light of these recent holdings, this iBrief argues that with the increasing amounts of technologies improving evidence-based medicine, the customary practice standard is no longer a useful or appropriate test for determining the standard of care in medical malpractice cases. By applying a Daubert analysis to an expert’s testimony on the standard of care, the testimony becomes a scientifically based testimony rather than an expert’s notion of what is common practice in the medical profession. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0018

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When Is Employee Blogging Protected by Section 7 of the NLRA?

Media & Communications

By: Katherine M. Scott The National Labor Relations Act forbids employers from retaliating against certain types of employee speech or intimidating those who engage in it. This iBrief examines how blogging fits into the current statutory framework and recommends how the National Labor Relations Board and the courts should address the unique features of employee blogs. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0017

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The Constitutionality of WIPO’s Broadcasting Treaty: The Originality and Limited Times Requirements of the Copyright Clause

International

By: Adam R. Tarosky Because the proposed WIPO Broadcasting Treaty extends perpetual copyright-like protections to unoriginal information, its implementation would violate at least two fundamental limitations on Congress’s Copyright Clause power: the originality and “limited times” requirements. But Congress has a trump card–the Commerce Clause. This iBrief argues that to give proper effect to the limitations of the Copyright Clause, Congress should not be allowed to implement copyright-like legislation under the less restrictive Commerce Clause. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0016

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The End of Net Neutrality

Media & Communications

By: William G. Laxton Jr. In 2005, the FCC changed the competitive landscape of the high-speed Internet access industry by classifying both DSL and cable modem service as “information services.” While many hail this move as a victory for competition and free markets, others fear the ruling could jeopardize the future of the Internet. This iBrief examines the potential end of “net neutrality” and concludes that new federal regulations are unnecessary because antitrust laws and a competitive marketplace will provide consumers with sufficient protection. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0015

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What, if Any, Are the Ethical Obligations of the U.S. Patent Office? A Closer Look at the Biological Sampling of Indigenous Groups

Health & Biotechnology

By: Marina L. Whelan The patenting of biological resources collected from indigenous groups has become a controversial trend. Two U.S. patents in particular, one claiming a cell-line from a 26-year old Guayami woman and one claiming a leukemia virus from a Hagahai man in Papua New Guinea, demonstrate just how volatile this issue has become. This iBrief examines how, in light of such “ethically questionable” patents, the U.S. Patent Office has failed to implement any procedures to identify or curb patent applications involving indigenous peoples. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0014

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Injunction Junction: Remembering the Proper Function and Form of Equitable Relief in Trademark Law

Copyrights & Trademarks

By: Ryan McLeod Injunctions are supposed to be among the most extraordinary remedies in the American judicial system, yet they have become anything but rare in trademark litigation. Although the unique nature of trademark protection may explain the frequency of injunctive relief, the process by which this relief is issued is rapidly devolving into rubber-stamping by the courts. This iBrief argues that courts should (1) recommit themselves to the principles of equity before granting injunctions and (2) seriously apply the specificity requirements of Rule 65(d) of the Federal Rules of Civil Procedure to avoid overly broad orders. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0013

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Download, Stream, or Somewhere in Between: The Potential for Legal Music Use in Podcasting

Copyrights & Trademarks

By: Benjamin Aitken Podcasting is an increasingly popular new digital technology with the potential to be a great conduit of expression. Currently, the use of music is limited in podcasting due in large part to uncertainty as to what rights must be licensed before copyrighted music can be used legitimately. This iBrief examines what legal rights are implicated by podcasting by analyzing U.S. copyright law and comparing related technologies. This iBrief concludes that onerous licensing requirements are unnecessary, and for podcasting to realize its potential, a simple licensing framework must be established. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0012

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Shielding Journalist-“Bloggers”: The Need to Protect Newsgathering Despite the Distribution Medium

Media & Communications

By: Laura Durity The failure to agree on a sufficiently narrow definition of “journalist” has stalled efforts to enact a federal shield law to legally protect reporter-source communications from compelled disclosure in federal court. The increasing use of the Internet in news coverage and the greater reliance by the public on the Internet as a news source creates further problems as to who should qualify for federal shield law protection. This iBrief argues that a functional definition of “journalist” can be created to shield journalists from compelled source disclosure so as to protect the free flow of information to the public, but limits must be set to prevent abuse of such protection. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0011

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Protecting Intellectual Property in the Developing World: Next Stop—Thailand

International

By: Cortney M. Arnold This iBrief examines the U.S. strategy for strengthening the protection of intellectual property rights (IPRs) in Southeast Asia through the use of free trade agreements (FTAs). After briefly examining the U.S. methodology for strengthening IPRs outside the U.S., this iBrief predicts that the intellectual property provisions in the final text of the U.S.-Thailand FTA, which is currently being negotiated, will be very similar to the provisions in previous FTAs that the United States has negotiated with other developing countries. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0010

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Unnecessary Indeterminacy: Process Patent Protection After Kinik v. ITC

Patents & Technology

By: John M. Eden In Kinik v. International Trade Commission, the U.S. Court of Appeals for the Federal Circuit suggested in dicta that the defenses available to foreign manufacturers in infringement actions under 35 U.S.C. § 271(g) in Federal district courts do not apply to exclusion actions before the International Trade Commission. This iBrief argues that this decision is problematic for three reasons: (1) the Federal Circuit’s decision is inconsistent with the ITC’s longstanding tradition of consulting the patent statute when adjudicating exclusion actions under 19 U.S.C. § 1337, (2) the court’s suggestion that the ITC should be given broad discretion to resolve conflicts between the patent statute and the Tariff Act is at odds with the Chevron doctrine, and (3) if the ITC employs the broad discretion that Kinik confers to it by excluding more foreign art than Federal district courts could lawfully exclude under the patent statute, the enforcement of domestic patent policy in the United States could conceivably violate obligations of non-discrimination (Article 27.1) and burden-shifting (Article 34) imposed by the TRIPS Agreement. Download Full Article (PDF) Cite: 2006 Duke L. & Tech. Rev. 0009

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