The Continuing Imperative (But Only From a National Perspective) for Federal Environmental Protection

Background: Abuse of patients by health care staff (AHC) is a cause of unnecessary suffering, which is inconsonant with the premise in medicine of not doing harm to the patient. The understanding of AHC in this thesis is considered two-dimensional: as a patient’s subjective experience and as violation of a patient’s dignity. Patients’ experiences of these events are rather well studied and are characterized by feelings of neglect and a loss of their human value. However, little is known about staff’s perspectives on AHC and what they can do to counteract it. Aim: The overall aim of this thesis is to approach AHC from the perspective of health care staff in order to develop and test a model for enabling health care staff to recognize and take action in situations where AHC is about to happen and to handle it professionally once it has happened. Methods: To explore professionals’ formal perspectives on AHC, five sets of ethical guidelines for staff working within gynecology and obstetrics were examined in study I, using an analytical framework based on empirical studies regarding issues related to AHC. Data for studies II and III were collected at a women’s clinic that had chosen to host an intervention model based on Forum Play (FP) as a method for counteracting AHC. In FP, an improvisational theater method, based on Boal’s Forum Theater, staff together stage problematic situations from their own experience and test different ways of acting. In study II, qualitative interviews with 21 staff members from the target clinic were conducted, to capture the staff’s perception of AHC before the intervention. Study III evaluated the impact of 16 FP workshops by means of questionnaires focusing on the occurrences of AHC and the perceived effects of FP, sent to all staff (n=137) before, during, and after the intervention. In study IV, ten participants of an FP course, consisting of a mixed group of employees working within health care, were interviewed about their experiences of the FP course. Results: In study I, it was shown that all guidelines failed to address issues related to AHC, mainly structural issues such as power imbalances between professionals. In study II, the staff’s described perception of AHC was best categorized as ethical lapses, integrating theoretical descriptions of AHC with a defensive staff-centered position that rejected responsibility for AHC. In study III, no indication of an increased awareness of AHC was found, but an increase in the staff’s ability to act in situations with a moral dilemma was confirmed, even one year after the intervention. The findings of study IV suggest that FP has the potential to develop a response ability, enabling staff to become active in AHC situations. The power to intervene when witnessing AHC was emphasized. Conclusions: Assuming that clinical practice is a moral activity with the good of the patient as its end, it is important for staff to be able to understand AHC from the patient’s perspective. To accomplish this, even structural aspects such as power imbalances between professionals have to be considered. By failing to address these important aspects, ethical guidelines appear to be a limited resource for helping to counteract AHC. FP enables staff participants to adopt a patient’s perspective and to develop an understanding of their power and responsibility to act when in a situation involving AHC. Furthermore FP seems to provide a useful tool for staff learning to display and overcome structural obstacles in order to intervene when witnessing AHC. If counteracting AHC is understood as a matter of acting professionally, practical training such as FP needs to be prioritized

Correcting Misunderstandings of Literal Infringement Scope Regarding After-Arising Technologies Protected by the Doctrine of Equivalents

Based on conflicting Federal Circuit case law, many academics have written, and many practitioners likely believe, that claim meanings or their applications may expand over time for purposes of literal infringement. But this common wisdom is wrong. Under existing Federal Circuit rules, the first precedent controls in the event of a conflict over doctrine, unless and until reversed en banc. The first precedent on the issue, the 2000 Schering Corp. v. Amgen, Inc. case, held that claim scope does not reach after-arising technologies for literal infringement and suggested that if it did, then such claims would lack written description support. Under existing validity precedents, temporally expanding claim scope would violate both § 112(a)’s enablement and written description requirements, as explicitly held in the 1977 In re Hogan decision and as implied by the more recent 2010 Ariad Pharmaceuticals v. Eli Lilly & Co. en banc decision. Further, were claims able to expand over time for literal infringement, they would violate the axiomatic equivalency of claim scope for validity and infringement. Once it is recognized that claim scope for literal infringement does not protect against after-arising technologies, further resort will be made to seek such protection under the doctrine of equivalents. This not only highlights the importance of the Ariad Pharmaceuticals decision but also will cause a big change to current practices and will lead to increased uncertainty regarding the scope of patent protection. This Article explains why academics and practitioners may be confused regarding the U.S. law of literal infringement’s temporal scope. It describes the conflicting cases that have led to that confusion. And it explains why § 112(f)’s rule of construction for functional claiming language may be understood to limit all claim scope to temporally fixed, known-to-be equivalent technologies. This Article concludes by noting potential conflict with the pioneering invention doctrine and concerns should the law be changed to permit claiming the futur

Analysis of Options for Implementing Disclosure of Origin Requirements in Intellectual Property Applications

In 2002, the Conference of the Parties (COP) of the Convention on Biological Diversity (CBD) at its Sixth Meeting adopted the Bonn Guidelines to address access to genetic resources and fair and equitable benefit-sharing arising from use of those resources. In the Bonn Guidelines, the CBD COP invited Parties and governments to encourage disclosure of the country of origin of genetic resources and of associated traditional knowledge in applications for intellectual property where the subject matter of the application concerns or makes use of such knowledge in its development. Since 2002, various proposals to facilitate or to mandate such “disclosure of origin” requirements within the world intellectual property law system have been submitted by countries to intergovernmental organizations, notably the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO). In 2004, at its Seventh Meeting, the CBD COP, in Decision VII/19, invited WIPO and the United Nations Conference on Trade and Development (UNCTAD) to analyse issues relating to implementation of disclosure of origin requirements in the intellectual property law system. This analysis was commissioned by the UNCTAD secretariat as a contribution to its response to the CBD COP’s invitation. However, the views in this document do not necessarily reflect the views of UNCTAD or the authors’ institutions. The analysis is intended to make a thorough, practical, and substantive contribution to discussions on the topics identified above. It builds upon prior analyses of these issues by the authors, by WIPO, by various countries, and in a growing body of literature

Analysis of Options for Implementing Disclosure of Origin Requirements in Intellectual Property Applications

In 2002, the Conference of the Parties (COP) of the Convention on Biological Diversity (CBD) at its Sixth Meeting adopted the Bonn Guidelines to address access to genetic resources and fair and equitable benefit-sharing arising from use of those resources. In the Bonn Guidelines, the CBD COP invited Parties and governments to encourage disclosure of the country of origin of genetic resources and of associated traditional knowledge in applications for intellectual property where the subject matter of the application concerns or makes use of such knowledge in its development. Since 2002, various proposals to facilitate or to mandate such “disclosure of origin” requirements within the world intellectual property law system have been submitted by countries to intergovernmental organizations, notably the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO). In 2004, at its Seventh Meeting, the CBD COP, in Decision VII/19, invited WIPO and the United Nations Conference on Trade and Development (UNCTAD) to analyse issues relating to implementation of disclosure of origin requirements in the intellectual property law system. This analysis was commissioned by the UNCTAD secretariat as a contribution to its response to the CBD COP’s invitation. However, the views in this document do not necessarily reflect the views of UNCTAD or the authors’ institutions. The analysis is intended to make a thorough, practical, and substantive contribution to discussions on the topics identified above. It builds upon prior analyses of these issues by the authors, by WIPO, by various countries, and in a growing body of literature

2013 National Lawyers Convention: Intellectual Property: Intellectual Property, Free Markets, and Competition Policy

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