Trade Secrecy Injunctions,Disclosure Risks,and eBay's Influence

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four‐factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts’ more deliberative approach to patent injunctions post‐eBay has been viewed as beneficial for the patent system. Over the past decade, eBay’s influence has migrated to other areas of IP. This article offers the first account of eBay’s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP—for example, the hard‐to‐quantify risk that disclosure poses to trade secret owners—has lessened eBay’s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret—that is, where a defendant builds upon a plaintiff's trade secret but does not disseminate it—courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility.     

Anti‐suit Injunctions and the Doctrine of Comity

Hin‐Pro International Logistics Limited v CSAV is an important case in the areas of anti‐suit injunctions, contractual interpretation and private international law. Despite the ambiguities surrounding the jurisdiction clause contained in the bills of lading, the Court of Appeal construed the jurisdiction clause as ‘exclusive’ in the context of a ‘contractual background’, and affirmed the continuation of the anti‐suit injunction granted by the Commercial Court. It is argued that the approach of applying the common law principles of contractual interpretation to a bill of lading is questionable. The approach used to apply English private international law is problematic in a number of ways. There are legitimate reasons for concern that the doctrine of comity in English private international law may become undermined as a result.     

The Relationship Between Legal and Non-legal Verses in the Qur’an: An Analytical Study of Three Themes of the Qur’an

The Qur’an is considered by Muslim scholars to be one of the two primary sources of Islamic law. The Qur’an deals with many diverse matters, including beliefs, morals, ethics, legal issues and historical narratives. We are not concerned here with establishing the exact proportion of the Qur’an devoted to each of these various categories and in particular to legal rulings. Rather, the pivotal aim of the present investigation is to establish the fact that the whole Qur’an is interrelated, and that the non-legal material in the Qur’an ultimately supports its legal system. This article, therefore, attempts to contribute to the discussion on this issue by asserting that although a large part of the Qur’an does not contain explicit or even implicit legal rulings, it serves, however, to consolidate and establish the Islamic legal system. This assertion is founded on an analysis of the relationship between the legal verses and those with no direct legal rulings stated in them. This article will broadly assess three major themes in the Qur’an which are: God, the Prophet and His message and the present life with the Hereafter. It will underscore their relationship to explicit legal injunctions. These themes are doctrinal in nature but as the analysis will show, they are woven into the framework of the injunctions themselves thereby forging a link between creed and law.     

论知识产权侵权行为的归责原则

知识产权侵权归责原则在我国一直是一个颇具争议的问题.知识产权侵权行为与侵权责任的归责原则应区分而论,就知识产权侵权行为又分为直接侵权和间接侵权,直接侵权应适用无过错责任原则,间接侵权应适用过错责任原则.侵权责任可分为停止侵权和损害赔偿,停止侵权使用无过错责任原则,损害赔偿则适用过错责任原则.     

Questions on the law of evidence in plant variety infringement proceedings

Legal context. Section 940 of the German Civil Procedure Actproviding interim injunctions is applicable, inter alia, inthe enforcement of Plant Variety Rights. Key points. The nature of plants, as living organisms, meansthat the enforcement of intellectual property rights againstalleged infringers raises issues of proof and evidence thatare unique to their subject matter. Practical significance. Interim injunctions have great practicalimportance in Plant Variety infringement cases. Significantevidence problems exist due to the natural variations in plants.This article discusses the practical requirements for establishingevidence of infringement of plant variety rights in actionson the merits as well as in interim injunction proceedings.     

Youth gangs and unions: Civil and criminal remedies

This paper revisits James Jacobs’ interest in prison gangs. We first address criminologists’ neglect of labor corruption, then discuss the street and prison gangs with which Jacobs was concerned and societal responses to them. Subsequent trends in street gangs and efforts to control them are reviewed and compared to recent organized crime control efforts. Special attention is given to civil gang injunctions (CGIs), the most popular civil remedy for street gangs, and special problems they create for prison gang members who return to their communities. Research and policy in this area require that the great variety among communities as well as street and prison gangs be recognized.     

Rethinking Injunctions in Tort Law

This article considers the way in which injunctions have generallybeen made more freely available in tort in connection with theprotection of property and property-like interests. It arguesthat this prioritization of property can be viewed as underminingthe generally accepted hierarchy of protected interests. Itthen argues that if negligence law were seen as a tort thatembraces not just careless, but also deliberate and recklessconduct, it could be used as a basis for granting injunctionsin a number of important circumstances that would help to restorethe right to bodily integrity to its rightful place at the topof the hierarchy of protected interests in tort law.     

Clinical ethics committees, due process and the right to a fair hearing

The development of clinical ethics committees in the United Kingdom raises a number of important questions about the extent to which they are compatible with the normative values of due process. If committees are to be active in delivering ethics services, it is argued that attention to due process is important. Based on research outcomes, it seems that the chairs of the United Kingdom clinical ethics committees who responded are reasonably satisfied about the ability of their committees to make ethical decisions and slightly less confident about their ability to make legal decisions. If these committees are to make potentially far-reaching decisions (whether or not involving live consultations), it is argued here that they must pay attention to the rules associated with the legal concept of due process. Equally, evaluation of the clinical ethics committee's counterpart in the United States suggests that they may become increasingly authoritative, especially as their role becomes entrenched. This makes attention to due process even more important. However, it is also proposed that, when committees become concerned about due process, their ability to "do ethics" is constrained.     

美国妨害法在环境侵权救济中的运用和发展

环境侵权救济 ,特别是环境侵害的排除 ,关涉受害人保护和产业发展的平衡。从美国传统妨害法在环境侵权救济中的运用和发展来分析 ,其维护环境正义与经济发展双重目标的有关理论和制度值得我国环境立法和环境司法实践参考和借鉴。     

The Devil and the Deep Blue Sea? A Critique of the Ability of Community Mediation to Suppress and Facilitate Participation in Civil Life

This article revisits debate between academics and practitioners about the potential of community mediation. While mediation evangelicals make bold claims about the possibility of mediation helping to rebuild communities, academic critics have been suspicious of such contentions and claimed instead that mediation has provided just another route through which the state can interfere in the life of its citizens. It is argued here that debate on the topic has been clouded by unduly high expectations of disputes as agents of social change. Their importance has been understood by reference to their ability to rebuild communities or their potential to become test cases. It is argued here that mediated disputes make much more modest challenges to state authority but that they can be aided in this by the intervention of mediators prepared to take a pragmatic approach to the unachievable ideal of neutrality. The article does not conceive of community mediation as an alternative of the state or its agent. Rather, it suggests that mediators can be embedded within both worlds and act as message-bearers between them.     

Controlling Access to Pick-up and Delivery Vans: The Cost of Alternative Measures

Over the past decade - following the disastrous attacks of 9/11 - we have witnessed the introduction of a range of trans-border security programs designed to protect international supply chains against acts of terrorism. In most if not all cases, these programs comprehend the introduction of situational measures, and in many cases operators in the industry are left with limited guidance on how best to implement them. In academic literature on situational crime prevention it is argued that - when introduced without proper reflection and consideration - preventive measures can easily backfire and turn into the negative. It is argued that measures need to be carefully assessed prior to their implementation, and that this assessment should focus on various criteria. In the study reported on in this paper, these observations are illustrated by means of an ex ante consideration of alternative measures to control unauthorised access to pick-up and delivery vans. This study was conducted in 2011 in a Belgian branch of an international express operator, and is limited to the selection process of preventive measures only. The outcome illustrates that - when deciding on what measures best to implement - it may be worthwhile or even necessary not to focus on monetary costs only, but to also take a number of other cost items into consideration; and to make sure that a number of preconditions are in place in order for the introduction of a measure to be feasible and successful. It is argued that an exante consideration of alternative solutions will contribute to making the decision onwhat measures best to implement a more informed and balanced one.     

The desirability of goal conflict within the criminal justice system

A pervasive interest in the creation of a monolithic system for the administration of justice which is characterized by the lack of fragmentation and goal conflict is found throughout the criminal justice literature. This paper questions the basis and desirability of such a proposal. It is argued that criminal justice exists in a sociopolitical environment in which diverse groups exercise influence in accordance with their own interests. For this reason, it is highly unlikely that a single set of values could be identified upon which to base a monolithic system. It is further argued that goal conflict within criminal justice is desirable in that different interests can be reflected, there is a basis for system adaptation and change, and the system can better promote the smooth processing of offenders.     

The recognition and protection of well-known trade marks in Indonesia

Legal context: The recognition and protection of well-known marks in Indonesiahas improved over the last few years for a variety of reasons. Key points: First, the Asian Crisis resulted in the creation of a CommercialCourt, which is a clear improvement over the previously responsibleDistrict Courts. Secondly, the increasingly frequent publicationof court decisions has improved transparency and consistencyof those decisions. Well-known marks are now clearly protectedagainst use for similar goods/services. Protection is extendedto dissimilar goods/services by applying Article 16(3) TRIPSdirectly or by arguing that registration occurred in bad faith.Nevertheless, decisions thus far concern almost exclusivelyrevocation and invalidity of registrations. Civil remedies suchas damages and interim injunctions are hardly used, becausethe outdated civil procedural law has not familiarised judgeswith such legal instruments. Clearing the register of infringingregistrations is another matter of concern. Cancellation fornon-use for three consecutive years can be difficult, becausethe plaintiff is required to provide evidence of the last usein the production of the goods/services rather than in the courseof trade more generally. Practical significance: While it has become much easier to protect well-known marksin Indonesia, much work remains to be done regarding the proceduralframework of civil infringement proceedings and regarding theclearing of the register.     

Economic models of compensation for damage caused by nuclear accidents: Some lessons for the revision of the Paris and Vienna Conventions

In this paper the economic analysis of accident law is used to examine the liability for nuclear accidents. It is argued that the classic system of individual liability of a nuclear power plant operator with a financial cap on compensation and individual insurance by national pools is not effective. The current system leads to a too low compensation for victims and lacks an adequate internalization of the nuclear risk. Hence, it is argued that the economic analysis of law can provide useful insights for the revision of the Paris and Vienna Conventions on the liability for nuclear accidents. It is also argued that higher amounts of compensation can be generated only if the idea is accepted that all plants share the costs of an accident wherever it occurs. This could be realized through a mutual pooling system. Such a system could also be fitted into the revision of the Paris and Vienna Conventions.     

Legal Paternalism and Legal Moralism: Devlin, Hart and Ten*

Abstract
H. L. A. Hart in his Law, Liberty, and Morality (1963) defended the view that legal paternalism and legal moralism can be clearly distinguished from each other. Hart also stated that while legal moralism is always unacceptable, paternalistic laws are often justifiable. In this paper it is argued that Hart held the right view for the wrong reasons. Hart defended legal paternalism by claiming, against J. S. Mill, that for various psychological reasons individuals do not know their own interests best. It will be shown in the paper that if this view is taken, it is impossible to reject legal moralism. The fact that paternalism is sometimes justifiable while moralism is not can be more firmly founded on a distinction made by C. L. Ten (1971). Ten's point is that in matters which concern only the individuals themselves, their actions cannot be legitimately restricted by appeals to the consequences of their action alone. Paternalistic control can be justified only if the decision-making abilities of the controlled individual are temporarily diminished.     

The Last Bite of the BITs—Supremacy of EU Law versus Investment Treaty Arbitration

According to Article 267 TFEU, national courts of the EU Member States can (and sometimes must) ask for a preliminary ruling from the Court of Justice on the interpretation and application of Community law, including international treaties and recommendations, and on the validity of Community secondary legislation. In this way, it is ensured that EU citizens are treated equally throughout the Union. However, this is not applicable when it comes to arbitral proceedings, be they commercial or investment arbitrations. The Court does not accept references for preliminary rulings from arbitral tribunals. For this reason, respondent states in international arbitral proceedings have argued that arbitration and EU law are utterly incompatible. In their submissions as respondents in arbitral proceedings, EU Member States have argued that, as a result of EU accession, bilateral investment treaties (BITs) have been automatically terminated. In subsidiary, they sometimes claim that, due to their incompatibility with EU law, BITs cannot apply. But if BITs are not applicable anymore, there are few remedies left for investors within the EU.     

Restrictions on legal aid in family law cases in England and Wales: creating a necessary barrier to public funding or simply increasing the burden on the family courts?

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) resulted in significant cuts to the availability and scope of legal aid in family law proceedings. Some four years after the cuts were implemented, there has been a great deal of research about their devastating impact on vulnerable groups and individuals. This paper considers the other victim of the cuts, the family court itself. It is currently bulging under pressure from both an increase in applicants who have been forced to represent themselves in family proceedings and also from a rise in applications for injunctions linked to domestic violence. This paper will draw on case law to demonstrate that the reforms implemented through LASPO have seemingly only succeeded in passing the burden from one publicly funded agency, the Legal Aid Agency, to another, HM Courts and Tribunals Service. The family court system is currently at breaking point and further government review is urgently needed if people are going to be able to continue to use the system effectively.     

Bouvia v. County of Riverside

The plaintiff, a quadriplegic with cerebral palsy, had admitted herself voluntarily to the psychiatric department of Riverside General Hospital in September 1983. She then revealed her intention of starving herself to death, requested that hospital personnel administer only pain medication and hygienic care, and sought preliminary and permanent injunctions to prevent the hospital from either force feeding, transferring, or discharging her. The essence of her legal claim was that society was obliged to honor, and to assist her in carrying out, her privacy right to end her life. While the Superior Court recognized a patient's right to refuse life-sustaining care under some circumstances, it ruled that because Bouvia's condition was not terminal, her rights must yield to the interests of the state and other third parties in preserving life.     

Assisted reproduction and mental illness: a human rights perspective from New Zealand

Developments in our ability to artificially assist reproduction have led to new and more social applications for medicine. Parallel to this has been an increasing acceptance and understanding of mental illness. Yet it may be argued that mental illness should preclude an ability to parent by means of state-involved artificial reproductive technologies. Through examination of current New Zealand human rights law, it is argued that such practice would be discriminatory. While there is some room to grant an exception to allow such discrimination, it is doubtful that such a decision would ever be made. Any reasons to justify an exception are unlikely to meet the high threshold demanded by current law.     

The Influence of Self-Threats on Fairness Judgments and Affective Measures

This paper focuses on the question of why fairness matters to people. Extending on terror and uncertainty management theories and the literature on the self, it is proposed here that fairness can be a means of self-defense. Thinking of a situation that is threatening to the self therefore should make fairness a more important issue to people. The findings of two experiments support this line of reasoning: Asking participants to think about things that are threatening to themselves led to stronger reactions to manipulations of both procedural and distributive fairness. In the discussion it is argued that these findings suggest that fairness especially matters to people when they are trying to deal with threats to their selves.