Publications and Announcements

Restoring a Public Interest Vision of Law in the Age of the Internet

eCommerce

By: Marc Rotenberg In November 2003, Mr. Marc Rotenberg, Executive Director of the Electronic Privacy Information Center, lectured at Duke Law School on the importance of protecting individual privacy. In his remarks, Mr. Rotenberg recounted the successful campaign against the government’s Clipper Chip proposal. He argued that successful public interest advocacy in the Internet age requires the participation of experts from many fields, public engagement, and a willingness to avoid a simple “balancing” analysis. He further concluded that privacy may be one of the defining issues of a free society in the twenty-first century. Download Full Article (PDF) Cite: 2004 Duke L. & Tech. Rev. 0007

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Wireless Local Number Portability: New Rules Will Have Broad Effects

Media & Communications

By: Stephen M. Kessing After a delay of over seven years, wireless local number portability rules (“WLNP”) finally went into effect on November 24, 2003. These rules, promulgated by the Federal Communications Commission, allow wireless subscribers to change service providers within a given location while retaining the same phone number. The rules also allow consumers to transfer a land-based telephone number to a cellular provider. These new choices will likely have a significant impact on the wireless industry and increase competition in an already intense playing field. This iBrief provides a summary of the new rules, looks at the history and litigation, and predicts how increasing wireless options will benefit consumers and promote competition in local telephony. Download Full Article (PDF) Cite: 2004 Duke L. & Tech. Rev. 0006

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Where Do High Tech Commercial Innovations Come From?

Patents & Technology

By: Lewis Branscomb On February 19, 2004, Dr. Lewis Branscomb gave the Meredith and Kip Frey Lecture in Intellectual Property at Duke Law School. In his speech, Dr. Branscomb discussed various models for turning basic scientific inventions into high-tech innovations and highlighted the roles that universities, private investors, and intellectual property law play in each model. Dr. Branscomb concluded that this intermediary process is the most important step in getting high-tech innovations to market. Download Full Article (PDF) Cite: 2004 Duke L. & Tech. Rev. 0005

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Should Juries Hear Complex Patent Cases?

Patents & Technology

By: Jennifer F. Miller A debate has arisen within the legal community over the existence and constitutionality of a so-called “complexity exception” to the Seventh Amendment. This exception would give a judge the discretion to deny a jury trial in a civil case if he or she feels that the issue is too complex for a jury to decide properly. This iBrief discusses the constitutionality of the complexity exception and the arguments for and against its implementation, with particular emphasis on the application of the exception to patent infringement cases. The iBrief then postulates that, while a blanket exception for patent infringement cases may not be the solution, at a minimum some restructuring of the adjudication process needs to occur in order to ensure that judicial holdings are more than a mere roll of the dice. Download Full Article (PDF) Cite: 2004 Duke L. & Tech. Rev. 0004

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UK’s Implementation of the Anti-Circumvention Provisions of the EU Copyright Directive: An Analysis

Copyrights & Trademarks

By: Aashit Shah The debate surrounding utilization of technological protection measures to secure copyrighted works in the digital arena has raised many an eyebrow in the past few years. Technological protection measures are broadly bifurcated into two categories: access control measures such as cryptography, passwords and digital signatures that secure the access to information and protected content, and copy control measures such as the serial copy management system for audio digital taping devices and content scrambling systems for DVDs that prevent third parties from exploiting the exclusive rights of the copyright owners. Copyright owners have been wary of the digital environment to exploit and distribute their works and therefore employ technological protection measures, whereas consumers and proponents of “free speech” favor the free and unrestricted access, use and dissemination of copyrighted works digitally. Download Full Article (PDF) Cite: 2004 Duke L. & Tech. Rev. 0003

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Investigating Terrorism: The Role of the First Amendment

Media & Communications

By: Amy E. Hooper This iBrief discusses the constitutionality of a government policy enacted shortly after September 11, 2001 that denies public access to deportation hearings in cases allegedly bearing some connection to terrorism. This ibrief discusses two Circuit Courts of Appeals decisions on the issue and argues that this policy is unconstitutional. Download Full Article (PDF) Cite: 2004 Duke L. & Tech. Rev. 0002

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The “Commercial Offer for Sale” Standard After Minnesota Mining v. Chemque

Patents & Technology

By: Campbell Chiang The Supreme Court established a two-part test for determining when an invention is “on sale” under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be “ready for patenting” and subject of a “commercial offer for sale.” In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a “commercial offer for sale.” Download Full Article (PDF) Cite: 2004 Duke L. & Tech. Rev. 0001

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The “Commercial Offer for Sale” Standard After Minnesota Mining v. Chemque

Patents & Technology

By: Campbell Chiang The Supreme Court established a two-part test for determining when an invention is “on sale” under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be “ready for patenting” and subject of a “commercial offer for sale.” In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a “commercial offer for sale.” Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0035

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Piracy Deserves No Privacy

Copyrights & Trademarks

By: Frank Chao The Recording Industry Association of America (“RIAA”), the music industry’s trade and lobbying group, recently initiated a controversial tactic to bring to surface previously anonymous digital pirates of the Internet. This aggressive tactic aims to make safe the digital oceans for copyright and involves identifying and bringing claims against infringing individuals who download, swap, and/or post copyrighted music illegally via the Internet. The RIAA cares not who the infringers are or whether the infringers know the illegality of their actions. Nor does the music industry concern itself with the inevitable storm of backlash bound to fall upon them for suing uninformed or unintentional infringers. Internet users and privacy advocates, however, care all too much. This i-brief attempts to alleviate the fears of privacy infringement by bringing to light certain safeguards built into the Digital Millennium Copyrights Act (“DMCA”) to deal with the possibility of both fraudulent identity subpoenas and infringement into personal privacy. In addition, case law will show that the subpoena powers of the DMCA will not be abused by those who truly wish to enforce copyright laws and legitimate claims of ownership, thereby maintaining the privacy of law abiding Internet users. Download Full Article (PDF)

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Patenting Computer Data Structures: The Ghost, the Machine and the Federal Circuit

Patents & Technology

By: Andrew Joseph Hollander Courts view “data structures,” the mechanism by which computers store data in meaningful relationships, differently than do computer scientists. While computer scientists recognize that data structures have aspects that are both physical (how they are stored in memory) and logical (the relationships among the stored information), the Federal Circuit, in its attempts to set clear standards of the scope of patentability of data structures, has not fully appreciated their dualistic nature. This i-brief explains what data structures are, explores how courts have wrestled with setting a limiting principle to determine their patentability, and discusses the resultant impact on claim drafting. Download Full Article (PDF) Cite: 2003 Duke L. & Tech. Rev. 0033

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