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Paving the Path to Accurately Predicting Legal Outcomes: A Comment on Professor Chien's Predicting Patent Litigation
90 Texas L. Rev. See Also 97 (2012)
January 17, 2012
Professors Kesan, Schwartz, and Sichelman respond to Professor Chien's model for predicting patent litigation, namely that certain after-acquired characteristics can help predict the onset of litigation. However, they identify certain weaknesses in the model, including that its dataset is limited to 1990 patents, and the sample size is small. They also question her policy recommendations given these weaknesses and propose areas of further inquiry. They seek a more precise definition of data about the patent owner, additional categorization of reexamination data, and research into the timing of transfer.
On Predicting Patent Litigation
90 Texas L. Rev. See Also 75 (2012)
January 10, 2012
Professor Petherbridge focuses on the claim that a model, identified in Professor Chien's article, can be used to predict whether a patent is likely to be asserted against an innovation. Using assumptions generous to the model, Professor Petherbridge generates a test that improves the probability of accurately assessing whether a patent will be litigated. He also identifies a number of practical problems with Professor Chien's model, including that the model captures false positives that render implementation of the model burdensome. Professor Petherbridge next asks whether there is a "lurking variable" that can better explain the model's results and whether the data generated by the model is practically useful. While Professor Petherbridge identifies these misgivings with Professor Chien's article, he notes that the article has identified certain acquired characteristics that may make predicting patent litigation an easier task.
Cybersecurity: Toward a Meaningful Policy Framework
90 Texas L. Rev. See Also 87 (2012)
January 10, 2012
Professor Shane responds to the framework for cybersecurity protections developed in Mr. Thompson's note. For reasons of practicality and comprehensiveness, Professor Shane argues that this framework is insufficient, and he identifies current issues that suggest larger problems that confront the cybersecurity enterprise. Professor Shane notes that the current cybersecurity climate is more serious than suggested by Mr. Thompson, with criminal enterprises becoming increasingly sophisticated and damaging to networks. This climate is also characterized by an absence of effective policy caused by overlapping bureaucracies, conflict between the military and private sectors, private control of networks, and a lack of governmental understanding of the problem.
Professor Shane concludes by identifying his proposal for a national commission to consider public needs and technical expertise in formulating an approach to cybersecurity.
Of Geese, Ribbons, and Creative Destruction: Moral Rights and Its Consequences
90 Texas L. Rev. See Also 63
December 30, 2011
Professor Bird responds to Ms. Lindsey Mills’s Note, Moral Rights: Well-Intentioned Protection and its Unintended Consequences, applauding her reasoned criticisms of moral rights, particularly the right of integrity, but noting some misgivings based on her discussions of a Canadian moral rights case and artistic destruction. Professor Bird concludes with an appeal to pragmatism in light of "artistic doomsday rhetoric" against moral rights protections in American law.
Not Like an Egyptian: Cybersecurity and the Internet Kill Switch Debate
90 Texas L. Rev. 465 (2011)
December 26, 2011
In this Note, Mr. Karson Thompson explores the vulnerability of America’s internet networks and the various proposals that have been made to solve the cybersecurity problem. Thompson explores the history of the Internet—from its inception as ARPANET to its current status—and the major security issues that plague it. He then discusses the role played in maintaining internet security by both the executive and legislative branches of government and proposes a new framework—one that takes power away from the executive as a means of ensuring a stable and transparent cybersecurity policy. Thompson concludes that the existing framework is an ineffective way of ensuring the security of the Internet, and recent events in Egypt should provide an impetus for reform.
Predicting Patent Litigation
90 Texas L. Rev. 283 (2011)
December 26, 2011
In this article, Professor Colleen Chien examines if, and to what extent, a patent’s acquired characteristics can be used to determine whether that patent is likely to end up in litigation. Although only around 1% of patents are ever litigated, patent lawsuits are disruptive and costly. Furthermore, their unpredictability makes patent litigation a practically uninsurable risk, causing companies to expend valuable resources accumulating patents that they believe might be asserted against them in the hope of preventing future litigation. To determine whether a patent’s acquired characteristics—those qualities that a patent develops after its issuance—can be used to enhance the predictability of patent litigation, Chien examines the relationship between eventual litigation and several acquired characteristics: changes in ownership, continued investment in the patent by the owner, collateralization, and citation to the patent.
Finding that litigated patents have markedly different acquired characteristics than unlitigated patents along all dimensions studied, and that these characteristics develop prior to litigation, Chien argues that acquired characteristics can be used to develop models that will enhance the predictability of patent litigation. She also asserts that, by highlighting the relationship between a patent owner’s identity and the likelihood of patent litigation, her findings argue in favor of reforming the patent-notice system to provide better information regarding patent ownership and transfer status in order to enhance the predictability of patent litigation.
Moral Rights: Well-Intentioned Protection and Its Unintended Consequences
90 Texas L. Rev. 443 (2011)
December 26, 2011
Lindsey A. Mills analyzes the issues and implications surrounding Congress's enactment of the Visual Artists Rights Act (VARA) in 1990, which, inter alia, provides moral rights protection to creators of artistic work. Although Mills recognizes certain social benefits associated with the protection of moral rights, particularly the incentives to promote artistic creation and society's right to preserve irreplaceable works of art, she argues that such a law, by taking away ownership rights that purchasers of artwork would otherwise have, diminishes the economic value of the artwork in question and further, to the extent that artistic expression is deemed desirable, harms society as a whole. After weighing these interests against each other, she concludes that moral rights protection has no place in the United States, let alone as part of the Copyright Act.
Substituting Substantive for Procedural Review of Guidance Documents
90 Texas L. Rev. 331 (2011)
December 26, 2011
In this Article, Professor Seidenfeld looks at issues concerning how federal agencies issue interpretive rules and policies and how courts respond to such documents. Seidenfeld looks at how scholarship has focused on procedural impediments to the issuance of guidance documents. While he concludes that those who favor giving agencies more leeway to use them have the better argument, this argument is incomplete. While a number of scholars have attempted to transcend the debate and have suggested solutions to agency abuse that do not depend on courts finding defects in agency procedures, Professor Seidenfeld argues that these solutions are also imperfect.
Instead, Seidenfeld proposes to shift the debate from one of procedural requirements to one of substantive review, concluding that this approach preserves agency flexibility and encourages agencies to still solicit outside input.
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