The Supreme Court, Stare Decisis, and the Role of Judicial Deference in Patent Claim Construction Appeals

The U.S. Court of Appeals for the Federal Circuit reviews de novo the rulings of district judges about patent claim construction. This state of affairs—surprising to many lawyers who are unfamiliar with patent law—is controversial because claim construction is one of the most important and vexing aspects of patent litigation, necessary to the vast majority of patent cases, and because it is probably responsible, at least in part, for the high reversal rate in patent cases. Commentary by both scholars and judges about the standard of review in patent cases has centered on whether the Federal Circuit should change it and review claim construction rulings with deference. This commentary relies on a flawed assumption. The Federal Circuit lacks the authority to review claim construction rulings deferentially, because de novo review is required by the Supreme Court’s decision in Markman v. Westview Instruments. In particular, the Supreme Court stated that claim construction rulings are entitled to stare decisis. This article argues that deference should be granted to the factual findings and acquired technical expertise underlying district courts’ claim construction rulings in at least some limited cases—but it will also explain why change must and should come from the Supreme Court

Recyclable NHC catalyst for the development of a generalized approach to continuous Buchwald-Hartwig reaction and work-up

A generalized approach to the optimization and implementation of Buchwald-Hartwig reactions in flow is reported, through the combination of three key factors: a highly active palladium catalyst; a universal approach for continuous work-up and purification, and a methodology for catalyst recycling and reuse. The palladium N-heterocyclic carbene (NHC) pre-catalyst [Pd(IPr*)(cin)Cl] 4 (IPr* = 1,3-bis(2,6-bis(diphenylmethyl)-4-methylphenyl)imidazol-2-ylidene; cin = η3-cinnamyl) is an excellent choice for continuous Buchwald-Hartwig reactions, due to its inherent high activity and stability. In preparation for running this reaction in flow (published concurrently), a detailed study has been carried out into its water stability, ultimately allowing the recycling of the catalyst in the organic phase up to 3 times in batch mode. A “right-first-time” work-up methodology has also been developed, resulting in a universal protocol that allows the selective extraction of the Buchwald-Hartwig product into the aqueous stream as a salt, while retaining the aryl bromide starting material in the organic stream with the catalyst, thus negating the requirement for further purification. It is therefore envisaged that this approach will particularly amenable to exploitation in the Pharmaceutical industry. An optimized, scalable synthesis of [Pd(IPr*)(cin)Cl] is also reported on multi-hundred gram scale

You Are What You Eat: Within-Subject Increases in Fruit and Vegetable Consumption Confer Beneficial Skin-Color Changes

R Whitehead was funded by an ESRC Studentship.Background: Fruit and vegetable consumption and ingestion of carotenoids have been found to be associated with human skin-color (yellowness) in a recent cross-sectional study. This carotenoid-based coloration contributes beneficially to the appearance of health in humans and is held to be a sexually selected cue of condition in other species. Methodology and Principal Findings: Here we investigate the effects of fruit and vegetable consumption on skin-color longitudinally to determine the magnitude and duration of diet change required to change skin-color perceptibly. Diet and skin-color were recorded at baseline and after three and six weeks, in a group of 35 individuals who were without makeup, self-tanning agents and/or recent intensive UV exposure. Six-week changes in fruit and vegetable consumption were significantly correlated with changes in skin redness and yellowness over this period, and diet-linked skin reflectance changes were significantly associated with the spectral absorption of carotenoids and not melanin. We also used psychophysical methods to investigate the minimum color change required to confer perceptibly healthier and more attractive skin-coloration. Modest dietary changes are required to enhance apparent health (2.91 portions per day) and attractiveness (3.30 portions). Conclusions: Increased fruit and vegetable consumption confers measurable and perceptibly beneficial effects on Caucasian skin appearance within six weeks. This effect could potentially be used as a motivational tool in dietary intervention.Publisher PDFPeer reviewe

How to Sue without Standing: The Constitutionality of Citizen Suits in Non-Article III Tribunals

In recent years, the “injury-in-fact” standing requirement of Article III has frequently impeded attempts by concerned citizens and public interest groups to challenge government actions in federal court. This article proposes a way in which “citizen suits”—lawsuits brought by plaintiffs who wish to challenge perceived illegalities that affect the public as a whole—can be given a federal forum. It argues that, with some limitations, Congress has authority to authorize pure citizen suits in Article I tribunals, and discusses the (surmountable) obstacles that such fora pose. After discussing the constitutionality of citizen suits in Article I tribunals, the article then turns to precedents that shed light on how such tribunals might function. It highlights two, one in the United States., one abroad. In the United States, the advisory opinions of the U.S. Court of Federal Claims are a little-known example of “cases” without standing in an Article I tribunal today. In Australia—which, though it obviously follows a different constitution with different requirements, has a government similar in structure to the United States’—the Administrative Appeals Tribunal is a model for how generalized grievances with government affairs might be aired in a court-like setting. In short, the U.S. Constitution permits citizen suits—just not in Article III courts

The Case for Application-Specific Benchmarking

Most performance analysis today uses either microbenchmarks or standard macrobenchmarks (e.g., SPEC, LADDIS, the Andrew benchmark). However, the results of such benchmarks provide little information to indicate how well a particular system will handle a particular application. Such results are, at best, useless and, at worst, misleading. In this paper, we argue for an application-directed approach to benchmarking, using performance metrics that reflect the expected behavior of a particular application across a range of hardware or software platforms. We present three different approaches to application-specific measurement, one using vectors that characterize both the underlying system and an application, one using trace-driven techniques, and a hybrid approach. We argue that such techniques should become the new standard.

Phytopigments as biomarkers of selectivity in abyssal holothurians; interspecific differences in response to a changing food supply

Holothurians dominate the abyssal megabenthos. They are key consumers and bioturbators of surficial sediment. Compounds essential for holothurian reproduction, such as carotenoids, are in short supply in the deep ocean. Holothurians cannot synthesise carotenoids de novo; the compounds are supplied with the flux of phytodetritus. Therefore, the supply of these compounds may play an important role in regulating processes on the seafloor. This study examines the link between the diet of abyssal holothurians and their ovarian carotenoid biochemistry. Phytodetritus, surficial sediment, holothurian gut content and ovaries were sampled in June 2004 and in July 2005 at the Porcupine Abyssal Plain (PAP), NE Atlantic. Gut content chlorophyll a concentration showed that Amperima rosea, Peniagone diaphana and Oneirophanta mutabilis fed selectively on fresh organic matter, although when this was scarce, O. mutabilis was outcompeted and fed on more refractory material. All three species display consistent ovarian carotenoid profiles and have relatively high carotenoid concentrations in their ovaries. Psychropotes longicauda, Paroriza prouhoi, Pseudostichopus aemulatus, P. villosus and Molpadia blakei fed less selectively and exhibited low ovarian carotenoid concentrations with inconsistent profiles. The results suggest that abyssal holothurian ovarian biochemistry is a complex function of OM supply, holothurian feeding guild and reproductive adaptation. Changes in upper ocean biogeochemistry, altering the composition of organic matter reaching the deep-sea floor, may favour certain holothurian species, as suggested by the interspecific differences in holothurian ovarian biochemistry. This may lead to large community changes as seen at the PAP, which can alter the reworking rates of sediment, probably affecting carbon burial. The study also demonstrated that using the presence of biomarkers in gut contents to infer feeding selectivity should be used with caution. Only biomarkers in gut contents that are not present in the tissues of the holothurians (e.g., chlorophyll a) should be used to determine their feeding selectivity

The effect of perceived risks on the demand for vaccination: results from a discrete choice experiment.

The demand for vaccination against infectious diseases involves a choice between vaccinating and not vaccinating, in which there is a trade-off between the benefits and costs of each option. The aim of this paper is to investigate these trade-offs and to estimate how the perceived prevalence and severity of both the disease against which the vaccine is given and any vaccine associated adverse events (VAAE) might affect demand. A discrete choice experiment (DCE) was used to elicit stated preferences from a representative sample of 369 U.K. mothers of children below 5 years of age, for three hypothetical vaccines. Cost was included as an attribute, which enabled estimation of the willingness to pay for different vaccines having differing levels of the probability of occurrence and severity of both the infection and VAAE. The results suggest that the severity of the health effects associated with both the diseases and VAAEs exert an important influence on the demand for vaccination, whereas the probability of these events occurring was not a significant predictor. This has important implications for public health policy, which has tended to focus on the probability of these health effects as the main influence on decision making. Our results also suggest that anticipated regrets about the consequences of making the wrong decision also exert an influence on demand

Thoracic aorta: rapid black-blood MR imaging with half-Fourier rapid acquisition with relaxation enhancement with or without electrocardiographic triggering

PURPOSE: To evaluate and compare findings for thoracic aortic disease with three black-blood magnetic resonance (MR) pulse sequences: half-Fourier rapid acquisition with relaxation enhancement (RARE), with and without electrocardiographic (ECG) triggering, and ECG-triggered turbo spin echo (SE). MATERIALS AND METHODS: Axial black-blood MR images of the chest acquired at 1.5 T with a phased-array coil were obtained in 38 consecutive patients referred for evaluation of thoracic aortic disease. ECG-triggered and nontriggered half-Fourier RARE images were compared with T1-weighted ECG-triggered turbo SE images. Two readers independently scored images for each of the following parameters: ghosting artifacts; clarity of the mediastinum, cardiac chambers, and aortic wall; conspicuity of abnormality; intraluminal signal void uniformity; and overall image quality. RESULTS: Both half-Fourier RARE sequences outperformed the turbo SE sequence for all measured parameters. Scores for the ECG-triggered half-Fourier RARE sequence were significantly (P <.05) higher than those for the nontriggered version for clarity of the mediastinum and aortic wall, conspicuity of any abnormality other than aortic dissection, and overall image quality. Mean acquisition times for the ECG-triggered (48 seconds) and nontriggered (30 seconds) sequences were significantly shorter than that for the turbo SE sequence (2 minutes 20 seconds). CONCLUSION: Rapid black-blood half-Fourier RARE sequences, with or without ECG triggering, can replace ECG-triggered turbo SE sequences for evaluation of thoracic aortic disease