Washington Journal of Law, Technology & Arts

Volume 10  | Winter 2015  | Number 3

The Anti-Clone Wars: Towards a Reinvigoration of the Doctrine of Patent Misuse and the Per Se Illegality of Anti-Cloning Provisions

Patrick Holvey
10 Wash. J.L. Tech. & Arts  153

4/14/2015

Intellectual Property

Patent misuse, a once valuable doctrine used to remove anticompetitive actions enabled by patent grants from the marketplace, has been relatively disfavored by the courts for some time. Recent licensing practices by certain major players within the high-technology marketplace, however, provide an excellent opportunity for the doctrine to be reinvigorated and applied. Apple, Inc., through its attempts to prevent competitors from “cloning” its products, has become an anticompetitive force that appears to have impermissibly leveraged its patent portfolio in order to extract contractual protections of non-patented subject matter through “anti-cloning” provisions, improperly broadening the scope of its patent grants. This Article argues that this improper broadening of the patent grant constrains competition in unpatented subject matter, harms competition, and should be considered by the courts to constitute per se patent misuse or, in the alternative, patent misuse under a rule of reason analysis. As a result, Apple’s patents that are tainted by the anti-cloning provision’s misuse should be held to be unenforceable at least as long as agreements that contain the offending provision are still in force.

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Standing Room Only: MadStad Engineering and the Potential to Challenge the Constitutionality of the America Invents Act’s “First-Inventor-to-File” Patenting System

Christopher J. Ferrell
10 Wash. J.L. Tech. & Arts  205

4/14/2015

Litigation

In 2011, the Leahy–Smith America Invents Act (AIA) was signed into law, bringing significant changes to the Patent Act of 1952. Arguably, the most substantial change was the demise of the “American approach” to patent law: the “first-to-invent” patent filing system. Congress, by enacting the AIA, changed America's patent system from “first-to-invent” to “first-inventor-to-file,” sparking controversy among patent scholars and practitioners, with some individuals arguing that this change was unconstitutional. Recently, the Federal Circuit faced an issue of first impression when an inventor challenged the constitutionality of the first-inventor-to-file provisions of the AIA, and by extension the AIA as a whole, under Article I, Section 8, Clause 8 of the United States Constitution in the case of MadStad Engineering, Inc. v. USPTO. While ruling against MadStad based on standing, and not on the constitutionality issue, the court gave some insight for a challenger to establish standing by showing a substantial risk of injury actually arising from the first-inventor-to-file provision of the AIA. From the MadStad ruling, it is clear that the arguments of the constitutionality of the AIA’s first-inventor-to-file provisions are far from settled.

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The Code-Based Interpretation of Authorization: An Incomplete Picture

Nicholas R. Ulrich
10 Wash. J.L. Tech. & Arts  221

4/14/2015

Constitutional & Regulatory

The definition of authorization under the Stored Communications Act raises questions about implied authorization in situations where someone fails to secure an email account properly. The few cases that have addressed this issue under the federal act or its state equivalents have not created a bright-line rule. Instead, the question of authorization has been highly fact-dependent. Two leading interpretive theories have emerged on the question of authorization: the code-based theory and the trespass theory. While the code-based interpretation of authorization seems pleasing because it appears to provide highly predictive outcomes, it fails in some circumstances. This failure is especially obvious when someone inadvertently and unintentionally gives someone else permanent access to an email account by, for instance, saving their username and password in the browser of a shared computer. Courts interpreting cases in this context implicitly reject the code-based interpretation of authorization, which would provide no remedy, in favor of the trespass theory. Ultimately, the code-based model does not provide enough flexibility to fit all situations in which the courts wish to provide a remedy. The best test, therefore, involves aspects of both theories.

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Radio Revolution: The Local Community Radio Act’s Expansion of Possibilities for Low-Power FM Stations

Jeffrey M. Echert
10 Wash. J.L. Tech. & Arts  237

4/14/2015

Constitutional & Regulatory

This Article explores the struggle to establish low-power FM radio stations on airwaves already crowded with full-power stations. Historically, urban markets have provided few opportunities for low-power stations due to third-adjacent channel protections—there are only so many frequencies available in a given city. The Local Community Radio Act of 2010 gives new stations an advantage in the debate by eroding these protections. In October of 2013, the FCC opened the application window for new low-power stations—only the second window since the inception of low-power FM in 2001. During the window, the FCC received 2,800 applications, including eighty-one from Washington State. In an industry dominated by only a few voices, community stations now have the chance to raise their own voices above the din. This Article also explores the technical and practical feasibility of removing second-adjacent channel protections. While such removal faces resistance from traditional broadcasters, the FCC has shown through its decisions that the prevailing trend is in favor of community radio.

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