A Serendipitous Experiment in Percolation of Intellectual Property Doctrine

This Article fills a gap in the literature by providing novel and unique empirical evidence of the impact of percolated intellectual property doctrine versus the impact of isolated doctrine from a specialized court. It relies on the U.S. Supreme Court’s paired decisions in 2014 in Octane Fitness, LLC v. ICON Health & Fitness, Inc.15 and Highmark, Inc. v. Allcare Health Management Systems, Inc.16 to highlight a natural forum for evaluating the effects of percolation on federal legal doctrine. At issue in those cases was the fee-shifting language of Section 285 of the Patent Act: “The court in exceptional cases may award reasonable attorney fees to the prevailing party.”17 Fortuitously, Section 1117(a) of the Lanham Act, enacted twenty-two years after Section 285, contains the identical provision for the trademark and specific types of unfair competition cases that arise under it.18 Moreover, while patent appeals are now heard exclusively by the Federal Circuit, appeals from Lanham Act cases go to the regional circuits.19 The treatment of Lanham Act fee shifting in comparison to Patent Act fee shifting is thus a serendipitous natural experiment that allows a comparison of two forms of doctrinal development. Using this experimental lens, we engage in a detailed analysis of fee-shifting cases and compare the results under percolation and specialization. Based on the literature, our hypothesis is that percolation is likely to produce doctrine that, while nonuniform, actually adheres more closely to statutory intent. We expect that the percolation blunts the type of judicial hyperactivity20 and activism that mars the decision-making of a specialized court like the Federal Circuit. And indeed, our results bear this out. They demonstrate, for the first time, that lack of percolation led to weaker doctrine in the Federal Circuit than in the regional circuits, despite identical statutory language. Part I of this Article puts the experiment in context by explaining the role of generalist versus specialized courts in developing legal doctrine and the clear tradeoff between uniformity of doctrine and the advantages of percolation. It provides the theoretical construct that is so in need of empirical validation. Part II begins the empirical study by considering over six decades of Patent Act fee-shifting case law, beginning with the first enactment of a statutory provision in 1946. It describes how, when patent fee-shifting doctrine percolated through the regional circuits from 1946 to 1982, it was relatively stable, and outcomes were noncontroversial and largely congruent with the Supreme Court’s rulings in Octane Fitness and Highmark half a century later. However, with the 1982 introduction of the Federal Circuit as the sole voice in intermediate patent appeals, percolation ceased. Patent fee-shifting doctrine started to harden along rigid and inappropriate lines, eventually taking on the formalistic, inflexible format that was ultimately struck down by the Court in 2014. In Part III, the paper presents the contrasting case of Lanham Act fee-shifting case law. The Lanham Act fee-shifting provision was adopted in 1974 and has always percolated through the regional circuit courts. Doctrine developed under the Lanham Act provision is less uniform than that found in patent law, as one would expect from percolating doctrine. However, we demonstrate that the Lanham Act fee-shifting doctrine was more consistent with the Supreme Court’s eventual edicts in Octane Fitness and Highmark than was the nonpercolating doctrine of the specialized Federal Circuit. Part IV concludes that percolation does indeed have clear advantages; it is more likely to result in doctrine that preserves the function of the trial court and avoids inappropriate policy making, although at the cost of uniformity in doctrine. Trade-offs indeed must be made when choosing court structures. We discuss our findings and suggest lessons to be learned that may lead to improvements and more informed analysis of the Federal Circuit

CubeSat Laser Infrared CrosslinK

The CubeSat Laser Infrared CrosslinK (CLICK) mission will demonstrate technology to advance the state of the art in intersatellite communications for small spacecraft. The primary objective of the mission is an on-orbit demonstration of full-duplex (send and receive) laser, also called optical communication, crosslink between two six-unit(6U) small satellites that range in distance between 15 and 360 miles (25 - 580 kilometers) apart at data rates greater than 20 megabits per second (Mbps). The mission will also demonstrate precision satellite-to-satellite clock synchronization and ranging at the 10 cm level. Miniaturized optical transceivers capable of both transmitting and receiving laser communications will form a communication crosslink between the two satellites with their alignment supported with a new fine pointing capability. The miniature optical transceivers are an improvement over radio frequency (RF) technology due to the power efficiency of lasercom high data rate transmission, which lessens the impact on the small platform's already severe constraints on size, weight and power

Combining laser frequency combs and iodine cell calibration techniques for Doppler detection of exoplanets

Exoplanets can be detected from a time series of stellar spectra by looking for small, periodic shifts in the absorption features that are consistent with Doppler shifts caused by the presence of an exoplanet, or multiple exoplanets, in the system. While hundreds of large exoplanets have already been discovered with the Doppler technique (also called radial velocity), our goal is to improve the measurement precision so that many Earth-like planets can be detected. The smaller mass and longer period of true Earth analogues require the ability to detect a reflex velocity of ~10 cm/s over long time periods. Currently, typical astronomical spectrographs calibrate using either Iodine absorptive cells or Thorium Argon lamps and achieve ~10 m/s precision, with the most stable spectrographs pushing down to ~2 m/s. High velocity precision is currently achieved at HARPS by controlling the thermal and pressure environment of the spectrograph. These environmental controls increase the cost of the spectrograph, and it is not feasible to simply retrofit existing spectrometers. We propose a fiber-fed high precision spectrograph design that combines the existing ~5000-6000 A Iodine calibration system with a high-precision Laser Frequency Comb (LFC) system from ~6000-7000 A that just meets the redward side of the Iodine lines. The scientific motivation for such a system includes: a 1000 A span in the red is currently achievable with LFC systems, combining the two calibration methods increases the wavelength range by a factor of two, and moving redward decreases the 'noise' from starspots. The proposed LFC system design employs a fiber laser, tunable serial Fabry-Perot cavity filters to match the resolution of the LFC system to that of standard astronomical spectrographs, and terminal ultrasonic vibration of the multimode fiber for a stable point spread function

Thermal Emission and Albedo Spectra of Super Earths with Flat Transmission Spectra

Planets larger than Earth and smaller than Neptune are some of the most numerous in the galaxy, but observational efforts to understand this population have proved challenging because optically thick clouds or hazes at high altitudes obscure molecular features (Kreidberg et al. 2014b). We present models of super Earths that include thick clouds and hazes and predict their transmission, thermal emission, and reflected light spectra. Very thick, lofted clouds of salts or sulfides in high metallicity (1000x solar) atmospheres create featureless transmission spectra in the near-infrared. Photochemical hazes with a range of particle sizes also create featureless transmission spectra at lower metallicities. Cloudy thermal emission spectra have muted features more like blackbodies, and hazy thermal emission spectra have emission features caused by an inversion layer at altitudes where the haze forms. Close analysis of reflected light from warm (~400-800 K) planets can distinguish cloudy spectra, which have moderate albedos (0.05-0.20), from hazy models, which are very dark (0.0-0.03). Reflected light spectra of cold planets (~200 K) accessible to a space-based visible light coronagraph will have high albedos and large molecular features that will allow them to be more easily characterized than the warmer transiting planets. We suggest a number of complementary observations to characterize this population of planets, including transmission spectra of hot (>1000 K) targets, thermal emission spectra of warm targets using the James Webb Space Telescope (JWST), high spectral resolution (R~10^5) observations of cloudy targets, and reflected light spectral observations of directly-imaged cold targets. Despite the dearth of features observed in super Earth transmission spectra to date, different observations will provide rich diagnostics of their atmospheres.Comment: 23 pages, 23 figures. Revised for publication in The Astrophysical Journa

CubeSat Laser Infrared CrosslinK

The CubeSat Laser Infrared CrosslinK (CLICK) mission will demonstrate technology to advance the state of the art in communications between small spacecraft as well as the capability to gauge their relative distance and location. CLICK is comprised of two sequential missions. The first mission, CLICK A, is a risk reduction mission that will test out elements of the optical (laser) communications with a single 3-unit (3U) spacecraft. The key objective of this risk reduction testing is to demonstrate the fine steering mirror control system's high precision pointing performance which enables the use of a lower power laser in CLICK B/C. The goal of CLICK B/C, the second mission, is to demonstrate full-duplex (send and receive) optical communication crosslink between two 3U small spacecraft, in low-Earth-orbit, at distances between 15 and 360 miles (25 - 580 kilometres) apart at data rates greater than 20 Mbps

Fractional processes: from Poisson to branching one

Fractional generalizations of the Poisson process and branching Furry process are considered. The link between characteristics of the processes, fractional differential equations and Levy stable densities are discussed and used for construction of the Monte Carlo algorithm for simulation of random waiting times in fractional processes. Numerical calculations are performed and limit distributions of the normalized variable Z=N/ are found for both processes.Comment: 11 pages, 6 figure

Effect of Longitude-Dependent Cloud Coverage on Exoplanet Visible Wavelength Reflected-Light Phase Curves

We use a planetary albedo model to investigate variations in visible wavelength phase curves of exoplanets. Thermal and cloud properties for these exoplanets are derived using one-dimensional radiative-convective and cloud simulations. The presence of clouds on these exoplanets significantly alters their planetary albedo spectra. We confirm that non-uniform cloud coverage on the dayside of tidally locked exoplanets will manifest as changes to the magnitude and shift of the phase curve. In this work, we first investigate a test case of our model using a Jupiter-like planet, at temperatures consistent to 2.0 AU insolation from a solar type star, to consider the effect of H2O clouds. We then extend our application of the model to the exoplanet Kepler-7b and consider the effect of varying cloud species, sedimentation efficiency, particle size, and cloud altitude. We show that, depending on the observational filter, the largest possible shift of the phase curve maximum will be similar to 2 degrees-10 degrees for a Jupiter-like planet, and up to similar to 30 degrees (similar to 0.08 in fractional orbital phase) for hot-Jupiter exoplanets at visible wavelengths as a function of dayside cloud distribution with a uniformly averaged thermal profile. The models presented in this work can be adapted for a variety of planetary cases at visible wavelengths to include variations in planet-star separation, gravity, metallicity, and source-observer geometry. Finally, we tailor our model for comparison with, and confirmation of, the recent optical phase-curve observations of Kepler-7b with the Kepler space telescope. The average planetary albedo can vary between 0.1 and 0.6 for the 1300 cloud scenarios that were compared to the observations. Many of these cases cannot produce a high enough albedo to match the observations. We observe that smaller particle size and increasing cloud altitude have a strong effect on increasing albedo. In particular, we show that a set of models where Kepler-7b has roughly half of its dayside covered in small-particle clouds high in the atmosphere, made of bright minerals like MgSiO3 and Mg2SiO4, provide the best fits to the observed offset and magnitude of the phase-curve, whereas Fe clouds are found to be too dark to fit the observations

Complexity and Idiosyncrasy at the Federal Circuit

As a specialized intermediate appellate court with exclusive jurisdiction over all U.S. patent appeals, the Federal Circuit wields extraordinary power over the development of the language of patent law. Scholars theorize that the Federal Circuit’s isolation causes it to speak to a narrow audience (the specialized patent bar and sophisticated members of the inventive industries). In particular, the court may intentionally or subconsciously employ “jargon” to obscure difficult legal or policy issues. This Article uses recent case examples to illustrate that Federal Circuit patent doctrine does indeed suffer from two forms of obscurity related to vocabulary: complexity and idiosyncrasy. Patent system policy and goals suggest that obscurity is problematic and should be reduced. The optimal forum for concentrating on change is the Federal Circuit, but reducing obscurity while preserving the advantages of a specialized court is an enduring challenge

The Deformable Mirror Demonstration Mission (DeMi) CubeSat: optomechanical design validation and laboratory calibration

Coronagraphs on future space telescopes will require precise wavefront correction to detect Earth-like exoplanets near their host stars. High-actuator count microelectromechanical system (MEMS) deformable mirrors provide wavefront control with low size, weight, and power. The Deformable Mirror Demonstration Mission (DeMi) payload will demonstrate a 140 actuator MEMS deformable mirror (DM) with \SI{5.5}{\micro\meter} maximum stroke. We present the flight optomechanical design, lab tests of the flight wavefront sensor and wavefront reconstructor, and simulations of closed-loop control of wavefront aberrations. We also present the compact flight DM controller, capable of driving up to 192 actuator channels at 0-250V with 14-bit resolution. Two embedded Raspberry Pi 3 compute modules are used for task management and wavefront reconstruction. The spacecraft is a 6U CubeSat (30 cm x 20 cm x 10 cm) and launch is planned for 2019.Comment: 15 pages, 10 figues. Presented at SPIE Astronomical Telescopes + Instrumentation, Austin, Texas, US