Current Issue

Articles

How Courts Adjudicate Patent Definiteness and Disclosure
John R. Allison & Lisa Larrimore Ouellette
PDF

Section 112 of the Patent Act requires patentees to clearly explain what their invention is (a requirement known as claim definiteness), as well as how to make and use it (the disclosure requirements of enablement and written description). Many concerns about the modern patent system stem from these requirements. But despite the critical importance of § 112 to the functioning of the patent system, there is surprisingly little empirical data about how it has been applied in practice. To remedy the reliance on anecdotes, we have created a hand-coded dataset of 1144 reported court decisions from 1982 to 2012 in which U.S. district courts or the Court of Appeals for the Federal Circuit rendered a decision on the enablement, written-description, or claim-definiteness requirements of § 112. We coded validity outcomes under these three doctrines on a novel five-level scale so as to capture significant subtlety in the strength of each decision, and we also classified patents by technology and industry categories. We also coded for a number of litigation characteristics that could arguably influence outcomes. Although one must be cautious about generalizing from reported decisions due to selection effects, our results show some statistically significant disparities in § 112 outcomes for different technologies and industries—although fewer than the conventional wisdom suggests, and not always in the direction that many have believed. Just as importantly, our analysis reveals significant relationships between other variables and § 112 litigation outcomes, including whether a district court or the Federal Circuit made the last decision in a case, whether a patent claim was drafted in means-plus-function format, and whether a case was decided before or after Markman v. Westview Instruments. Our results showing how § 112 has been applied in practice will be helpful in evaluating current proposals for reform, and our rich dataset will enable more systematic studies of these critical doctrines in the future.

Silence, Confessions, and the New Accuracy Imperative
Lisa Kern Griffin
PDF

Silence is both overpriced and underrated. This Article assesses the status of silence in light of renewed attention to reliability in criminal procedure. First, it considers the meaning of silence, both outside of the criminal justice process and within it. The Article then describes how silence can safeguard the context of confessions by making space for suspects to choose or reject engagement while shielding the content of statements from government manipulation. This account seeks to advance the discussion about protecting silence beyond the debate as to whether it advantages the innocent or the guilty. Empirical developments concerning wrongful convictions establish that factually innocent defendants do make false confessions, that the government often co-authors those statements, and that errors occur because the cost to defendants of staying silent is too high. The Article concludes by evaluating both exclusionary rules and law enforcement regulation that could better protect silence and, in doing so, enhance accuracy.

Notes

The Questionable Constitutionality of Curtailing Cuckolding: Alienation-of Affection and Criminal-Conversation Torts
H. Hunter Bruton
PDF

What can you do if your husband or wife cheats on you? Go to a marriage counselor? Seek a divorce? Sue the marital interloper for millions of dollars in damages? The third option is still available in some states through actions euphemistically titled “alienation of affection” and “criminal conversation.” This Note tackles their constitutionality in light of the Supreme Court’s growing body of jurisprudence dealing with intimate relations and marital status. Put simply, it attempts to answer the question: Is there a constitutional right to commit adultery? After exploring both the First and Fourteenth Amendments as avenues for establishing this right, this Note explains how states could tailor these torts to pass constitutional scrutiny. It also discusses specific concerns regarding matters of marital choices raised by the Supreme Court’s recent decision in Obergefell v. Hodges. Though there is no definite answer, this Note covers as much ground as possible to see if states have any room to constitutionally curtail cuckolding.

Removing the “Silencer”: Coverage and Protection of Physician Speech Under the First Amendment
Ryan T. Weiss
PDF

The physician–patient relationship rests on a bedrock of trust. Without trust, patients—and for that matter, physicians—are less willing to divulge information critical to providing accurate medical diagnoses and treatments. The state of Florida seemingly ignored this when its legislature, with support from the National Rifle Association and other pro-gun advocates, enacted the Firearm Owners Privacy Act (FOPA), a statute that restricts physicians from questioning their patients about firearm ownership. In Wollschlaeger v. Governor of Florida, the United States Court of Appeals for the Eleventh Circuit held that FOPA did not regulate physician speech but, instead, regulated physician conduct. As such, the law was exempted from First Amendment scrutiny. But almost one year to the day after publishing its first Wollschlaeger opinion, the Eleventh Circuit sua sponte vacated its original opinion and substituted in its place a brand new opinion—one holding that FOPA was subject to First Amendment scrutiny, but nonetheless passed constitutional muster.

This Note uses the diverging Wollschlaeger opinions as a vehicle to analyze the First Amendment’s coverage and protection of physician speech. Specifically, it argues that an uninhibited line of communication is required to protect the trust necessary for an effective physician–patient relationship. This logical underpinning leads to the conclusion that the First Amendment presumptively covers physician speech and, furthermore, that physician speech should be subject to intermediate scrutiny—a level of scrutiny that FOPA cannot meet.

Current Issue

Articles

How Courts Adjudicate Patent Definiteness and Disclosure
John R. Allison & Lisa Larrimore Ouellette
PDF

Section 112 of the Patent Act requires patentees to clearly explain what their invention is (a requirement known as claim definiteness), as well as how to make and use it (the disclosure requirements of enablement and written description). Many concerns about the modern patent system stem from these requirements. But despite the critical importance of § 112 to the functioning of the patent system, there is surprisingly little empirical data about how it has been applied in practice. To remedy the reliance on anecdotes, we have created a hand-coded dataset of 1144 reported court decisions from 1982 to 2012 in which U.S. district courts or the Court of Appeals for the Federal Circuit rendered a decision on the enablement, written-description, or claim-definiteness requirements of § 112. We coded validity outcomes under these three doctrines on a novel five-level scale so as to capture significant subtlety in the strength of each decision, and we also classified patents by technology and industry categories. We also coded for a number of litigation characteristics that could arguably influence outcomes. Although one must be cautious about generalizing from reported decisions due to selection effects, our results show some statistically significant disparities in § 112 outcomes for different technologies and industries—although fewer than the conventional wisdom suggests, and not always in the direction that many have believed. Just as importantly, our analysis reveals significant relationships between other variables and § 112 litigation outcomes, including whether a district court or the Federal Circuit made the last decision in a case, whether a patent claim was drafted in means-plus-function format, and whether a case was decided before or after Markman v. Westview Instruments. Our results showing how § 112 has been applied in practice will be helpful in evaluating current proposals for reform, and our rich dataset will enable more systematic studies of these critical doctrines in the future.

Silence, Confessions, and the New Accuracy Imperative
Lisa Kern Griffin
PDF

Silence is both overpriced and underrated. This Article assesses the status of silence in light of renewed attention to reliability in criminal procedure. First, it considers the meaning of silence, both outside of the criminal justice process and within it. The Article then describes how silence can safeguard the context of confessions by making space for suspects to choose or reject engagement while shielding the content of statements from government manipulation. This account seeks to advance the discussion about protecting silence beyond the debate as to whether it advantages the innocent or the guilty. Empirical developments concerning wrongful convictions establish that factually innocent defendants do make false confessions, that the government often co-authors those statements, and that errors occur because the cost to defendants of staying silent is too high. The Article concludes by evaluating both exclusionary rules and law enforcement regulation that could better protect silence and, in doing so, enhance accuracy.

Notes

The Questionable Constitutionality of Curtailing Cuckolding: Alienation-of Affection and Criminal-Conversation Torts
H. Hunter Bruton
PDF

What can you do if your husband or wife cheats on you? Go to a marriage counselor? Seek a divorce? Sue the marital interloper for millions of dollars in damages? The third option is still available in some states through actions euphemistically titled “alienation of affection” and “criminal conversation.” This Note tackles their constitutionality in light of the Supreme Court’s growing body of jurisprudence dealing with intimate relations and marital status. Put simply, it attempts to answer the question: Is there a constitutional right to commit adultery? After exploring both the First and Fourteenth Amendments as avenues for establishing this right, this Note explains how states could tailor these torts to pass constitutional scrutiny. It also discusses specific concerns regarding matters of marital choices raised by the Supreme Court’s recent decision in Obergefell v. Hodges. Though there is no definite answer, this Note covers as much ground as possible to see if states have any room to constitutionally curtail cuckolding.

Removing the “Silencer”: Coverage and Protection of Physician Speech Under the First Amendment
Ryan T. Weiss
PDF

The physician–patient relationship rests on a bedrock of trust. Without trust, patients—and for that matter, physicians—are less willing to divulge information critical to providing accurate medical diagnoses and treatments. The state of Florida seemingly ignored this when its legislature, with support from the National Rifle Association and other pro-gun advocates, enacted the Firearm Owners Privacy Act (FOPA), a statute that restricts physicians from questioning their patients about firearm ownership. In Wollschlaeger v. Governor of Florida, the United States Court of Appeals for the Eleventh Circuit held that FOPA did not regulate physician speech but, instead, regulated physician conduct. As such, the law was exempted from First Amendment scrutiny. But almost one year to the day after publishing its first Wollschlaeger opinion, the Eleventh Circuit sua sponte vacated its original opinion and substituted in its place a brand new opinion—one holding that FOPA was subject to First Amendment scrutiny, but nonetheless passed constitutional muster.

This Note uses the diverging Wollschlaeger opinions as a vehicle to analyze the First Amendment’s coverage and protection of physician speech. Specifically, it argues that an uninhibited line of communication is required to protect the trust necessary for an effective physician–patient relationship. This logical underpinning leads to the conclusion that the First Amendment presumptively covers physician speech and, furthermore, that physician speech should be subject to intermediate scrutiny—a level of scrutiny that FOPA cannot meet.