Acting Like an Administrative Agency: The Federal Circuit En Banc

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit\u27s practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc and the means by which it hears them goes beyond the limited role of a court – to decide the case before it. Instead of exercising restraint and addressing only what it must, the Federal Circuit raises wide-ranging questions and makes broad pronouncements of law that sets or changes patent policy. This role has traditionally been delegated to administrative agencies that must comply with the Administrative Procedure Act, particularly the notice and comment provisions. Despite being an appellate court and not being subject to the notice and comment requirements, the Federal Circuit seems to comply with these requirements when it orders cases to be heard en banc. And although there are strong objections as to why the en banc Federal Circuit should refrain from acting like an administrative agency by engaging in substantive rulemaking and policy setting, I argue that the Federal Circuit is probably in the best position to do so, although other governmental bodies can or should play a larger role in shaping patent policy

Patent Reform and Best Mode: A Signal to the Patent Office or a Step Toward Elimination?

On September 16, 2011, President Obama signed the America Invents Act (AIA), the first major overhaul of the patent system in nearly sixty years. This article analyzes the recent change to patent law\u27s best mode requirement under the AIA. Before the AIA, patent applicants were required, at the time of submitting their application, to disclose the best mode of carrying out the invention as contemplated by the inventor. A failure to disclose the best mode was a basis for a finding of invalidity of the relevant claims or could render the entire patent unenforceable under the doctrine of inequitable conduct. The AIA still requires patent applicants to disclose the best mode, but has removed the traditional enforcement mechanisms – declarations of invalidity and unenforceability – as defenses to patent infringement. In this article, I propose and explore a couple innovative techniques that could be used to add teeth to the seemingly toothless best mode requirement. Ultimately, I reject these proposals as not being workable solutions and suggest that Congress\u27s resolution of the best mode problem is nonsensical and that it should completely eliminate the requirement rather than sending mixed signals to the Patent Office and patent practitioners

Expanding Preferential Treatment Under the Record Rental Amendment Beyond the Music Industry

In January 2007, the Sixth Circuit Court of Appeals decided Brilliance Audio, Inc. v. Haights Cross Communications, Inc. and answered a lingering question concerning the Copyright Act that had persisted for over twenty years. The court decided whether the protections offered to the music industry under the poorly drafted Record Rental Amendment of 1984 also extended to audiobooks and other non-musical works. This Act deprives owners of items such as tapes and compact discs from renting those items to others without the consent of the copyright owners of the recorded song and the written lyrics and music - a right historically granted to consumers under the first sale doctrine. Ultimately, the court held that the special protections granted by the Record Rental Amendment were limited to the music industry. However, both the majority and vigorous dissenting opinions highlighted the differing interpretations of the Act\u27s applicability and set the stage for a circuit split. This article first explores the text and historical developments of copyright law\u27s first sale doctrine and the Record Rental Amendment and the Sixth Circuit\u27s interpretation thereof. Next, it examines whether the Record Rental Amendment should be amended to include audiobooks and other non-musical works and ultimately suggests two alternative amendments Congress should adopt to resolve future conflicts and avoid a split amongst the circuits

Work Made for Hire – Analyzing the Multifactor Balancing Test

Authorship, and hence, initial ownership of copyrighted works is oftentimes controlled by the 1976 Copyright Act’s work made for hire doctrine. This doctrine states that works created by employees within the scope of their employment result in the employer owning the copyright. One key determination in this analysis is whether the hired party is an employee or independent contractor. In 1989, the U.S. Supreme Court, in CCNV v. Reid, answered the question of how employees are distinguished from independent contractors by setting forth a list of factors courts should consider. Unfortunately, the Supreme Court did not give further guidance on how to balance these factors. Three years later, in 1992, the Court of Appeals for the Second Circuit decided Aymes v. Bonelli and noted that not all factors are equally weighted and that five of the factors would “be significant in virtually every situation.” This analysis was supported by looking at all the work made for hire cases decided in the three year period since Reid – six cases in total. This Article expands in both scope and time what the Second Circuit did in Aymes and systematically analyzes how courts have utilized the factors in the twenty-five years since Reid. In particular, this study has identified the universe of cases where the courts have decided whether a hired party was an employee or independent contractor and uses the data from these cases to describe what factors appear to be the most and least important in reaching these conclusions. Based on the results of this study, this Article proposes a continuum of importance, which graphically illustrates the relative importance of each factor

Tanker orbit transfer vehicle and method

A method and apparatus for transportation between orbits are presented. A tanker orbit transfer vehicle includes two stages each of which includes a fuel container. The first stage may be left in an intermediate parking orbit while the second stage goes on to carry out a mission, thereafter to return to rendezvous and dock with the first stage. Fuel carried by the first stage may be utilized for travel of the two stages between the starting orbit and the parking orbit, and for return to the starting orbit. An aerobrake may be included in the system for use in the return to the initial orbit

Who Knew? Admissibility of Subsequent Remedial Measures when Defendants are Without Knowledge of the Injuries

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down, in application and purpose, when a defendant undertakes the new safety measure after the plaintiff\u27s injury, but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety for a variety of reasons. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime example of cases where defendants are likely to have made significant product or warning improvements which, if taken before the plaintiff\u27s exposure, may have prevented the injury. Should evidence of these improvements be admissible? The literal text of Rule 407 suggests not. Yet allowing such measures into evidence may not have the same chilling effect as when the measure was taken in response to the plaintiff\u27s injury. In such circumstances, it can be argued the defendant never feared the measure would be used against it. Since the policies behind Rule 407 may not support the exclusion of such evidence, should it still be applied? This article explores Rule 407, its policy underpinnings, courts\u27 differing interpretations of the rule, and how it should be applied to defendants who take subsequent remedial measures without knowledge of a plaintiff\u27s injury. Finally, we suggest an interpretation of and amendment to Rule 407 that clarifies the rule and furthers its policy bases