Washington and Lee law professor Christopher Seaman presented a current work-in-progress, Property vs. Liability Rules in Patent Litigation Post-eBay: An Empirical Study, at the Fifth Annual Patent Conference (PatCon5) at the University of Kansas School of Law on April 11-12, 2015. The Patent Conference is the largest annual conference for patent scholars in the world.
From the Abstract:
In this paper, I empirically assess the impact of the Supreme Court’s decision in eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), on grants of permanent injunctions or, in the alternative, ongoing royalty awards, in patent litigation.
Prior to eBay, the Federal Circuit established a “general rule” granting injunctive relief after entry of a final judgment that the asserted patent was valid and infringed. Id. at 391. Overcoming this presumption required a significant showing of public harm that outweighed the patentee’s irreparable harm. In practice, however, this rarely occurred, and district courts routinely granted injunctions after a finding of infringement.
In eBay, the Supreme Court unanimously rejected the Federal Circuit’s “general rule” in favor of injunctive relief, instead holding that trial courts must apply “traditional equitable principles” in the form of a four-factor test. Id. at 391-94. However, in concurring opinions, Chief Justice Roberts and Justice Kennedy offered seemingly divergent assessments regarding eBay’s likely impact in patent litigation. Chief Justice Roberts suggested that trial courts would continue to grant injunctive relief after a finding of infringement in “the vast majority of patent cases,” id. at 395, whereas Justice Kennedy asserted that injunctive relief may be inappropriate in situations that differed from traditional patent litigation, such as suits by non-practicing entities (NPEs) and cases involving business method patents. Id. at 396.
To test these predictions, as well as several other hypotheses about injunctive relief post-eBay, I am empirically studying all district court decisions where the patentee requested a permanent injunction following a finding of infringement (excluding uncontested injunctions) from the date of the eBay decision through the end of 2013. Each case is being coded for a number of variables that may have affected district courts’ decisions regarding whether to grant or deny injunctive relief, including the technological field of the asserted patent(s), whether the parties are competitors in a product market, and whether the accused infringer was found to have willfully infringed the patent. A summary of the results and data analysis from this empirical study will be presented at the conference.
Washington and Lee law professor Christopher Seaman has just published a new article in the Virginia Law Review. The article titled “The Case Against Federalizing Trade Secrecy” appears in volume 101 published in April 2015.
From the abstract:
Trade secrecy is unique among the major intellectual property (IP) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors — including legislators, academics, and organizations representing IP attorneys and owners — have proposed creating a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime governing IP rights.
This Article engages in the first systematic critique of the claim that federalizing trade secrecy is normatively desirable. Ultimately, it concludes that there are multiple reasons for trade secrecy to remain primarily the province of state law, including preservation of states’ ability to engage in limited experimentation regarding the scope of trade secret protection and federalization’s potential negative impact on the disclosure of patent-eligible inventions. Finally, it proposes an alternative approach — a modest expansion of federal courts’ jurisdiction over state law trade secret claims — that can help address the issue of trade secret theft without requiring outright federalization.
Washington and Lee Law professor Timothy MacDonnell’s 2002 article, “Military Commissions and Courts-Martial: A Brief Discussion of the Constitutional and Jurisdictional Distinctions Between the Two Courts” was republished in the 500th anniversary issue of The Army Lawyer. The 500th anniversary issue was published in January 2015. The editors acknowledge Professor MacDonnell’s work as “cited more frequently than any other appearing in this publication written by a judge advocate.”
On Tuesday, March 31, 2015, Professor Victoria Shannon presented her article, Judging Third-Party Funding, 63 UCLA L. Rev __ (2016) (forthcoming), at William & Mary Law School as part of the Junior Faculty Exchange Program. Professor Shannon’s article provides guidance to judges and arbitrators regarding how to reinterpret the Federal Rules of Civil Procedure, evidentiary privileges, and international arbitration procedures in light of third-party funding. By interpreting the existing rules as suggested in this Article, judges and arbitrators will be able to gain a better sense of the prevalence, structures, and impact of third-party funding and its effects (if any) on dispute resolution procedures. Over time, these observations will reveal the true systemic impact of third-party funding and contribute to developing robust third-party funding regulations. The current draft is available here.
Read more about Professor Shannon’s scholarship here.
Washington and Lee law professor Timothy McDonnell published a new article in the Virginia Journal of Criminal Law. The article, “Justice Scalia’s Fourth Amendment: Text, Context, Clarity, and Occasional Faint-Hearted Originalism”, appears in volume three, issue one of the journal.
From the abstract:
Since joining the United States Supreme Court in 1986, Justice Scalia has been a prominent voice on the Fourth Amendment, having written twenty majority opinions, twelve concurrences, and six dissents on the topic. Under his pen, the Court has altered its test for determining when the Fourth Amendment should apply; provided a vision to address technology’s encroachment on privacy; and articulated the standard for determining whether government officials are entitled to qualified immunity in civil suits involving alleged Fourth Amendment violations. In most of Justice Scalia’s opinions, he has championed an originalist/textualist theory of constitutional interpretation. Based on that theory, he has advocated that the text and context of the Fourth Amendment should govern how the Court interprets most questions of search and seizure law. His Fourth Amendment opinions have also included an emphasis on clear, bright-line rules that can be applied broadly to Fourth Amendment questions. However, there are Fourth Amendment opinions in which Justice Scalia has strayed from his originalist/textualist commitments, particularly in the areas of the special needs doctrine and qualified immunity. This article asserts that Justice Scalia’s non-originalist approach in these spheres threatens the cohesiveness of his Fourth Amendment jurisprudence, and could, if not corrected, unbalance the interpretation of the Fourth Amendment in favor of law enforcement interests.
Washington and Lee law professor and director of the Tax Clinic was recently interviewed by John S. Keirnan of WalletHub.com. Professor Drumbl provides expert advise to accompany an article titled “What to Do if You Can’t Pay Your Taxes.” In the interview she discusses avoiding penalties for failing to file returns and the advantages of an installment plan over tapping other sources of funds to pay a tax liability.
Washington and Lee law professor Susan Franck’s new paper, Conflating Politics and Development? Examining Investment Treaty Arbitration Outcomes, currently appears on SSRN top ten lists in five different subject areas: Dispute Resolution, Empirical Studies, International Arbitration, International Courts & Tribunals and Treaties.
The paper is forthcoming in volume 55 of the Virginia Journal of International Law.
From the abstract:
International dispute settlement is an area of ongoing evaluation and tension within the international political economy. As states continue their negotiations for the Trans-Pacific Partnership (TPP) and the Transatlantic Trade and Investment Partnership (TTIP), the efficacy of international arbitration as a method of dispute settlement remains controversial. Whereas some sing its praises as a method of protecting private property interests against improper government interference, others decry investment treaty arbitration (ITA) as biased against states. The literature has thus far not disentangled how politics and development contribute to investment dispute outcomes. In an effort to control for the effect of internal state politics, this Article offers the first analysis of ITA outcomes, focusing on respondent states’ development status while simultaneously controlling for states’ democracy levels. Using a dataset of 159 final ITA awards from prior to January 2012, the Article conducts quantitative analyses of outcomes as a function of raw wins and losses, amounts awarded, and relative investor success. Initially, when evaluating outcomes based on a respondent state’s membership in the Organisation for Economic Cooperation and Development (OECD) or a state’s score on the UN Development Programme (UNDP) Human Development Index, it was not possible to identify a reliable link to outcomes. Only defining a respondent’s development status using a World Bank classification generated reliable differences for Upper-Middle income states, and only for two measures of outcome — namely raw wins and amounts awarded. Using the World Bank measure, there was no statistically significant relationship with relative investor success. None of these analyses, however, controlled for the level of internal state democracy to identify how democracy levels, which can reflect good governance infrastructure, might contribute to outcomes. After controlling for the effect of a state’s internal democracy levels, twelve analyses were unable to identify a reliable link with ITA outcomes and development status irrespective of how development status was defined. While the Article cannot conclusively exclude the possibility of systemic bias in ITA against the developing world, it provides additional evidence suggesting the potential absence of such bias or the importance of alternative explanatory variables. The results also suggest that focusing on development status alone may be unwarranted, and future research should explore internal levels of democracy or other indicators of good governance, which could be associated with the decreased risk of a state loss. The Article concludes that normative choices focused solely on respondent state development status miss an opportunity to craft normative solutions tailored to redress tangible problems. By focusing on variables that demonstrably contribute to variance in ITA outcomes, stakeholders could construct more appropriate international dispute settlement processes in a time of international economic transition.