tag:stlr.stanford.edu,2008://1 2008-02-03T05:12:23Z Movable Type 3.34 tag:stlr.stanford.edu,2007://1.21 2008-02-02T00:22:09Z 2008-02-03T05:12:23Z

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...

Henry Lien 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. [NOTE: Footnotes in this abstract were omitted. The full abstract with footnotes can be found in PDF form here]]]> tag:stlr.stanford.edu,2007://1.17 2008-01-28T17:42:00Z 2008-01-29T00:12:32Z

The Fourth Amendment's Seizure clause is mired in the Eighteenth century. Its counterpart, the Search clause, has evolved through a steady progression of Supreme Court cases from Katz to Berger to Kyllo, no longer to be confined to the property-based...

Henry Lien The Fourth Amendment's Seizure clause is mired in the Eighteenth century. Its counterpart, the Search clause, has evolved through a steady progression of Supreme Court cases from Katz to Berger to Kyllo, no longer to be confined to the property-based notions of privacy embodied in Olmstead v. United States. Instead it is sensitive to modern privacy concerns by extending Constitutional protection to situations that satisfy the reasonable expectation of privacy test. While imperfect, the evolved Search clause has kept the protections of the Fourth Amendment relevant in an age of digital evidence, ubiquitous communication networks, and increasingly sophisticated and invasive surveillance capabilities. here]]> tag:stlr.stanford.edu,2007://1.19 2008-01-25T17:45:07Z 2008-01-25T20:30:33Z

The ACLU of Northern California has been a leader in generating public and legislative attention to the privacy, personal safety, and financial security risks associated with the use of Radio Frequency Identification (RFID) technology in government-issued identification documents, such as...

Henry Lien The ACLU of Northern California has been a leader in generating public and legislative attention to the privacy, personal safety, and financial security risks associated with the use of Radio Frequency Identification (RFID) technology in government-issued identification documents, such as drivers' licenses and student ID cards. here]]> tag:stlr.stanford.edu,2007://1.15 2007-06-18T22:06:00Z 2007-06-19T06:07:07Z

Under current Fourth Amendment doctrine, parties to a communication enjoy constitutional protection against government surveillance only when they have a reasonable expectation of privacy in those communications. This paper discusses the insufficiency of the reasonable expectation of privacy test in...

Henry Lien Under current Fourth Amendment doctrine, parties to a communication enjoy constitutional protection against government surveillance only when they have a reasonable expectation of privacy in those communications. This paper discusses the insufficiency of the reasonable expectation of privacy test in the context of modern communications. Significantly, courts have required that communications media be virtually invulnerable before affording them Fourth Amendment protection. here]]> tag:stlr.stanford.edu,2007://1.27 2007-02-27T03:19:43Z 2007-04-05T20:02:39Z

Pharmaceutical sales constitute a $600-billion-per-year global industry. Less well-known is that more than half of the drugs listed in the U.S. Pharmacopoeia contain a class of compounds known as chiral molecules as the active pharmaceutical ingredient. Chiral molecules have special...

Steve Sha Pharmaceutical sales constitute a $600-billion-per-year global industry. Less well-known is that more than half of the drugs listed in the U.S. Pharmacopoeia contain a class of compounds known as chiral molecules as the active pharmaceutical ingredient. Chiral molecules have special chemical and pharmacological properties that raise questions as to their patentability. When chiral molecules are synthesized in the laboratory, two distinct mirror-image molecules are formed called “enantiomers.” Although each enantiomer may have different levels of therapeutic activity and toxicity, technical challenges to separating the enantiomers caused most early chiral drugs to be sold as mixtures of the two molecules, or racemic mixtures. As patents on these racemic mixtures expire and separation techniques improve, drugs formerly sold as racemic mixtures are now being marketed as single-enantiomer versions. For example, Nexium® is the single-enantiomer version of Prilosec,® and Clarinex® is the single-enantiomer version of Claritin®. In fact, all five of the top-selling drugs in the world are single-enantiomer drugs, generating total revenues of $35 billion per year. Switching from a racemic mixture to an enantiomer – called a “racemic switch” in industry parlance – can potentially allow a company to extend product life by securing a patent for an additional twenty years of protection. Whether the disclosure of the racemate in the prior art renders obvious (and thus unpatentable) each individual enantiomer is therefore a timely and important question. This article provides an overview of chiral drugs in the pharmaceutical industry, reviews early case law on the patentability of enantiomers, and addresses the patentability of single-enantiomer drugs in the context of modern chemical obviousness jurisprudence. tag:stlr.stanford.edu,2007://1.25 2007-02-10T19:06:13Z 2007-04-05T20:01:13Z

The radio spectrum is a scarce resource that has been historically allocated through command-and-control regulation. Today, it is widely accepted that this type of allocation is as inefficient for spectrum as it would be for paper or land. Many commentators...

Steve Sha The radio spectrum is a scarce resource that has been historically allocated through command-and-control regulation. Today, it is widely accepted that this type of allocation is as inefficient for spectrum as it would be for paper or land. Many commentators and scholars, most famously Ronald Coase, have advocated that a more efficient allocation would be achieved if government sold the rights to the spectrum and allowed a free market in radio property to develop. A new school of scholars, however, has begun to challenge the spectrum property model. While they agree with Coase that command-and-control spectrum management is highly inefficient, they instead propose to make spectrum a commons. They claim that new spectrum sharing technologies allow a virtually unlimited number of persons to use the same spectrum without causing each other interference and that this eliminates the need for either property rights in, or government control of, spectrum. This Article aims to show that, despite the rhetoric, the commons model that has been proposed in the legal literature is not an alternative to command-and-control regulation, but in fact shares many of the same inefficiencies of that system. In order for a commons to be viable, someone must control the resource and set orderly sharing rules to govern its use. If the government is the controller of a commons—as proponents of a spectrum commons suggest it should be—then in allocating and managing the commons the government will very likely employ its existing inefficient processes. Recently the FCC designated a 50 MHz block of spectrum in the 3650 MHz band as a commons. This Article looks at that proceeding and finds that in creating a commons, the government has not escaped the inefficiencies of command-and-control regulation. tag:stlr.stanford.edu,2007://1.23 2007-01-23T23:20:38Z 2007-01-23T23:25:51Z

The principles behind the Fourth Amendment's Search and Seizure clause are found throughout Anglo-American jurisprudence. This body of law reflects a history of attempting to harmonize the seemingly conflicting governmental goals of communication privacy on the one hand, and protecting...

Henry Lien The principles behind the Fourth Amendment's Search and Seizure clause are found throughout Anglo-American jurisprudence. This body of law reflects a history of attempting to harmonize the seemingly conflicting governmental goals of communication privacy on the one hand, and protecting the public safety and national security on the other. Nations adopt surveillance doctrines, driven largely by the realities of the technology. As technologies change, assumptions behind doctrines can become outdated. Digitalization of voice and data communications is a watershed moment in technological change that requires a refinement and better definition of core concepts behind surveillance law. A doctrine common in the laws of the United States, United Kingdom, Ireland, Australia and New Zealand, for example, is that copying communications stored in a location at a moment in time is generally viewed less intrusive on the privacy of the target than is the ongoing “interception” of communications over time that transit that location. Accordingly, these nations have adopted legal constructs that differentiate based on the means of communications collection. Under these laws, government agencies generally place greater limits on surveillance that constitutes interception of communications than “mere” collection of stored communications. The digitalization of communications, however, necessarily means that all such communications are in some sense in a “stored” state at various and numerous points along the communications path. Voice and electronic communications alike now travel across digital networks, at times resting, if only for a nanosecond, in static memory. This technological change, often referred to as store-and-forward, has profound implications for search and seizure law. If the degree of legal protection of a communication rests solely on whether it was collected while in a stored state, then the law can be easily (and even inadvertently) gamed simply by choice of surveillance technology. An eavesdropper can avoid the more onerous requirement and limits of intercept law by placing a data-capture device at a point in the transmission path where communications come to rest momentarily before continuing to the destination. The device, laying in wait to grab communications during those fleeting moments of storage, will achieve the same end as would a similar device that captures data in motion, but without the need to honor the legal protections regulating an interception. Behind the stored-versus-intercept doctrine is the recognition that constant, ongoing and inevitable surveillance of a space more profoundly intrudes upon privacy than searching that same space at a discrete moment in time for evidence that happens to be there at the moment of the search. Defining the precise contours of when the acquisition of a communication is deemed an intercept and when it is not should not turn on its storage state or its location. Rather, the focus should more closely reflect the rationale that there is a greater privacy invasion when one sits in the transmission path, monitoring all that passes in an ongoing surveillance effort. In this model, there is an intercept when communications are collected by a device monitoring, in an ongoing, prospective manner, communications that flow into the space. On the other hand, historical collection, collecting only the data that reside in the space at the precise moment of the search does not constitute an interception. As the courts and legislatures in the Anglo-American countries adjust to this profound technological change, there may be a temptation to move to another rule. For example, one could define an intercept to mean the acquisition of a communication anytime before it reaches the location from which it can be collected by the intended recipient, regardless of the means by which the communication is collected. The rule could be that there is an interception of email, for instance, if the email is copied anytime before it reaches the inbox. This, however, misdirects attention to the space from which the data were acquired and diverts the focus from whether intrusive means were used to collect the data. Under that rule, if one deployed a device that constantly monitored an inbox and copied any new incoming messages, there would be no intercept merely because the data were in a particular space. Looking to the ongoing, forward-looking nature of the acquisition provides a more rational and crafted test suited to better protect the underlying privacy interest. [The statements expressed herein should not be taken as a position or endorsement of Yahoo! Inc. or its subsidiaries and may not reflect the opinion of their affiliates, joint ventures or partners.] tag:www.stanford.edu,2006:/group/stlr/blog//1.6 2006-11-06T20:40:47Z 2006-12-06T22:43:59Z

It is largely uncontroversial that the "creative" effort in a database will be protected by copyright. However, any effort to extend protection to purely factual databases creates difficulties in determining the proper method and scope of protection. This Paper argues...

Henry Lien It is largely uncontroversial that the "creative" effort in a database will be protected by copyright. However, any effort to extend protection to purely factual databases creates difficulties in determining the proper method and scope of protection. This Paper argues that antitrust law can be used to supplement intellectual property law in maintaining the "access-incentive" balance with respect to databases. It starts from the premise that a trend toward "TRIPs-plus" rights in databases, whatever its form, is inevitable. The reason is a simple, but compelling one: business needs shape the law. Various means of database access regulation are explored and contrasted with antitrust law. This Paper concludes that antitrust offers an alternative that more accurately reflects commercial expectations. However, regulators need to be aware of the limitations of applying antitrust law to a regime delicately tuned with pre-existing endogenous checks as well as the effects of their application on innovation by those spurred on the assurance of monopoly profits. In this regard, antitrust law must prove itself to be capable of sophisticated regulation if its interference in the database industry is to be justified. Regulating Access to Databases Through Antitrust Law: A Missing Perspective in the Database Debate, by Daryl Lim Tze Wei. ]]> tag:www.stanford.edu,2006:/group/stlr/blog//1.7 2006-10-06T20:42:22Z 2006-12-09T01:54:03Z

In today's Internet economy, search engines play an increasingly important role in helping consumers locate goods and services. However, search engines may also allow unauthorized online retailers to misuse trademarks as keywords and metatags in ways that can boost their...

Henry Lien In today's Internet economy, search engines play an increasingly important role in helping consumers locate goods and services. However, search engines may also allow unauthorized online retailers to misuse trademarks as keywords and metatags in ways that can boost their placement in search engine results and increase online sales. For instance, a person other than a trademark holder may purchase a trademarked word or phrase as a search engine keyword (keyword misuse), or may insert them as hidden HTML code on webpages (metatag misuse). Where a website that misuses trademarks in this manner then offers the trademarked goods or services for sale online without a license from the original producer, consumers may be deceived as to the source of those goods and services, and the value of the trademark might be diminished. The Search Engine Economy's Achilles Heel? Addressing Online Parallel Imports Resulting from Keyword and Metatag Misuse, by Manavinder S. Bains. ]]> tag:www.stanford.edu,2006:/group/stlr/blog//1.2 2006-07-06T19:07:10Z 2007-10-27T07:33:14Z

This Note presents an empirical study of district court opinions that reached the question of obviousness--one of the core requirements for patent validity--n patent suits. The doctrine of obviousness has befuddled courts and litigants since the Supreme Court's 1851 statement...

Henry Lien This Note presents an empirical study of district court opinions that reached the question of obviousness--one of the core requirements for patent validity--n patent suits. The doctrine of obviousness has befuddled courts and litigants since the Supreme Court's 1851 statement that patentable invention requires some nebulous level of ingenuity and skill. By the 1970s, frustration with the obviousness doctrine had reached fever pitch, and Congress responded by centralizing patent appeals in the United States Court of Appeals for the Federal Circuit. Empirical analyses of obviousness and other patent validity doctrines in the federal court system have generally found that patents are invalidated less often since the Federal Circuit's inception in 1982. These findings have led some scholars to conclude that the Federal Circuit has exerted a strong pro-patent bias in the federal court system and effectively lowered the hurdles of patentability. However, previous studies of obviousness have largely failed to directly compare cases from the pre- and post-Federal Circuit time periods or to consider district courts' use of the obviousness doctrine. This Note attempts to fill this void in the study of obviousness by comparing all published district court opinions reaching the question of obviousness for two time periods: 1970 through 1975, and 1995 through 2000. This study finds that, consistent with the notion of a pro-patent bias under the Federal Circuit's reign, district courts invalidated patents as obvious far less frequently in the 1990s than in the 1970s. However, this Note proposes that the explanation for this decreasing rate of obviousness is less clear than simply a pro-patent bias in the Federal Circuit. tag:www.stanford.edu,2006:/group/stlr/blog//1.1 2006-07-01T18:30:27Z 2006-12-06T23:09:55Z

Morality, an individual's subjective sense of right and wrong, is the biggest influence in shaping law-related behavior. And not surprisingly, both psychologists and legal theorists have begun to explore the links between personal morality and large-scale copyright infringement. But to...

Henry Lien Morality, an individual's subjective sense of right and wrong, is the biggest influence in shaping law-related behavior. And not surprisingly, both psychologists and legal theorists have begun to explore the links between personal morality and large-scale copyright infringement. But to date, this analysis has not rigorously answered some basic questions. Why do people believe that theft is immoral? And why do so many differentiate theft from infringement? The Immorality of Theft, the Amorality of Infringement, a Note by Mohsen Manesh. ]]> tag:www.stanford.edu,2006:/group/stlr/blog//1.3 2006-06-06T00:00:00Z 2006-12-06T23:15:55Z

One year ago, on June 27, 2005, the Supreme Court released its much-anticipated ruling in Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd . The unanimous decision held that Grokster and StreamCast, the distributors of popular peer-to-peer "file sharing" software, could be...

Henry Lien Interpreting Grokster: Limits on the Scope of Secondary Liability for Copyright Infringement, a perspective by the Center for Democracy and Technology (CDT).]]> tag:www.stanford.edu,2006:/group/stlr/blog//1.4 2006-04-06T17:43:20Z 2006-12-06T23:23:52Z

This paper examines six decisions in which district courts have held patent claims invalid based on PTO-considered art. Part II describes the origin and limitations of the methodology used to select and analyze particular cases. Part III summarizes the pertinent...

Henry Lien Deference Overcome: Courts' Invalidation of Patent Claims as Anticipated by Art Considered by the PTO by J. Michael Buchanan. ]]> tag:www.stanford.edu,2006:/group/stlr/blog//1.5 2006-02-06T17:45:05Z 2007-08-20T09:32:55Z

This paper begins with an overview of Amazon's prior experiments with e-books, the way in which the Search Inside the Book database is created, and how that database manifests itself to the Amazon user. Part II analyzes the Search...

Henry Lien No Analog Analogue: Searchable Digital Archives and Amazon's Unprecedented Search Inside the Book Program as Fair Use by Jonathan Kerry-Tyerman. ]]> tag:www.stanford.edu,2005:/group/stlr/blog//1.8 2005-09-20T20:44:15Z 2006-12-08T06:47:13Z

This article argues that corporate law firms do not appreciate the changing world of legal recruiting. The rise of information technology means that law students function as sophisticated consumers of information on law firm life. Given that monetary compensation at...

Henry Lien This article argues that corporate law firms do not appreciate the changing world of legal recruiting. The rise of information technology means that law students function as sophisticated consumers of information on law firm life. Given that monetary compensation at major corporate firms is almost identical, students' perception of lifestyle can have a major influence on their valuation of firms. Consequently, firms need to adapt by more carefully managing the type of information that might be accessible to students, and their general reputation within the student community. Managing Risk to Reputation: The Challenge of the Internet for Legal Recruiting by T. Colpan and L.R. Skibell. ]]>