Deploying pre-grant patent opposition mechanisms in Africa to monitor abuse of the patent system

This article examines the extent to which African countries could deploy pre-grant patent opposition provisions in their domestic patent regimes to mitigate the abuse of the patent system. The author argues that the public has the right to participate in the patent system in order to oppose the grant of bad patents. Therefore, if African countries were to strengthen legislative provisions on pre-grant opposition civil society and non-governmental organisations that represent the interests and will of citizens would be able to invoke key provisions to challenge any abuse in the patent system in order to protect the public interest.     

Maximizing patent term in the USA

Legal context: The standard term of a US utility patent is twenty years fromits filing date, but the term may be extended for various reasons.The statutory Patent Term Adjustment (PTA) scheme automaticallyextends the term of a patent by the number of days of delayin prosecution attributable to the United States Patent andTrademark Office (USPTO), minus the number of days of delayattributable to the applicant. By avoiding actions or inactionsthat result in delay, a US patent applicant may maximize theterm of the resulting patent. This article is intended particularlyfor practitioners outside the US who are instructing a US practitioner. Key points: Delay by the applicant chiefly results when more than threemonths elapses from the mailing of a USPTO action or requirementto receipt of the applicant's response or when a paper is filedat an inappropriate time. Such delays may be avoided or minimizedby promptly sending instructions and required documents to theUS patent attorney or agent in charge of the case. Time spentin an ultimately successful appeal of a final rejection willincrease PTA. Errors in PTA calculations by the USPTO may becorrected upon filing a request. Practical significance: PTA can be a potent source of extended US patent term, especiallywhen the applicant takes care not to introduce delay into theexamination process.     

An interdisciplinary collaborative model for developing psycholegal questions in court ordered child custody evaluations

When a child custody evaluation is ordered from the bench, it is common practice for a judge to include a request for psychological evaluation of the parents and their minor children. Occasionally, a judge will provide a list of questions to be assessed. It is often left to the examiner to draw inferences from the court order and pleadings about the precise scope and purpose of the evaluation. This article proposes a model for the interdisciplinary collaboration of judges, attorneys and evaluators prior to the writing of the court order in the formulation of specific psycholegal questions that reflect the concerns of the court as well as those of the attorney and their clients and which may be anchored in the behavioral science literature. Such a model best suits the court by providing information on specific, legally relevant areas useful to the trier of fact.     

对中外专利商标司法救济模式的调查分析与比较研究(上)

其他国家和地区的专利、商标司法救济模式大体可以概括为四种 :即以美国为代表的选择模式、以德国为代表的专利法院模式、以我国台湾地区为代表的行政法院救济模式和日本的普通法院行政诉讼模式。     

Vital parameters for patent morality a question of form

Legal context: At the interface between patent law and biotechnology, a debatehas arisen over the application of the morality provision, designedto ensure the future development of society on a principledbasis. This article reviews the provision in its European context,adopting UK and European perspectives for analysis. Key points: Analysis of the provision identifies that there is ambiguityregarding interpretation of the morality provision, which haslead to inconsistent application between the European PatentOffice and the European Patent Boards. This article assessesthe provision in the context of the patent system and offersa legal philosophy framework within which to understand theprovision as conveying: a methodology, a standard of moralityand a source for that standard which can be utilized to describethe possibilities. It then re-centres the debate to its practicalcontext in order to demonstrate that the patent system removesthe options which are inapplicable: advocating valid and achievablemethods for complying with the law both nationally and on aEuropean level. Practical significance: The morality provision has become an accepted ‘wild card’in assessing the patentability of biotechnology: it has cometo rely upon the identification of danger areas in innovationthat may trigger moral objections. This falls far short of thelegal certainty which is so vital to biotechnological growth.In the face of the impending implementation of the unitary patentright across Europe, the importance of achieving a predictableand practical approach to applying the morality cannot be underestimated.     

The wonderful world of patent drafting

To anyone involved in patent litigation, it is clear that thetask of drafting is not for the faint-hearted. Those who draftpatents are acutely aware of the pitfalls which await theirclients following even a mere slip of the pen. This commentator,who is daily involved in the pre-filing review and prosecutionof patents and, alongside clients, assisting lawyers in manycountries with patent litigation,     

在押被告与律师会见通信权的保障与限制——以欧洲人权法院裁判为借镜

在押被告能够接触辩护律师并在不受监察的情况下进行会见通信,是达成有效辩护的关键,但基于监所秩序管理与刑事程序保全,又不能一概排除限制会见通信的措施。这里涉及不同目的之间的冲突和调和,在此欧洲人权法院裁判关于会见通信保障与限制的解释与运作值得参考。我国《刑事诉讼法》应确立自由交流权的立法基点,在押被告与辩护律师之间,应以会见通信不受监察为原则,限制会见通信为例外。监察措施应贯彻必要性和比例性原则,构建防止监察手段滥用的程序担保措施。     

INTRAFAMILIAL COMMUNICATIONS

Although testimonial privileges undermine the general rule that all relevant evidence is admissible at trial, legislatures and courts have recognized certain privileges primarily to protect. In these cases, the courts and legislatures have balanced the competing interests of full disclosure, on one hand, and the preservation of valued relationship, on the other, and have found that the latter outweighs the former. The attorney-clint privilege, for example, exists to encourage truthful communications between attorney and client so that the client may obtain complete and accurate legal advice. Likewise, the marital privilege protects confidences between spouses to preserve the institution of marriage. The parent-child relationship, while certainly valuable to society, has not been afforded the same protection. This note argues that a parent-child privilege should exist. Basic constitutional principles, as well as comparative and social policy arguments, support the recognition of a parent-child privilege .     

An organization's waiver of the attorney-client privilege and/ or the attorney work product protection to obtain leniency in federal court sentencing: what is the brouhaha all about?

The guidelines controlling the sentencing of organizations provide for the reduction in an entity's culpability score for self-reporting, cooperation, and acceptance of responsibility. What an organization must do in order to receive the reduction in culpability score changed dramatically in 2004 when additional language was added to Application Note 12 of the U.S. Sentencing Guidelines Manual Section 8C2.5(g) stating that "waiver of the attorney-client privilege and of work product protections is not a prerequisite to a reduction. ... However, in some circumstances waiver of the attorney-client privilege and of work product protections may be required in order to satisfy the requirements of cooperation." Following months of hearings and public comment, the United States Sentencing Commission reversed its position on whether a sentencing court should consider an organization's waiver of the attorney-client privilege and/or of the attorney work product protection in evaluating the organization's "cooperation" as a sentencing factor by proposing to retract the language added by the 2004 amendments. Although that proposal has become effective, it is yet to be determined what the response of the three branches of government will be on the issue of privilege waivers in the context of federal criminal law. This Article gives readers an overview of the development of the use of privilege waivers by organizations seeking credit for cooperation at the time of sentencing for federal crimes, the reaction of both corporations and their lawyers to the waiver issue, and the events leading up to the Commission's change of position.     

Exploring the flexibilities in TRIPS: lessons from India's pharmaceutical patent law

This article examines the extent to which the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) permits countries to utilize two key flexibilities, i.e. the exclusion of new forms of known drugs from patent protection and local working requirements to facilitate access to affordable medicines and foster domestic pharmaceutical innovation. It examines how India has implemented and recently utilized these two key flexibilities and concludes with the view that other developing countries can equally follow the Indian model.     

Access to medicine and the dangers of patent linkage: lessons from Bayer Corp v. Union of India

In February 2010, the Delhi High Court delivered its decision in Bayer Corp v Union of India in which Bayer had appealed against an August 2009 decision of the same court. Both decisions prevented Bayer from introducing the concept of patent linkage into India's drug regulatory regime. Bayer appealed to the Indian Supreme Court, the highest court in India, which agreed on 2 March 2010 to hear the appeal. Given that India is regarded as a global pharmaceutical manufacturer of generic medications, how its judiciary and government perceive their international obligations has a significant impact on the global access to medicines regime. In rejecting the application of patent linkage, the case provides an opportunity for India to further acknowledge its international human rights obligations.     

TRIPS下药品专利权与公共健康权的冲突和平衡

随着发达国家拥有的药品专利越来越集中,发展中国家因为得不到有效的药品而所遭受的危及公共健康权的疾病越来越多的情况下,TRIPS中的药品专利保护和公共健康权冲突加剧。本文以利益平衡为方法,论述了TRIPS利益保护的失衡以及如何采取措施使其平衡,从而达到有效保护公共健康权的目的。     

THE SOCIAL CONTEXT OF GUIDELINES CIRCUMVENTION: THE CASE OF FEDERAL DISTRICT COURTS*

Recent scholarship on criminal punishments increasingly highlights the importance of courtroom social contexts. Combining recent data from the U.S. Sentencing Commission (FY1997–2000) with aggregate data on federal districts, the current study examines interdistrict variations in the application of downward departures from the federal sentencing guidelines. Findings indicate that substantial variation exists in the probability of both prosecutor‐initiated substantial assistance departures and judge‐initiated downward departures. This variation is accounted for, in part, by organizational court contexts, such as caseload pressures, and by environmental considerations, such as the racial composition of the district. Additional evidence suggests that individual trial penalties and race disparities are conditioned by aggregate court contexts. Drawing on interviews with federal justice personnel, this article concludes with a discussion of future directions for research on federal guidelines departures. Part of the glory of the federal system…is that you've got this one big organization, but it can be molded to different needs…
‐ An assistant U.S. attorney ‐     

Patent first, ask questions later: morality and biotechnology in patent law

This Article explores the U.S. "patent first, ask questions later" approach to determining what subject matter should receive patent protection. Under this approach, the U.S. Patent and Trademark Office (USPTO or the Agency) issues patents on "anything under the sun made by man," and to the extent a patent's subject matter is sufficiently controversial, Congress acts retrospectively in assessing whether patents should issue on such interventions. This practice has important ramifications for morally controversial biotechnology patents specifically, and for American society generally. For many years a judicially created "moral utility" doctrine served as a type of gatekeeper of patent subject matter eligibility. The doctrine allowed both the USTPO and courts to deny patents on morally controversial subject matter under the fiction that such inventions were not "useful." The gate, however, is currently untended. A combination of the demise of the moral utility doctrine, along with expansive judicial interpretations of the scope of patent-eligible subject matter, has resulted in virtually no basis on which the USTPO or courts can deny patent protection to morally controversial, but otherwise patentable, subject matter. This is so despite position statements by the Agency to the contrary. Biotechnology is an area in which many morally controversial inventions are generated. Congress has been in react-mode following the issuance of a stream of morally controversial biotech patents, including patents on transgenic animals, surgical methods, and methods of cloning humans. With no statutory limits on patent eligibility, and with myriad concerns complicating congressional action following a patent's issuance, it is not Congress, the representative of the people, determining patent eligibility. Instead, it is patent applicants, scientific inventors, who are deciding matters of high public policy through the contents of the applications they file with the USTPO. This Article explores how the United States has come to be in this position, exposes latent problems with the "patent first" approach, and considers the benefits and disadvantages of the "ask questions first, patents later" approaches employed by some other countries. The Article concludes that granting patents on morally controversial biotech subject matter and then asking whether such inventions should be patentable is bad policy for the United States and its patent system, and posits workable, proactive ways for Congress to successfully guard the patent-eligibility gate.     

Limitations on the ability to negotiate justice: attorney perspectives on guilt,innocence, and legal advice in the current plea system

In the American criminal justice system the vast majority of criminal convictions occur as the result of guilty pleas, often made as a result of plea bargains, rather than jury trials. The incentives offered in exchange for guilty pleas mean that both innocent and guilty defendants plead guilty. We investigate the role of attorneys in this context, through interviews with criminal defense attorneys. We examine defense attorney perspectives on the extent to which innocent defendants are (and should be) pleading guilty in the current legal framework and investigate their views of their own role in this complex system. We also use a hypothetical case to probe the ways in which defense attorneys consider guilt or innocence when providing advice on pleas. Results indicate that attorney advice is influenced by guilt or innocence, but also that attorneys are limited in the extent to which they can negotiate justice for their clients in a system in which uncertainty and large discrepancies between outcomes of guilty pleas and conviction at trial can make it a sensible option to plead guilty even when innocent. Results also suggest conflicting opinions over the role of the attorney in the plea-bargaining process.     

Litigation Public Relations: The Lawyers' Duty to Balance News Coverage of Their Clients

As the 20th century began its final decade, litigation public relations was more rigorously condemned than condoned. By the end of the decade, the proliferation of the practice and the failure of the bar and bench to forbid it had made the criticism virtually moot. This article considers whether there is a basis for making the right to practice litigation public relations an obligation to do so. The article concludes that the right properly belongs to clients and not their attorneys, and finds a basis in contract and malpractice law for requiring attorneys to tend to their clients' interests in the court of public opinion as zealously as they do in courts of law.     

The software patent debate

Legal context. This article has practical application for thoseworking in the patent field, particularly with regards to thefiling of software patent applications. Key points. The article provides a detailed explanation of thestate of the art with regards to the legal protection of software,and describes the latest legal developments in the area, includingthe failed Directive on Computer Implemented Inventions andsome recent cases that may shed more light on some of the technicalissues involved in the area of software. The paper also exploressome of the arguments put forward by those in favour and opposedto software patents, in order to ascertain their validity. Practical significance. Existing case law may provide help tosolve the problem of patentability, but it might also be a goodidea to resurrect the idea that there should be a sui-generissoftware right.     

Court finds software patent wilfully infringed but refuses to enjoin the infringement

In the wake of the US Supreme Court's recent decision in eBayv MercExchange, a Texas district court has refused to enjoinMicrosoft's ongoing patent infringement, holding that no presumptionof irreparable injury should be given to the patentee even whenthe patent is upheld by a jury and is found to be wilfully infringed.