Articles

"The Recent Expansion of Extraterritoriality in Patent Infringement Cases"
The rapid pace of globalization has intensified the desire to expand the territorial reach of United States law to determine patent infringement. In an unprecedented move, the Federal Circuit, in AT&T v. Microsoft Corp., held that copying in a foreign country software made in the United States infringed United States patents under United States law. This decision holds a defendant liable for activity occurring entirely outside of the United States. Perhaps, this case reflects aspects unique to the technological nature of software. If so, this decision violates the fundamental principle that all forms of invention are to receive the same treatment under the patent laws without discrimination.
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"Employment Termination for Employee Blogging: Number One Tech Trend for 2005 and Beyond, or a Recipe for Getting Dooced?"
Ellen Simonetti, a Delta Airlines flight attendant, hosted a blog entitled “Queen of the Sky” on which she appeared in her Delta uniform. She was summarily fired. Her termination is among the growing number of cases in which employees have been fired for blogging both in and out of the workplace. The legal issues surrounding these terminations are addressed from both the employee and employer perspectives. The attempt is to demonstrate that in the final analysis, when balancing employee workplace-related rights (freedom of speech and privacy, if any, public policy exceptions to the employment-at-will doctrine, etc.) with those of the employer (protection of proprietary interests in intellectual property, trade secrets, liability for defamation, obscenity, etc.), the employer will probably prevail notwithstanding the overall lack of employer blogging policies or recent statutory enactments which ostensibly limit an employer’s ability to fire at-will employees.
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"Judging Juries: Evaluating Renewed Proposals for Specialized Juries from a Public Choice Perspective"
This article evaluates whether specialized juries are better in dealing with complex cases than lay juries. Public choice theory provides a way to examine the group decisionmaking that occurs in juries. Even the Supreme Court has recognized that juror comprehension levels might differ based on education or inherent ability. Public choice theory indicates collective decisionmaking might differ between lay juries and specialized juries. Informational cascading likely occurs within lay juries when a few jurors have a better ability to comprehend the technical issues in question. Finding a selection method for specialized juries might prove difficult to achieve in practice, but establishing such a selection method for specialized juries by requiring more uniform education or comprehension levels might help to reduce informational cascades.
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"The Case for the U.S. Patent and Trademark Office's Adoption of an Open-Source 'Bounty' System for Reviewing Business Method and Software Patents, in Light of the Patent Infringement Battles Featuring the U.S. Financial Exchanges that Have Been Waged in Recent Years"
In recent years, numerous patent industry experts and members of the public have been clamoring for reforms in the U.S. Patent and Trademark Office’s (“PTO’s”) patent examination procedures - particularly in the wake of the near shutdown of the BlackBerry wireless email messaging system in 2006, due to a rival’s questionable but successful patent infringement suit. In some of these widely publicized cases, including the BlackBerry case, prior art that could have invalidated the controversial patents at the core of the infringement suits was available in the public domain. However, the PTO failed to locate the critical prior art before issuing these patents. As a result, private companies had to expend enormous sums of money in litigation costs, and ultimately in settling the suits against them. Looking forward, to prevent patents that are not novel or otherwise not deserving of monopolistic protection from being wielded in future infringement suits, this Note supports the implementation of a new patent post-grant review system that would enable members of the public to more meaningfully challenge the validity of patents after they are issued. However, this Note further contends that the public should be empowered and more greatly incentivized to challenge the validity of patents in the time period before they are issued as well. It therefore contends that the PTO should fully embrace the open-source paradigm by adopting a “bounty” system that would reward members of the public who successfully assist it in locating prior art that can invalidate pending patents (with a particular emphasis on business method and software patents.) This Note examines both of these proposals in light of the patent infringement suits that have been launched against some of the world’s largest financial exchanges. Of note, the global financial exchanges have recently caught the public’s attention in an unprecedented manner - owing to their merger activity and an explosion in the trading products and technologies that they have been offering. As a result, they may be ripe targets for patent infringement suits in the near future. The proposals in this Note, if implemented, might help to prevent questionable patent infringement suits from being launched against them in the coming years.
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"Nonpublic Information and California Tort Law: A Proposal for Harmonizing California's Employee Mobility and Intellectual Property Regimes Under the Uniform Trade Secrets Act"
California courts increasingly face the question whether the Uniform Trade Secrets Act preempts alternative tort claims alleging the misuse of nonpublic information. Analyzing that question requires a detailed analysis of California's historical treatment of such claims, as well as California's longstanding public policy in favor of employee mobility. The most important question for UTSA preemption is whether California courts recognize a tort theory for information that the plaintiff deems "confidential but not rising to the level of a trade secret." Based on an in-depth historical review of hundreds of cases and numerous tort claims, this Article concludes that California law has not and should not recognize such a theory as a means to evade the Uniform Trade Secrets Act. The doctrine of UTSA preemption provides a means to centralize and harmonize California's rules for nonpublic commercial information and the right of California employees to pursue the jobs of their choosing.
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