4 research outputs found
Highest Form of Flattery - Application of the Fair Use Defense against Copyright Claims for Unauthorized Appropriation of Litigation Documents, The
Part II of the Article examines which types of legal works are entitled to the limited-time monopoly provided by copyright protection. Reviewing both the purpose of the memorandum of law and the complaint, as well as the process of drafting those documents, it becomes clear that not all such documents are the formulaic, fill-in-the-blanks works that some people may imagine. Indeed, many contain some portions which entail both original effort and creative judgment. For those documents in which the idea behind the original, creative expression may be expressed in a myriad of other ways, protection is proper. Portions of many memoranda of law satisfy this creativity requirement; even portions of some complaints will satisfy this requirement
Not All Property is Created Equal: Why Modern Courts Resist Applying the Takings Clause to Patents, and Why They Are Right To Do So
After a century of disregard, the question of whether patents are entitled to protection under the Fifth Amendment\u27s Takings Clause has recently become a topic of scholarly and judicial debate. While one might have expected this issue to have been settled long before, it is only the recent burgeoning of patentholders\u27 regulatory takings claims that has made this question one of pressing interest. Thus far scholarship on the issue has focused on whether or not patents have historically been characterized as property. Meanwhile, last year\u27s rejection by the Federal Circuit of a patentholder\u27s right to assert a Takings Clause claim led to both external criticism as well as a vocal dissent by an esteemed member of that court.
Considering the issue from a new angle, this article demonstrates that determination of patents\u27 status as property is a relevant but incomplete analysis of the constitutional question. That is because the Supreme Court has already concluded that some property interests, particularly federal benefits, are entitled to Due Process Clause protection but are not entitled to Takings Clause protection. Patents are similar federal entitlements, offered only because they serve society, and thus they are not entitled to the full panoply of constitutional protections. Moreover, if patentholders could assert regulatory takings claims, the fear of costly claims could very well deter the government from making worthwhile policy changes. For instance, there is currently significant public concern about the high prices of pharmaceuticals resulting from drug companies\u27 patent privileges. Refusing to grant patentholders the right to a Takings Clause remedy will prevent society from being stuck with earlier suboptimal patent policies. In sum, permitting patents to trigger takings claims is neither compelled by modern Supreme Court precedent nor wise as a policy matter
Privilege-Wise and Patent (and Trade-Secret)-Foolish?: How the Courts\u27 Misapplication of the Military and State Secrets Privilege Violates the Constitution and Endangers National Security
It is every inventor\u27s nightmare: a valuable idea, stolen, with no legal recourse. Yet that is precisely what happened in Lucent v. Crater, where the Federal Circuit permitted the Federal Government to defeat the inventors\u27 claims using the military and state secrets privilege. In light of the recent upsurge in the Government\u27s invocation of this privilege, it is time to scrutinize more carefully courts\u27 highly deferential response to its use. There is little question that the executive branch must be able to invoke the privilege in order to ensure that national security is not imperiled by public disclosure of information. But courts too often acquiesce in the complete suppression of that information. Unfortunately, in the context of claims regarding unauthorized military use of inventions, this extreme reaction has the potential to engender several serious problems.
First, as demonstrated in Crater, under some circumstances the suppression may disregard inventors\u27 constitutional rights. Where the Government has misappropriated a trade secret, the owner has the constitutional right to compensation for that taking. But suppression of the evidence needed to prove the owner\u27s claim removes that constitutionally mandated remedy. Second, and equally problematic, the destruction of inventors\u27 claims (whether patent or trade secret) may have a significant deterrent effect on companies\u27 willingness to pursue inventions sought by the military. This effect is particularly troubling because it will fall disproportionately on smaller businesses, which directly conflicts with the Department of Defense\u27s stated goal of increasing the proportion of defense technology that comes from smaller businesses. Such businesses must rely primarily on legal protection, rather than political or economic clout, to vindicate their intellectual property rights. If application of the privilege strips these inventors of that protection, they may be disinclined to focus on inventions of interest to the military. In essence, the nation\u27s long-term defense strategy is being taken hostage by the Government\u27s short-term litigation strategy.
Given these concerns, as well as courts\u27 essential obligation to hear valid claims, it is incumbent upon courts to consider more carefully whether the circumstances of a particular case require the severe response seen in Crater. In many situations, courts could employ procedural mechanisms that would safeguard sensitive information yet still permit innovators to pursue their claims. Using these approaches, courts could protect sensitive information without forcing inventors to have to pay the price - literally and figuratively - for the Government\u27s use of its privilege and without risking our nation\u27s future security
Expert Panel Recommendations for a Standardized Ambulatory Glucose Profile Report for Connected Insulin Pens
Background:Connected insulin pens capture data on insulin dosing/timing and can integrate with continuous glucose monitoring (CGM) devices with essential insulin and glucose metrics into a single platform. Standardization of connected insulin pen reports is desirable to enhance clinical utility with a single report.Methods:An international expert panel was convened to develop a standardized connected insulin pen report incorporating insulin and glucose metrics into a single, clinically useful report. An extensive literature review and identification of examples of current connected insulin pen reports was performed serving as the basis for creation of a draft of a standardized connected insulin pen report. The expert panel participated in three virtual standardization meetings and online surveys.Results:The AGP Report: Connected Insulin Pen brings all clinically relevant CGM-derived glucose and connected insulin pen metrics into a single simplified two-page report. The first page contains the time in ranges bar, summary of key insulin and glucose metrics, the ambulatory glucose profile (AGP) curve, and detailed basal (long-acting) insulin assessment. The second page contains the bolus (mealtime and correction) insulin assessment periods with information on meal timing, insulin-to-carbohydrate ratio (ICR), average bolus insulin dose and number of days with bolus doses recorded. The report's second page contains daily glucose profiles with an overlay of the timing and amount of basal and bolus insulin administered.Conclusion:The AGP Report: Connected Insulin Pen is a standardized clinically useful report that should be considered by companies developing connected pen technology as part of their system reporting/output.</p