EU update

This is the latest edition of Baker & McKenzie’s column on developments in EU law relating to IP, IT and telecommunications. This article summarises recent developments that are considered important for practitioners, students and academics in a wide range of information technology, e-commerce, telecommunications and intellectual property areas. It cannot be exhaustive but intends to address the important points. This is a hard copy reference guide, but links to outside web sites are included where possible. No responsibility is assumed for the accuracy of information contained in these links.     

Diversity of dental patterns: application on different ages using the Brazilian National Oral Health Survey

Methods of individual identification using human remains are widely used in forensic anthropology; however, there are few studies that use statistical methods in order to obtain a correct definition of parameters. The objectives of the study were to verify the diversity of dental patterns in the Brazilian population and analyse its application on different ages. Data from the Brazilian National Oral Health Survey were used to verify the presence and absence of dental treatment among 35,613 individuals of several age groups: 15-19, 35-44 and 65-74. Information referring to every dental element was described: higid (H), decayed (D), filled (F), missing (M) and prosthesis (P). Coincidences that were observed in pairs of homologous teeth were analysed according to clinical situation, gender and age. Ordinary findings (presented in more than 10% of pairs) and extraordinary ones (presented in less than 10% of pairs) were described. Total and conditional diversity estimates were performed. Among adolescents, H were the most frequent teeth, and the first molar teeth were the ones presenting less frequency of H. Among adults, the frequency of M teeth among females ranged from 15.17% to 71.59%, and among males they ranged from 9.00% to 87.20%. Among the elderly, M teeth were observed in the largest frequency, and anterior teeth presented fewer losses than posterior ones. M was the condition that most coincided with both sides in the elderly. In adults, some pairs of teeth presented H, but mostly pairs of teeth presented as M. Among adolescents, there was more concordance of the H component. Among male and female adolescents, we observed extraordinary findings in DMFP dental conditions in most of the teeth. Among adults, the less frequent dental condition was P, which was found in several teeth. The extraordinary findings among elderly male teeth were codes H, D, F and P; among females, they were H, D, F and P codes. The high prevalence of healthy teeth in adolescents and a high rate of edentulism in the elderly interfered with the analysis performed. However, when an estimation of diversity that corrects those distortions was used, all of the groups presented satisfactory results that were homogeneous in the performed analysis.     

Imaging electrostatic fingerprints with implications for a forensic timeline

The electrical charge deposited by contact electrification due to a finger touching a thin insulating surface is imaged using an electric field microscopy system. It is based on an ultrahigh impedance electric potential sensor used as a non-contact raster scanning probe to measure surface charge density with a spatial resolution of up to 5 μm. Preliminary results are presented which yield two principle findings. First, they indicate that the spatial resolution of the fingerprint image is sufficient for identification purposes. Secondly, that the decay of the surface charge may be considered as a candidate method for the dating or sequencing of these electrical charge fingerprints. The decay of surface charge with time is well defined, largely material dependent, and may take many days. This intrinsic decay rate for the material may be quantified using the charge imaging system described in this paper and a known test charge. The measurement technique described is non-destructive, may be repeated without degradation of the sample, and does not preclude the subsequent use of other techniques such as DNA analysis or conventional latent fingerprint development.     

LSD and 9,10-dihydro-LSD Analyses in Street Drug Blotter Samples via Easy Ambient Sonic-Spray Ionization MassSpectrometry (EASI-MS)

Normally, the identification of the LSD drug is performed by forensic laboratories, using the Ehrlich spot test. However, this is a nonspecific analysis. Additionally, the Brazilian Federal Police has identified the presence of a new compound in seized blotters: 9,10-dihydro-LSD, an uncontrolled substance. In this work, easy ambient sonic-spray ionization mass spectrometry in the positive ion mode, EASI(+)-MS, was used to characterize LSD and 9,10-dihydro-LSD compositions directly from the surface of blotters. The presence of LSD in the seized blotter samples were also confirmed via high-performance liquid chromatography with ultraviolet detector. In a set of 41 blotters analyzed by EASI(+)-MS, 28 showed positive results for LSD, seven for 9,10-dihydro-LSD, and another six samples showed negative results for both LSD and 9,10-dihydro-LSD. The combination of thin layer chromatography with EASI-MS also demonstrated to be a relatively simple and powerful screening tool for forensic analysis of street drugs.     

Negotiating authority: a comparative study of reform in medical training regimes

Recently the medical profession has faced increased outside pressure to reform postgraduate medical training programs to better equip young doctors for changing health care needs and public expectations. In this article we explore the impact of reform on professional self-governance by conducting a comparative historical-institutional analysis of postgraduate medical training reform in the United Kingdom and the Netherlands. In both countries the medical training regime has shifted from professional self-regulation to coregulation. Yet there are notable differences in each country that cannot be explained solely by diverging institutional contexts. They also result from the strategic actions by the actors involved. Based on an assessment of the recent literature on institutional transformation, this article shows how strategic actions set negotiating authority processes into motion, producing new and sometimes surprising institutional arrangements that can have profound effects on the distribution and allocation of authority in the medical training regime. It stresses the need to study the interactions among political context, the properties of institutions, and negotiating authority processes, as they are crucially important to understanding institutional transformation.     

Tests of one Brazilian facial reconstruction method using three soft tissue depth sets and familiar assessors

Facial reconstruction is a method that seeks to recreate a person's facial appearance from his/her skull. This technique can be the last resource used in a forensic investigation, when identification techniques such as DNA analysis, dental records, fingerprints and radiographic comparison cannot be used to identify a body or skeletal remains. To perform facial reconstruction, the data of facial soft tissue thickness are necessary. Scientific literature has described differences in the thickness of facial soft tissue between ethnic groups. There are different databases of soft tissue thickness published in the scientific literature. There are no literature records of facial reconstruction works carried out with data of soft tissues obtained from samples of Brazilian subjects. There are also no reports of digital forensic facial reconstruction performed in Brazil. There are two databases of soft tissue thickness published for the Brazilian population: one obtained from measurements performed in fresh cadavers (fresh cadavers' pattern), and another from measurements using magnetic resonance imaging (Magnetic Resonance pattern). This study aims to perform three different characterized digital forensic facial reconstructions (with hair, eyelashes and eyebrows) of a Brazilian subject (based on an international pattern and two Brazilian patterns for soft facial tissue thickness), and evaluate the digital forensic facial reconstructions comparing them to photos of the individual and other nine subjects. The DICOM data of the Computed Tomography (CT) donated by a volunteer were converted into stereolitography (STL) files and used for the creation of the digital facial reconstructions. Once the three reconstructions were performed, they were compared to photographs of the subject who had the face reconstructed and nine other subjects. Thirty examiners participated in this recognition process. The target subject was recognized by 26.67% of the examiners in the reconstruction performed with the Brazilian Magnetic Resonance Pattern, 23.33% in the reconstruction performed with the Brazilian Fresh Cadavers Pattern and 20.00% in the reconstruction performed with the International Pattern, in which the target-subject was the most recognized subject in the first two patterns. The rate of correct recognitions of the target subject indicate that the digital forensic facial reconstruction, conducted with parameters used in this study, may be a useful tool.     

Public Reason Between Ethics and Law

Rawls says that public reason is the reason of the citizens of a democratic state and takes the Supreme Court in the USA as the exemplar of public reason. It differs from non public reason, which is used e.g., in universities and academic institutions. Rawls contrasts with Kant, which opposes the public reason of the scholar??or the philosopher??, who speaks before the world, to the private reason of state or church officials. The later, once they accept an authority, cannot think by themselves (selbst denken). A closer examination shows that Rawls is not so far from Kant as it seems, because he takes the constitutional judges not as they are, but as they should be. However Rawls still apparently refuses Kant??s unity of reason. Further investigation of the relations between ethical reason, democratic reason and legal reason is needed. Democratic reason is tantamount both to public reason and to legal reason in a modern constitutional state. It is a requirement of ethics but still not identical with ethical reason, since it is possible to accept democratic reason and to argue against it from an ethical point of view. There is just one good way of reasoning, in spite of the constraints that the sources of law and the rules of procedure impose on legal reasoning, compared with ethics. Such constraints are based on the democratic principle, which is again based on ethical reason, which at last both grounds and limits the constraints that law imposes on reason.     

Restrictions of the sale of pharmaceuticals and medical devices such as contact lenses over the internet and the free movement of goods

In the light of new case law development, this article examines whether national restrictions on the online sale of pharmaceuticals and medical devices such as contact lenses are consistent either with EU secondary law, either with Article 34 TFEU that prohibits measures having equivalent effect to quantitative restrictions on imports. In particular, this article focuses on an analysis of two judgments on this important issue delivered by the Court of Justice of the European Union in 2003 and 2010, namely the Deutscher Apothekerverband decision and the Ker-Optika decision.