Confidentiality in Patent Dispute Resolution: Antitrust implications

nformation is crucial to the functioning of the patent system, as it is for other markets. Nevertheless, patent licensing terms are often subject to confidentiality agreements. On the one hand, this is not surprising: sellers and buyers do not normally publicize the details of their transactions. On the other hand, explicit confidentiality agreements are not common in other markets, and they may be particularly problematic for patents. Several United States Supreme Court cases have condemned agreements that suppress market information, and those cases could be applied to confidentiality agreements in the patent context. Of course, confidentiality may sometimes be pro-competitive, particularly when it involves only private negotiations. In other contexts, however, and notably in arbitration, which is a substitute for open court proceedings, the competitive balance is more problematic. Indeed, U.S. patent law mandates that patent arbitration awards be made public through the Patent and Trademark Office, though this requirement is generally ignored. Information about licensing terms is particularly important in one of today’s most important patent licensing contexts. The standard-setting organizations that define the technologies used in products like smartphones typically require their members to commit to license patented technologies that are adopted in standards on fair, reasonable, and non- discriminatory (FRAND) terms. The non-discriminatory element of this commitment is difficult for potential licensees to enforce without information about the licensing terms to which other licensees have agreed. This Article describes the value of patent licensing information and discusses the antitrust implications of agreements to keep that information confidential, particularly in the FRAND context and in arbitration. The Article also offers several ways in which parties, standard- setting organizations, and arbitration bodies could seek to avoid the anticompetitive effects of confidentiality

Quantification of drag and lift imposed by pop-up satellite archival tags and estimation of the metabolic cost to cownose rays (Rhinoptera bonasus)

The recent development of the pop-up satellite archival tag (PSAT) has allowed the collection of information on a tagged animal, such as geolocation, pressure (depth), and ambient water temperature. The success of early studies, where PSATs were used on pelagic fishes, has spurred increasing interest in the use of these tags on a large variety of species and age groups. However, some species and age groups may not be suitable candidates for carrying a PSAT because of the relatively large size of the tag and the consequent energy cost to the study animal. We examined potential energetic costs to carrying a tag for the cownose ray (Rhinoptera bonasus). Two forces act on an animal tagged with a PSAT: lift from the PSATs buoyancy and drag as the tag is moved through the water column. In a freshwater flume, a spring scale measured the total force exerted by a PSAT at flume velocities from 0.00 to 0.60 m/s. By measuring the angle of deflection of the PSAT at each velocity, we separated total force into its constituent forces — lift and drag. The power required to carry a PSAT horizontally through the water was then calculated from the drag force and velocity. Using published metabolic rates, we calculated the power for a ray of a given size to swim at a specified velocity (i.e., its swimming power). For each velocity, the power required to carry a PSAT was compared to the swimming power expressed as a percentage, %TAX (Tag Altered eXertion). A %TAX greater than 5% was felt to be energetically significant. Our analysis indicated that a ray larger than 14.8 kg can carry a PSAT without exceeding this criterion. This method of estimating swimming power can be applied to other species and would allow a researcher to decide the suitability of a given study animal for tagging with a PSAT