Nearly half of litigated patents are invalidated. To address this issue and reduce the number of “bad patents,” commentators and industry members have called for reforms to increase certainty in the patent system. Many have also proposed reforms that meet the varied needs of different industries. This paper responds to these prior proposals and proposes reforms that harness information known to patentees. These reforms are designed to meet industry-specific needs, as exemplified by the pharmaceutical and computer industries. Continued…

It has become increasingly common for brain images to be proffered as evidence in civil and criminal litigation. This Article offers some general guidelines to legal thinkers about how to understand brain imaging studies—or at least avoid misunderstanding them. And it annotates a published brain imaging study by several of the present authors (and others) in order to illustrate and explain, with step-by-step commentary.

Last fall, I presented a paper at a conference on neuroimaging and the law looking at the way jurors were likely to construe neuroimaging evidence in insanity defense cases. I tried to balance jurors’ likely positive response to the perceived characteristics of this evidence—vivid, objective, quantifiable, advanced—with their likely negative response to the use of this evidence in such cases (reflecting their prejudice, hostility, and hatred toward insanity pleaders)—and concluded that I was “not at all sure that the pizzazz of neuroimaging testimony—not withstanding its colorfulness and its propensity to reductionism—will trump these deep-seated attitudes.” In short, I sought to make the point that the science of neuroscience has to be assessed in the sociopolitical context of the specific question of law that is central to the specific case before the court. Continued…

In exchange for granting inventors a limited monopoly, the patent laws require inventors to “enable” the public to make and use their invention. In Liebel-Flarsheim Co. v. Medrad, Inc., Automotive Technologies International, Inc. v. BMW of North America, Inc., and Sitrick v. Dreamworks, L.L.C., the Federal Circuit made it far easier to show that patents are invalid based on lack of enablement in the predictable arts. These decisions rely on the enablement doctrine to invalidate claims that appear to be far broader in scope than what the written description of the patents suggests. Continued…

Copyright is a system of federal regulation that empowers private actors to silence others, yet no one seriously doubts that copyright is consistent in principle with the First Amendment freedom of speech. Scholars and courts have tried to resolve the tension between exclusive rights in expression and free speech in one of two ways: some appeal to copyright’s built-in accommodations to suppress any independent First Amendment analysis, while others apply standard First Amendment tests to evaluate whether and where copyright becomes an unconstitutional burden on speech. Neither of these approaches properly appreciates the constitutional balance struck at the Framing between the Copyright Clause and the First Amendment. This Article develops a free speech theory of copyright informed by this balance. I advocate thinking of the Copyright Clause’s limits as free speech limits, giving them the force of an individual right. Continued…

Law has had a long and troubled relationship with science. The misuse of science within the legal realm, as well as our failed attempts to make law more scientific, are well documented. The cause of these problems, however, is less clear. Continued…

In the wake of the California energy crisis of 2000-2001, the California Energy Commission (CEC) and California Public Utilities Commission (CPUC) are aggressively pursuing “demand response” (DR) energy programs aimed at reducing peak energy demand. Demand response systems convey information about market conditions through pricing or reliability signals to customers, who in turn, hopefully, alter their electricity consumption choices. In particular DR programs are aimed at shifting the time at which customers use energy through the implementation of time-varying tariffs. Armed with information about the time-varying cost of electricity residential and commercial customers are expected to reduce energy usage and/or shift their usage to non-peak, less costly, hours. Such shifts, even absent reductions in overall consumption, will reduce the likelihood of energy brown and black outs and provide direct savings to consumers. Technologies to enable the demand response system, including advanced metering research and development [OpenAMI] and sensor and control technologies development [DRETD], are under development. These technologies will be coupled with a communication and network infrastructure that supports the multicast of real-time pricing information, and the aggregation of energy usage and billing information. Continued…