tag:stlr.stanford.edu,2009://1 2009-04-09T17:31:49Z Movable Type 3.34 tag:stlr.stanford.edu,2009://1.117 2009-04-09T17:29:07Z 2009-04-09T17:31:49Z

It is not alarmist to say that the Internet is the first truly panoptic system of the mind. Dumbfoundingly dense databanks can—and do—gorge themselves on one’s every move across a webpage. Web tools monitor every specific article a visitor reads,...

Laura Zapiain It is not alarmist to say that the Internet is the first truly panoptic system of the mind. Dumbfoundingly dense databanks can—and do—gorge themselves on one’s every move across a webpage. Web tools monitor every specific article a visitor reads, how she was referred to that article, and how long she spent reading it. These tools allow website owners to compile a comprehensive set of statistics about visitors to their websites, including how often they visit, their domains and countries of origin, what pages they view the most, and the operating system and web browser they use to access the website. This surveillance is omnipresent, all-knowing, and perfectly concealed. Some sites go even further and require completion of a registration process that involves relinquishing a zip code, email address, and full name. Compared to the non-wired world, the increase in monitoring capability in these circumstances is exponential. The extent of this information gathering is not only annoying, but also increasingly relevant as more and more government data mining programs, some of which rely on information gathered by private companies, are revealed to the public. This Note is about how this information should be treated. Part I describes how these systems function to track browsers’ interactions with websites. Part II examines problems with these systems, including the vulnerabilities they create for user privacy. Part III investigates techniques available to bypass compulsory registration. Part IV suggests how companies should address this issue, and Part V proposes a federal law, modeled on the Video Privacy Protection Act, to regulate the gathering and sharing of user information. tag:stlr.stanford.edu,2009://1.115 2009-03-23T14:20:12Z 2009-03-30T05:24:22Z

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...

Laura Zapiain 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. This Article: (1) explains the rationale underlying the enablement doctrine; (2) traces how the doctrine has evolved into various inconsistent tests; (3) analyzes the three new decisions; and (4) rejects the “full scope” rule that these decisions advance. Specifically, this Article argues that in the predictable arts, the full scope rule is extremely difficult to apply and will cause unnecessary litigation. Moreover, the enablement doctrine is a blunt instrument that rewards unintended beneficiaries and cannot consider all the facts important to an overbreadth analysis. Therefore, the enablement doctrine is not well suited to addressing the problem of generic or overbroad claims. This Article concludes that the Federal Circuit should take a step back from the full scope rule and return to the principles set forth in its earlier decisions. Finally, this Article suggests that if the Court truly wishes to address overbroad or generic claims, the doctrines of claim construction and the reverse doctrine of equivalents are better vehicles for accomplishing that goal. tag:stlr.stanford.edu,2009://1.113 2009-02-24T17:12:42Z 2009-02-24T17:17:03Z

INTRODUCTION Few people have read or watched the film adaptation of The Diving Bell and the Butterfly without proclaiming it a triumph of the human will. Jean-Dominique Bauby authored the memoir after suffering from a major stroke that left him...

Laura Zapiain INTRODUCTION Few people have read or watched the film adaptation of The Diving Bell and the Butterfly without proclaiming it a triumph of the human will. Jean-Dominique Bauby authored the memoir after suffering from a major stroke that left him paralyzed from head to toe with minor exception, but with his mental capacities intact. He did so through a novel form of dictation. Slowly and repeatedly a transcriber recited a French language frequency-ordered alphabet, to which Bauby communicated his story through the blinks of his one working eye. When the transcriber reached the letter of the word Bauby wished transcribed, he blinked once. He signaled the end of a word with two eye blinks, and used rapid eye blinks to communicate that she had guessed a letter or word ending incorrectly. Letter by letter, blink by blink, Bauby conveyed his thoughts to the transcriber. 200,000 blinks later, the story was done. His memoir provides the gripping detail of what it means to have full mental capacity and lack freedom of action to express one’s thoughts, desires, emotions, and expressions of humanity. That he could share his story is at once extraordinary and tragic that anyone should suffer the fate of such obstacles to effectuating his will. Today, Bauby might have instead used a revolutionary new environment. An emerging technology known as brain-machine interface is under development to transmit information to the brain from the external world, but also to translate brain activity into action on external objects in the world.1 Cyberkinetics Neurotechnology Systems, Inc. has developed a brain-machine interface technology that connects the motor cortex of the brain to a computer, enabling a subject to move a cursor on a computer screen, to check email, to change the volume, and to select or move anything on the screen that would be possible with cursor movements by simply thinking about hand movements, without moving any part of his physical body.2 By connecting Bauby to this brain-machine interface, he might have typed out his memoir himself by thinking about the letters of the words he wished to communicate. tag:stlr.stanford.edu,2009://1.109 2009-02-19T06:49:26Z 2009-02-19T07:13:04Z

Teneille Brown and Emily Murphy, the Symposium's first speakers, will be presenting their arguments against using neuroscientific evidence in courts. Panelists Michael Saks and David Faigman will be commenting. See below to read the abstract. -- In this paper we...

Laura Zapiain Teneille Brown and Emily Murphy, the Symposium's first speakers, will be presenting their arguments against using neuroscientific evidence in courts. Panelists Michael Saks and David Faigman will be commenting. See below to read the abstract. -- In this paper we will demonstrate that functional brain images should not be admitted into courts to prove criminal mental states. We will do so by walking through each step of the imaging methodology in plain terms, making it clear why the brain images are minimally probative when introduced to prove a defendant’s past mental state, and almost certainly more prejudicial than probative on balance. Functional images are also neither generally accepted nor scientifically valid for this purpose. So, given that functional brain images do not meet any of the relevant evidentiary standards, why would they be admitted at all during the guilt phase to prove mental states? Possible answers to this question range from the ordinary human error and legal bias, to improper authentication of the images and commercial scientists pushing their wares. Put simply, the adversarial process may not always work properly to keep the junk out. In Section I of this article, we laid out the terrain of how exactly functional brain imaging is being used in courts to negate mens rea and what this means for the criminal law. In Section II, we will look closely at the science behind functional neuroimaging, specifically functional magnetic resonance imaging (fMRI). In so doing we will critically examine the complex and unobvious steps required to produce the colorful brain images. In Section III we will apply the rules of evidence to the scientific findings from Section II, and will reveal why any marginal probative value may be substantially outweighed by the potentially prejudicial effects of brain images, even if other admissibility hurdles are cleared. In the event that the technology advances such that its prejudicial value can be sufficiently mitigated, in Section IV we will suggest some guidelines for properly assessing its evidentiary value. tag:stlr.stanford.edu,2009://1.107 2009-02-17T05:06:02Z 2009-02-17T16:20:05Z

On October 30, 2008, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) issued a decision that has potentially significant implications for innovation in many fields, but particularly in the online commerce and the software industry. Indeed,...

Laura Zapiain On October 30, 2008, the United States Court of Appeals for the Federal Circuit (“Federal Circuit”) issued a decision that has potentially significant implications for innovation in many fields, but particularly in the online commerce and the software industry. Indeed, with the issuance of In re Bilski, the Federal Circuit has substantially changed its position regarding the criteria for the patentability of a claim to a process and, thus, has reconsidered its own precedent, State Street Bank & Trust Co. v. Signature Financial Group, Inc. Under State Street, claims to a process were eligible for patent protection as long as they produced a “useful, concrete and tangible result.” Now, the Federal Circuit considers “that inquiry . . . insufficient to determine whether a claim is patent-eligible under §101,” and has adopted the “machine-or-transformation test.” Therefore, today, an inventor wishing to acquire a patent on a new process needs to ensure that her innovation is either connected to a specific machine or transforms an article. tag:stlr.stanford.edu,2009://1.105 2009-02-02T17:07:19Z 2009-02-02T17:09:14Z

I. THE ROLE OF INTENTION IN ASSESSING RESPONSIBILITY IN LAW AND MORALS The concept of an intention lies at the heart of the attribution of both moral responsibility and legal liability in the law of torts and of crimes. It...

Laura Zapiain I. THE ROLE OF INTENTION IN ASSESSING RESPONSIBILITY IN LAW AND MORALS The concept of an intention lies at the heart of the attribution of both moral responsibility and legal liability in the law of torts and of crimes. It does so in two ways. The first is as a marker (arguably the marker) of serious culpability in the doing of wrongful actions. As both the law of crimes and of torts recognize, doing some wrongful action because one intended to do it merits greater blame and more severe sanctions than does doing that same wrongful action recklessly or negligently. This implication of intention for responsibility is learned early on by children, who frame serious accusations of others in terms of their doing things “on purpose.” As Justice Holmes famously put it, “even a dog knows the difference between being stumbled over and being kicked.” Criminal law shares with dogs and children this emphasis on intention as essential to serious blame. As the U.S. Supreme Court once put it, “The contention that an injury can amount to a crime only when inflicted by intention is no provincial or transient notion. It is…universal and persistent in mature systems of law…[and] is almost as instinctive as the child’s familiar exculpatory, ‘But I didn’t mean to’…” The second way in which intention figures into attributions of responsibility has to do with wrongdoing rather than culpability. To do wrong is to act in a way that morality or the law prohibit, and intentions are at the root of action and agency. The very possibility of persons doing actions depends on persons having intentions. The old way of putting this was to say that “every action must be intentional under some description of it.” A more modern rendition is to say that every action begins with an intention, in the sense that intentions must be the immediate cause of those bodily movements through which persons act, for those movements to be actions at all. What are intentions? An older style of philosophy of mind translated such questions from “the material mode” to what was called “the linguistic mode.” The question then became, “what do we mean by our usages of the word, ‘intention?’” Despite the refusal of contemporary philosophy to equate these two “modes,” asking after the common concept of an intention will be a useful place to start. Finding the criminal law to be as instructive as ordinary speech, I shall in this section briefly mine both bodies of discourse for their meaning(s) of “intent” and like terms. tag:stlr.stanford.edu,2009://1.103 2009-02-02T16:49:13Z 2009-02-02T16:59:48Z

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...

Laura Zapiain 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. Again, as I stressed in the earlier article, the reality is that neuroimaging is “fraught with uncertainties,” that the steps used in the production and presentation of neuroimaging evidence are “not only... not standardized, they are easily manipulated by a person with the knowledge of the technology.” Some researchers characterize it as “indistinct.” Amanda Pustilnik, by way of example, concludes, “neuroscience cannot provide complete, or even sufficient, explanations of criminal violence by reference primarily to purported neurobiological dysfunctions within isolated parts of offenders’ brains.” Other scholars charge that “researchers, clinicians, and lawyers are seduced into becoming true believers in the merits of [brain imaging] for understanding the relationship between brain and behavior.” Stacey Tovino argues that the fMRI offers only “an illusory accuracy and objectivity.” But what is clear is that the existence of neuroimaging techniques has changed the contours of the playing field, and no matter which side of the divide we find ourselves on, we must acknowledge that reality. With this as backdrop, I turn to the topic that I have taken on for today’s talk: what impact will neuroimaging evidence have on a series of “criminal procedure situations,” the resolutions of which are inextricably intertwined with pre-existing socio-political views and attitudes of judges and jurors: (1) the implications of Ake v. Oklahoma (an indigent defendant's access to expert testimony) in cases where neuroimaging tests might be critical, (2) the defendant's competency to consent to the imposition of a neuroimaging test or examination; and (3) the impact of medications - specifically, antipsychotic medications - on a defendant's brain at the time that such a test is performed.. I hope that my presentation today spurs some additional hard thinking about this topic. The criminal procedure/evidence issues that I am raising here have all been the subject of extensive consideration in the scholarly literature and in litigated cases over the past three decades (and, in different guises, all have reached the US Supreme Court). All, in these other guises, are (or at least should be) familiar to scholars, practitioners and to judges. Yet, each of these “situations” is drastically underdiscussed in the neuroimaging literature and in the criminal procedure literature. With the exception of one discussion in the law review literature, one in the legal “cross-over” literature and one in the psychiatric “cross-over” literature, there has been no consideration at all of these issues in the context of what we are talking about here today: the admissibility of MRI and related evidence in criminal trials in the contexts of the questions I am raising here. tag:stlr.stanford.edu,2009://1.89 2009-01-05T15:07:56Z 2009-01-05T15:12:03Z

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...

Laura Zapiain 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. INTRODUCTION If the general case for copyright is an uneasy one, the case for copyright in light of the First Amendment is harder still. How can a body of law that functions to empower private actors to restrict expression be accommodated within a constitutional order so committed to the liberty of the mind? To date, the answers to this question have been unsatisfactory, primarily because they fail to properly appreciate the constitutional balance struck between the Copyright Clause and the First Amendment—or so I will argue. My negative claim is that most attempts to square copyright with free speech suffer from one of two shortcomings. Some rely on the definitional coherence between free speech and copyright to conclude that copyright laws as they exist are presumptively constitutional and that the First Amendment is only implicated when Congress “alter[s] the traditional contours” of copyright law. But this approach confounds consistency in principle and consistency in practice, and it cannot provide sufficiently meaningful free speech limits on copyright. Others doubt copyright’s “built-in First Amendment accommodations” and instead attempt to build free speech limits from the ground up. But doing so ignores the constitutional balance struck at the Framing, treating copyright like any other restriction on expression. The Copyright Clause itself, I will argue, is an expression of First Amendment values, and it ought to be enforceable as such. In other words, the clause’s internal limits—including, for example, originality —are not merely the formal boundaries of congressional power under the Copyright Clause but are instead free speech principles that warrant careful application. In some ways, this free speech theory of copyright is unremarkable, since it is consistent with the Court’s view that “the Framers intended copyright itself to be the engine of free expression.” At the same time, the free speech theory of copyright helps answer a number of complicated questions, from whether Congress can appeal to commerce or treaty powers to avoid Copyright Clause limits (it can’t) to whether the Court’s “traditional contours” approach in Eldred v. Ashcroft is consistent with its suggestion that copyright embodies free speech values (it isn’t). Part I explains why attempts to describe the First Amendment limits on copyright have thus far fallen short. I begin with a taxonomy of these attempts. Arguments ultimately fail in one of two ways, which I label, for simplicity, “accommodationism” and “unexceptionalism.” The accommodationists overemphasize the Framers’ vision of consistency between copyright and free speech, whereas the unexceptionalists seem to ignore the constitutional balance altogether. Missing in these dueling accounts is an approach to Copyright Clause limits that embraces copyright as the engine of free expression, resisting the unexceptionalist impulse to treat copyright like any other kind of law, while recognizing the fact that Copyright Clause limits exist to protect free expression. Part II outlines a free speech theory of copyright, which is an attempt to fill in this gap. I argue that the Copyright Clause imposes limits on congressional power that embody free speech principles, and these limits are a necessary condition—both historically, as a description of the motivations of the Framers, and analytically—for the coherence of copyright law and the First Amendment. The clause’s limits are thus in a real sense free speech protections, and they should be enforced as such. Having established the importance of Copyright Clause limits, I describe how each of them ought to be applied in practice. Part III considers the implications of the free speech theory of copyright for a central issue of constitutional copyright law: whether and how the Copyright Clause’s limits apply externally to other enumerated powers. This issue is made especially salient by recent challenges to copyright-like laws concededly inconsistent with the Copyright Clause that have been passed pursuant to either the Commerce Clause or the Treaty Clause. tag:stlr.stanford.edu,2009://1.87 2009-01-02T18:11:05Z 2009-01-03T02:12:01Z

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...

Laura Zapiain 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. I would like to suggest that the unsatisfying relationship of law and science can be attributed, at least in part, to law’s inadequate understanding of what constitutes science and law’s inflated view of the potential benefits of science for law. It is our failure to understand what science knows about its own enterprise, as well as our fervent hope that law could be something other than it is, that leads us astray. In highly simplified form, what we think of as science today began its history deeply entwined with philosophy and theology. During the Scientific Revolution, science separated from other types of intellectual endeavor, although the lines of demarcation were never solid. In the mid-twentieth century, philosophers challenged the notion that science could be so neatly discrete, although they were unable to settle on a coherent definition. An uneasy truce developed in which science is, at best, defined as a cluster of concepts, albeit ones that do not work individually or even as a whole. For my purposes, the important point is the following: those things that make science what it is are a far cry from law’s vision of science. Such distortions in law’s understanding of the nature of science magnify the problems created when law tries to import structures from science to solve its problems. Some would argue that problems at the intersection of law and science flow from the changing nature of science. Law is too slow to adapt to the changing information available through the advancements of science, particularly for issues that are dependent on the Supreme Court revisiting those issues. Delay in the legal system is certainly a problem when law and science interact. In my view, however, the deepest problems flow not from the changing nature of science but from the changing nature of law. Law is by its nature evolutionary and adaptive. There are no ultimate doctrinal structures in law because there are no ultimate questions. Those wishing to escape the constraints of any doctrinal structure will seek out the open spaces, the interstices among those things that have been decided. Cases will naturally emerge within the spaces of whatever structure exists, rendering that structure insufficient for resolving the new question. When we borrow structures from science, the adaptive process breaks down, and it does so for several reasons. The most obvious is that we do not understand the science we are importing or applying. As a result, we do not allow law to evolve in a very effective or nuanced fashion. More important, however, is our tendency to imagine that science is clear and certain. We forget that scientific lines and categories are themselves no more than constructs. They are ways of creating shared understandings within the scientific community. In a legal context, however, we easily lose sight of the artificiality and the assumptions that such constructs embody. We become fixated on scientific categorizations, as if lines drawn by science have some mysterious power that we can access by invoking them. As a result, we fail to engage in the natural evolution and adaptation of the resulting doctrines. In short, when the legal system relies on science to craft its rules, those rules lack the flexibility and dexterity necessary for effective participation in the evolution of legal doctrine. With this in mind, the article begins by describing law’s vision of science as an enterprise that is reliable, sustainable, and true in some absolute sense. The article then contrasts that view with science’s vision of its own enterprise as something much more limited. In particular, it describes the turmoil that developed during the twentieth century over the definition of science and the uneasy truce that has emerged. Finally, the article explores the nature of law and suggests that the constantly evolving nature of law makes science a bad fit for the way we try to use it in the development of legal doctrines. tag:stlr.stanford.edu,2008://1.85 2008-12-10T06:18:13Z 2008-12-10T06:45:34Z

Whatever lip service we may pay to those spaces “immemorially . . . held in trust for the use of the public,” the Internet is operatively the most important public forum ever created. Its vast interconnectivity far more nearly approximates...

Laura Zapiain Whatever lip service we may pay to those spaces “immemorially . . . held in trust for the use of the public,” the Internet is operatively the most important public forum ever created. Its vast interconnectivity far more nearly approximates the prototypical “marketplace of ideas” than do warring politicos duking it out on the op-ed pages or, for that matter, in opposing briefs. However, the very features that make the internet fertile ground for cultural and political discourse—anonymity and pseudonymity; intellectual symbiosis and parasitism; fractal sprawl, audience dispersal and many-to-many architecture—render it a treacherous landscape for its custodians. In recognition of that fact, Congress in 1996 passed the Communications Decency Act, which nearly eliminated the liability that website administrators face for third-party generated content. [NOTE: Footnotes in this abstract were omitted. The full abstract with footnotes can be found in PDF form here]]]> tag:stlr.stanford.edu,2007://1.21 2008-02-02T08:22:09Z 2008-12-10T06:26:16Z

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 2008-01-29T01:42:00Z 2008-01-29T08:12:32Z

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 2008-01-26T01:45:07Z 2008-01-26T04:30:33Z

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 2007-06-19T06:06:00Z 2007-06-19T14:07:07Z

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 2007-02-27T11:19:43Z 2007-04-06T04:02:39Z

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.