[Presentazione del] Convegno di studi "Il processo e le sue alternative: storia, teoria e prassi": Cagliari – Aula Magna Rettorato / Aula Magna Economia – 25-27 settembre 2014

Organizzato dal Dipartimento di Giurisprudenza della Facoltà di Scienze Economiche, Giuridiche e Politiche dell’Università degli Studi di Cagliari, in collaborazione con la Società Italiana di Storia del Diritto e con l’Istituto di Scienze Umane di Firenze, si è tenuto a Cagliari, dal 25 al 27 settembre 2014, il Convegno di Studi “Il processo e le sue alternative: storia, teoria, prassi”

Studi sull’<i>iniuria</i>: l’<i>edictum de convicio</i>

The a. analyses the edict de convicio, one of the special edict de iniuriis, in which iniuria delict has been extended till comprehend, beside the injury to physical integrity, the injury to moral integrity: contumelia. In the edict, the sanctioned behaviour represented one of the many ways to cause contumelia in a subject, but only if committed adversus bonos mores. However, the word convicium, had different meanings, that’s why, in order to reconstruct the exact edictal terminology, the a. considered also its use in common speech. Now that has been clarified in what convicum consists, it is necessary to identify which are the elements that get a convicium allowed by the law into an adversus bons mores act, which is punishable with the actio iniuriarum concession. The work ends with a consideration about iniuria delict general rule, in which even instigation is punishable and the subject must be aimed by the so called animus iniurandi, that is to say the intent to cause iniuria

The Patentability of Financial Methods: The Market Participants’ Perspectives

In the last few years, there has been a renewed interest in the validity of patenting business methods. The issue appeared to be settled in 1998 with State Street Bank & Trust Co. v. Signature Financial Group, Inc. However, in 2008, the Federal Circuit, responding to a more restrictive approach toward the patent system adopted by the Supreme Court, began questioning the soundness of the policy to extend patent protection to business methods. The Federal Circuit’s adjustment of its position occurred explicitly in In re Bilski when the court decided to rehear the case en banc and reconsider the conclusions previously reached in State Street. The Supreme Court subsequently granted certiorari on In re Bilski, and its Bilski decision in June 2010 exacerbated an already heated debate on the patentability of certain subject matters. Ultimately, this quandary about patentability revolves around the empirical question of whether the patent system in a specific sector is “doing its job” or, more specifically, whether the patent system is fostering the creation of additional business methods. To answer this question, I conducted an empirical investigation that involved structured interviews with market participants about the production and consumption of financial methods as a subset of business methods. The data collected in this study reveal that market participants are ambivalent about the benefits that both the financial market and their companies can derive from having exclusive rights on financial inventions. The data also provide a description of the financial market and its dynamics that is difficult to reconcile with the protection of business methods, as currently provided by the patent system. Thus, it raises serious doubts that, in the ten years between State Street and In re Bilski, patent protection has had any impact on innovation in the financial industry

Markets and Patent Enforcement: A Comparative Investigation of Non-Practicing Entities in the UnitedStates and Europe

Is it true that non-practicing entities (NPEs) are primarily a U.S. phenomenon? Over time, several definitions of NPEs have been presented. They range from research institutions that hold patent portfolios for their inventions but do not develop and commercialize any products, to IP asset management firms whose exclusive business is asserting patent claims to collect significant fees from companies operating in certain industries. The latter are also referred to as “patent trolls” and have been the subject of significant debate as to their role in the innovative process in different fields. NPEs are a relatively new phenomenon. Studies have shown that their activity has only become prominent in the United States during the last decade. And these studies have suggested that NPEs are not nearly as active in other countries, namely European countries. Nevertheless, no prior research has attempted to quantify the extent of the international NPE problem nor find possible explanations for the difference. This article investigates whether NPEs are indeed less active in Europe. Interestingly, the findings indicate that NPEs are present in Europe, but their operations there are minimal compared to their operations in the United States. This Article discusses possible explanations for this finding, including a comparative analysis of key differences between European and U.S. industries, remedy systems, and judicial cultures. This Article demonstrates that NPE activity in Europe is more depressed than in the United States because the affected industries– electronics, machinery and computer equipment, software and communication–are smaller in Europe than on the other side of the Atlantic Ocean. It also shows that NPEs operate in Europe despite the presence of certain features of local legal systems—such as fee-shifting— that advocates of patent reform have recommended for adoption to control NPE activity in the United States. Consequently, this Article questions the supposed effects of those proposed reforms. Finally, this Article cautions against reforming the current U.S. patent system to make it more similar to European ones, as the European industries targeted by NPEs are less prosperous than their U.S. equivalents. The impact of these proposed reforms on the activities of practicing entities has not yet been adequately questioned. Even the question of whether NPE activity is in fact harming innovation has not been conclusively answered. Thus, much more investigation is necessary in this field before it would be wise to reform the patent system

LESSONS FROM THE PAST: THE VENETIAN REPUBLIC’S TAILORING OF PATENT PROTECTION TO THE CHARACTERISTICS OF THE INVENTION

In recent years, much discussion in patent law has revolved around granting tailored protection to provide better incentives to inventors in different industries and to increase patent quality. For example, the deliberations that led to the enactment of the Leahy-Smith America Invents Act (AIA) focused specifically on the role of the patent system in different industries as well as on modifying remedies and patent terms to reflect the needs of distinct technology sectors. Whereas in the literature there seems to be substantial agreement on the fact that tailored protection would be beneficial for the effectiveness of the patent system, there is no consensus with respect to which entity should be vested with the authority to produce tailored patent policies, standards, and rules based on the needs of the various industries. Currently, the United States Court of Appeals for the Federal Circuit and the United States Patent and Trademark Office (USPTO) are the two principal candidates for this role. Some of this debate is connected to the broader issue in legal academia of granting general regulatory authority to administrative agencies with highly specialized knowledge. Contrary to other administrative agencies, such as the United States Environmental Protection Agency (EPA), the Securities and Exchange Commission (SEC) or the Occupational Safety and Health Administration (OSHA), Congress has never granted such authority to the USPTO; scholars have criticized this inconsistency. The strongest argument that patent experts, such as Jonathan Masur and Sarah Tran, have used to question the current status of the USPTO refers to the fact that much could be gained from the information that this agency has accumulated through years of experience working with inventors in different industries, particularly with respect to tailoring patent protection. Historically, the Venetian Republic provided tailored patent protection based on the characteristics of the invention. In that context, the entity entrusted with the power to tailor the protection granted in each case was the Senate, the issuing authority. Moreover, although the Venetian Republic enacted what is widely recognized as the first Patent Act in the world in 1474, the Venetian Senate continued its practice of granting tailored patents until the end of the Republic in 1797. In fact, as explained by Luigi Sordelli in 1974, following the enactment of the 1474 Act, inventors could obtain protection in Venice in two ways: through the newly created statutory system or through the much older customary system of senatorial grants. Conclusive evidence that Sordelli’s view was correct is provided in a separate paper that I co-authored with Ted Sichelman and Toni Veneri, in which we shed important new light on the true origin of patent law. In this article, I focus instead on tailoring patent protection. Specifically, I use original documents from the Venetian State Archives to present a detailed account of how the Venetian Republic used itscustomary patent system to tailor protection to the unique characteristics of an invention. Furthermore, I provide a full analysis of what can be learned from the Venetian experience to inform the modern debate on tailoring patent protection. Until now, only two other legal scholars have conducted extensive examinations of the original Venetian patents: Ted Sichelman and Sean O’Connor. The Venetian patent system appears to have been a very successful one; it operated for more than 300 years and during the 16th century helped Venice to transform itself from being a nation of sailors to being a nation of artisans and engineers, and ultimately the center of technological development in Europe. Thus, the Venetian customary patent system offers important lessons on how tailored patent protection and higher patent quality can be achieved. An accurate description of this system is crucial to further understanding the specific steps that we should take to reach these goals today

Rules versus Standards: Competing Notions of Inconsistency Robustness in Patent Law

This Article applies a new paradigm from the field of computer science—inconsistency robustness (IR)—in order to analyze the competing ways in which the Supreme Court and Federal Circuit craft patent law standards and rules. The IR paradigm is a shift from the previous paradigm of inconsistency elimination. The new IR paradigm recognizes that modern, complex information systems must perform notwithstanding persistent and continuous inconsistencies. The focus on IR encourages system designers to recognize the reality of persistent inconsistency when building robust systems that can perform reliably. Legal systems regularly process a great deal of complexity and inconsistency, and thus, by necessity, have always been structured to be inconsistency robust. Accordingly, applying insights from the formal IR paradigm is helpful in analyzing the effective functioning of legal systems. This Article is the first legal article to formally utilize IR in analyzing the legal system. By using IR analysis, the article identifies and analyzes a previously under analyzed persistent pattern within patent law. Specifically, the article shows via example in five separate areas of patent law that the Federal Circuit and Supreme Court repeatedly diverge on the adoption of rules versus standards in patent law. The Article shows that this pattern can be explained by viewing the two courts as rational systems administrators attempting to maintain an inconsistency robust patent system from each of their perspectives as systems administrators. The Article further shows that if the courts adopt a holistic view of IR, they can craft more optimal patent law by taking into account the costs and benefits of the law to all participants and administrators of the patent law system

Determining the cost-effectiveness requirements of an exoskeleton preventing second hip fractures using value of information

Abstract: Background: Falls may lead to hip fractures, which have a detrimental effect on the prognosis of patients as well as a considerable impact on healthcare expenditures. Since a secondary hip fracture (SHF) may lead to even higher costs than primary fractures, the development of innovative services is crucial to limit falls and curb costs in high-risk patients. An early economic evaluation assessed which patients with a second hip fracture could benefit most from an exoskeleton preventing falls and whether its development is feasible. Methods: The life-course of hip fractured patients presenting with dementia or cardiovascular diseases was simulated using a Markov model relying on the United Kingdom administrative data and complemented by published literature. A group of experts provided the exoskeleton parameters. Secondary analyses included a threshold analysis to identify the exoskeleton requirements (e.g. minimum impact of the exoskeleton on patients’ quality of life) leading to a reimbursable incremental cost-effectiveness ratio. Similarly, the uncertainty around these requirements was modelled by varying their standard errors and represented alongside population Expected Value of Perfect Information (EVPI). Results: Our base-case found the exoskeleton cost-effective when providing a statistically significant reduction in SHF risk. The secondary analyses identified 286 cost-effective combinations of the exoskeleton requirements. The uncertainty around these requirements was explored producing further 22,880 scenarios, which showed that this significant reduction in SHF risk was not necessary to support the exoskeleton adoption in clinical practice. Conversely, a significant improvement in women quality of life was crucial to obtain an acceptable population EVPI regardless of the cost of the exoskeleton. Conclusions: Our study identified the exoskeleton requisites to be cost-effective and the value of future research. Decision-makers could use our analyses to assess not only whether the exoskeleton could be cost-effective but also how much further research and development of the exoskeleton is worth to be pursued

Correction to: Determining the cost-effectiveness requirements of an exoskeleton preventing second hip fractures using value of information

An amendment to this paper has been published and can be accessed via the original article

Determining the cost-effectiveness requirements of an exoskeleton preventing second hip fractures using value of information

Abstract: Background: Falls may lead to hip fractures, which have a detrimental effect on the prognosis of patients as well as a considerable impact on healthcare expenditures. Since a secondary hip fracture (SHF) may lead to even higher costs than primary fractures, the development of innovative services is crucial to limit falls and curb costs in high-risk patients. An early economic evaluation assessed which patients with a second hip fracture could benefit most from an exoskeleton preventing falls and whether its development is feasible. Methods: The life-course of hip fractured patients presenting with dementia or cardiovascular diseases was simulated using a Markov model relying on the United Kingdom administrative data and complemented by published literature. A group of experts provided the exoskeleton parameters. Secondary analyses included a threshold analysis to identify the exoskeleton requirements (e.g. minimum impact of the exoskeleton on patients’ quality of life) leading to a reimbursable incremental cost-effectiveness ratio. Similarly, the uncertainty around these requirements was modelled by varying their standard errors and represented alongside population Expected Value of Perfect Information (EVPI). Results: Our base-case found the exoskeleton cost-effective when providing a statistically significant reduction in SHF risk. The secondary analyses identified 286 cost-effective combinations of the exoskeleton requirements. The uncertainty around these requirements was explored producing further 22,880 scenarios, which showed that this significant reduction in SHF risk was not necessary to support the exoskeleton adoption in clinical practice. Conversely, a significant improvement in women quality of life was crucial to obtain an acceptable population EVPI regardless of the cost of the exoskeleton. Conclusions: Our study identified the exoskeleton requisites to be cost-effective and the value of future research. Decision-makers could use our analyses to assess not only whether the exoskeleton could be cost-effective but also how much further research and development of the exoskeleton is worth to be pursued

Cold Treatment Modulates Changes in Primary Metabolites and Flowering of Cut Flower Tulip Hybrids

Tulip is one of the most important bulbous genera in the world’s floriculture. It is known that cold exposure of bulbs before planting is required to break the bulb dormancy and to promote the plant’s flowering. Preparation procedures performed by breeders differ in the duration and the thermal level, and the choice of the procedure depends on the genotype’s sensitivity to temperature; however, little is known about the metabolic responses underlying the different behaviours of the numerous commercial hybrids. We evaluated the influence of two bulb-preparation procedures, 15–18 weeks at 5 ÷ 9 °C, and 9–14 weeks at 2 ÷ 5 °C, in two hybrids of tulip (Tulipa gesneriana L.), ‘Royal Virgin’ and ‘Ad Rem’, grown hydroponically in a floating system. Tulip plants of the two hybrids responded differently to bulb exposure to low temperatures in terms of early flowering, as this was unaffected by the preparation procedure in ‘Royal Virgin’ (27.1 days from transplanting, on average), while it was earlier after treatment at higher temperatures compared with lower temperatures in ‘Ad Rem’ (24.1 vs. 26.7 days at 5 °C vs. at 9 °C). This different flowering earliness may be related to the diverse metabolic responses enacted by the bulbs for cold acclimation that depended on hybrid x thermal treatment. Plant leaf area and flower stem characteristics were similar in the hybrids and were unaffected by the bulb-preparation procedure