The Digest Staff is thrilled to announce that the newest volume of the Harvard Journal of Law and Technology, volume 23, is now available online, featuring:
Timothy Holbrook, “Equivalency and Patent Law’s Possession Paradox”
This paper explores the paradox of the doctrine of equivalents — that the patentee is afforded protection for that which she did not possess — and offers two possible means of reconciling it: first, that patentees should only be protected under the doctrine of equivalents for changes in technology that arise from outside their field of technology (the status quo); and second, that patentees should be protected by the doctrine of equivalents if the patent’s disclosure would enable the asserted equivalent at the time of infringement, thus allowing the patent’s disclosure to grow over time. This paper advocates that the second approach offers a better fit with the doctrine as traditionally understood.
Oren Bar-Gill & Rebecca Stone, “Mobile Misperceptions”
This Article studies three central design features of cell-phone service contracts, arguing that rational-choice explanations of these contractual features fall short and that they are better understood as a rational market response to the imperfect rationality of cell-phone users. After verifying the theoretical claims empirically, this Article finds that the identified consumer mistakes and providers’ responses to these mistakes generate substantial welfare costs. As a solution, this Article proposes mandated disclosure of use-pattern information, including average-use and, more importantly, individual-use information that, by directly targeting the identified consumer mistakes, can enhance efficiency and increase consumer surplus in the cellular service market.
Natalie Ram, “Assigning Rights and Protecting Interests”
This Article proposes a new model for adjudicating disputes between individuals providing tissue for research and researchers accessing that tissue. Drawing on intellectual property doctrines, this Article advocates the creation of “informational property,” a property right to one’s own genetic information. Guided by a framework of the interests of tissue providers, researchers, and society in the control and use of human tissue in research, this Article advocates an informational property approach modeled on Creative Commons licensing and reinforced by enhanced privacy protections in tort.
Kevin Werbach, “Higher Standards: Regulation in the Network Age”
This Article proposes that the Federal Communications Commission (FCC) remake itself as a standards organization, making its mission to catalyze the adoption of open standards that promote its regulatory objectives. This Article then explains how a standards-based approach offers a better solution to the network issues faced by the FCC, such as network management practices of broadband access providers and unlicensed wireless devices adjacent to broadcast television frequencies.
Jon Darrow, [“The Neglected Dimension of Patent Law's PHOSITA Standard”] (Student Note)
Modern invention bears little resemblance to inventive activities of the nineteenth century. Today, invention typically involves teams of highly-trained specialists provided with funding and equipment, who devote months or years to developing an invention. As a result, when judges look at a patent from the perspective of a “person having ordinary skill in the art,” the “art” they consider is the art of innovation. This is a shift from early patent jurisprudence, however, which considered patents from the perspective of practitioners. The change has resulted in the withholding of patents on deserving inventions. By restoring the traditional meaning to the word “art,” patent law can appropriately motivate socially valuable inventions that are currently being neglected.
Chris Johnson, [“Leveraging Technology to Deliver Legal Services”] (Student Note)
This paper examines technological solutions and tech-enabled business models for the delivery of legal services to those with limited incomes and specific needs. In particular, it considers several existing websites as case studies, and then proceeds to discuss the potential future commoditization of legal services and the coming transformation in the legal profession.
Sarah Sorscher, [“A Longer Monopoly For Biologics?: Considering the Implications of Data Exclusivity as a Tool for Innovation Policy”] (Student Note)
Analyzing the Access to Life Saving Medicines Act, currently under consideration by Congress, explaining how it will create a regulatory pathway for follow-on biologics that will likely include an extended period of data exclusivity for innovator brands and exploring the conflicts between and overlap of patent protection and data exclusivity protection, focusing especially on the impact of these new protections on the market for follow-on biologics.