Threat Of Litigation Research Articles

Patent Trolls and Technology Diffusion

Patent-assertion entities, sometimes known as `patent trolls,' do not manufacture goods themselves but profit from licensing agreements that they often enforce via the threat of litigation. This paper explores empirically how litigation by a patent troll affected the sales of medical imaging technology. It finds evidence that relative to similar products, made by the same firm, but not covered by the patent, imaging software sales declined by one-third. This was not due to a suppression in underlying demand by hospitals but instead is linked to a lack of incremental product innovation during the period of litigation.

The threat of litigation: Private obstetric care – quo vadis?

Because of changes in litigation frequency and estimated claims value, indemnity costs for South African obstetricians have increased sharply and may soon become virtually unaffordable. There is the real possibility of very serious public health consequences and it is important that the matter is addressed as a matter of urgency. Resolution is by no means limited to obstetric care, but it is important that obstetricians become actively involved in the debate. While the alternatives suggested may be considered unpalatable they are raised to open and stimulate debate – they are by no means prescriptive. Clearly the debate has to extend beyond the obstetric or indeed the medical community and urgent and serious consideration will have to be given to tort reform.

Fair and equal assessment in postgraduate training? A future research agenda

Assessment of GP training has historically shown differences in performance according to ethnicty and sex.1 A recent meta-analysis2 shows that ethnic differences in attainment are a consistent feature of medical education in the UK, ‘being present across medical schools, exam types, and undergraduate and postgraduate assessments, and have persisted for at least the past three decades’. The most substantial differences are found for doctors taking postgraduate examinations as international medical graduates, who frequently under-perform compared to their locally-trained peers.3 Although these differences have been repeatedly found, we lack a satisfactory explanation that can guide what may be done to address the issues. In this editorial, we propose an agenda to guide future research and to encourage debate within the broader scientific and academic community. Using an interdisciplinary approach, we draw on expert inputs from a variety of academic and stakeholder experiences to summarise key issues surrounding fairness in assessment. These opinions were gathered at a 1-day seminar at the University of Cambridge. There exists understandable concern amongs key stakeholders regarding the threat of litigation when research findings expose unexplained significant group differences in assessment outcomes. We argue that postgraduate assessment methodologies are not inherently ‘biased’. The reasons for observed group differences are far more complex, and in need of far more systematic research, leading to more open dialogue between all stakeholders. The use of innovative research designs …

The Effect of Threat of Litigation on Forensic Pathologist Diagnostic Decision Making

Recent litigation involving medical examiners has caused concern over certifying deaths. We administered a survey of 716 medical examiners regarding the effects of the threat of litigation. Two hundred twenty-two medical examiners responded (31%). Of those who responded, approximately 13.5% admitted to having modified their diagnostic findings due to threat of litigation, and approximately 32.5% stated these considerations would affect their decisions in the future. Physicians who indicated they had or would modify their diagnoses expressed more concern over the possibility of litigation. Chiefs of services were less likely than staff members to indicate changing diagnoses. Practitioners whose jurisdictions included rural areas were significantly more likely to indicate that litigation considerations would affect their diagnoses in the future, although this was not true with those who had already modified their diagnoses. No correlation was found with elected versus appointed positions, accreditation status, sex, race, geographic location, or board certification. Although very few medical examiners have actually been sued because of their diagnoses, a demonstrated threat of litigation has a substantial effect on diagnostic decision making.

Unintended Consequences of Health Care Legislation

Unintended consequences of health care legislation threaten the financial and social well-being of the United States. Examples of major legislation resulting in unintended and unforeseen consequences include the Social Security Amendments Acts of 1989 and 1993 (the Stark laws), the Balanced Budget Act of 1997, and the Social Security Amendments Act of 1965 (Medicare and Medicaid). Each of these has had unintended financial and social outcomes. Spending for Medicare and Medicaid now equals an unsustainable 23% of the federal budget. Major reasons for unintended consequences include failure to appreciate the complexity of the issues, the open-ended nature of medical advances with attendant increases in costs, the inducement of change in behaviors in response to legislation, and the moral hazard of people spending other people's money. Actions that should be considered to avoid unintended consequences include more involvement of health professionals in the design of legislation, the inclusion of triggers to target review of legislatively defined programs, and the setting of time limits for sun-setting legislation. The ACR has played an important advocacy role and should continue to offer input to legislators, federal policymakers, and other stakeholders. Many opportunities exist to address the current financial situation by reducing the amount of unnecessary care delivered. Both major US political parties need to find the political will to compromise to chart the way forward. Some level of sacrifice is likely to be necessary from patients and providers and other stakeholders.

Resolving conflicting interests: software patents versus open source

The issue of granting software patents in the United States has a created a rift between the open source community and patent owners. One of the contributing factors causing conflict between the open source community and patent owners is the read granting of software patent applications by the United States Patent and Trademark Office (USPTO). The increasing volume of software patent applications received by the USPTO has strained the patent system and consequently software patent applications are granted without close examination of whether they meet the requirements for a valid patent. The conflict between patent owners and the open source community is exacerbated when alleged patent infringement occurs for software products that circulate in the technology industry that should be open and free to use within the open source community. Subsequently, this issue is complicated when the alleged patent infringement occurs. The threat of litigation is a financial burden that is too great to bear by small and medium enterprises and by developers who unknowingly use software protected by a patent, which results in paying license fees and/royalties to avoid costly litigation. The granting of software patents without scrutiny of prior art by the USPTO is restricting innovation within the information technology sector and hindering developers, programmers, and technology innovators from creating and innovating new and emerging technologies. Further, the granting of software patents without close examination by patent examiners restricts and contradicts the ethos and philosophy behind a grant of patent.

Ethical Concerns and Career Satisfaction in Obstetrics and Gynecology: A Review of Recent Findings From the Collaborative Ambulatory Research Network

Obstetricians-gynecologists (ob-gyns) are frequently confronted with situations that have ethical implications (e.g., whether to accept gifts or samples from drug companies or disclosing medical errors to patients). Additionally, various factors, including specific job-related tasks, costs, and benefits, may impact ob-gyns' career satisfaction. Ethical concerns and career satisfaction can play a role in the quality of women's health care. This article summarizes the studies published between 2005 and 2009 by the Research Department of the American College of Obstetricians and Gynecologists, which encompass ethical concerns regarding interactions with pharmaceutical representatives and patient safety/medical error reporting, as well as ob-gyn career satisfaction. Additionally, a brief discussion regarding ethical concerns in the ob-gyn field, in general, highlights key topics for the last 30 years. Ethical dilemmas continue to be of concern for ob-gyns. Familiarity with guidelines on appropriate interactions with industry is associated with lower percentages of potentially problematic relationships with pharmaceutical industries. Physicians report that the expense of patient safety initiatives is one of the top barriers for improving patient safety, followed by fear of liability. Overall, respondents reported being satisfied with their careers. However, half of the respondents reported that they were extremely concerned about the impact of professional liability costs on the duration of their careers. Increased familiarity with guidelines may lead to a decreased ob-gyn reliance on pharmaceutical representatives and free samples, whereas specific and practical tools may help them implement patient safety techniques. The easing of malpractice insurance and threat of litigation may enhance career satisfaction among ob-gyns. This article will discuss related findings in recent years. Obstetricians & Gynecologists and Family Physicians. After the completing the CME activity, physicians should be better able to analyze how interactions with pharmaceutical industry may pose ethical dilemmas, examine current barriers to implementing patient safety initiatives, and evaluate the factors that influence career satisfaction among obstetrician-gynecologists.

Endless Pursuit: Capturing Technology at the Intersection of the First Amendment and Attorney Advertising

Among state bars, the Florida Bar has been a pioneer in regulating attorney advertising, especially with respect to new technology. The Bar’s efforts have been years in the making, but only until relatively recently did constitutional considerations percolate to the fore as the Bar faced litigation threats, and federal appellate courts issued opinions expounding on attorneys’ First Amendment rights to advertise. Now, with the release of a proposed new code of advertising rules that coincides with the release of the American Bar Association 20/20 Commission’s proposal to amend the attorney advertising and communication model rules, questions have arisen anew as to whether the Florida Bar has drafted rules that will prove relevant and effective in vindicating the public interest while simultaneously respecting attorneys’ constitutionally protected speech. Drawing from the Florida Bar’s experience, this Article suggests that bar associations and the attorneys subject to their jurisdiction fare better if constitutional principles play a prominent role early on in regulators’ efforts to respond to the public-policy challenges that accompany new innovations in society. Regardless of the ultimate constitutional validity of the Florida Bar’s proposed rules, the process that it took to achieve them is a process that other bars may want to learn from and avoid.

Does Shareholder Litigation Affect Financial Reporting Choices?

This paper investigates the effects on financial reporting practices of a court ruling that made it easier for public corporations to defend against class-action litigation filed under securities laws. I find an increase in restatements and discretionary revenues for firms affected by the ruling relative to unaffected firms. Further, within affected firms, these results were concentrated among those most likely to face litigation. I also find a decline in debt covenant violations and an increase in investment levels. These results suggest that the threat of shareholder litigation can discipline managerial reporting practices.

Environmental and Social Risks: Defensive National Environmental Policy Act in the US Forest Service

Abstract The National Environmental Policy Act (NEPA) and its accompanying regulations provide a spectrum of alternative analytical pathways for federal agencies proposing major actions that might significantly impact the human environment. Although guidance from the President's Council on Environmental Quality suggests the decision to develop an environmental impact statement (EIS), which requires the most rigorous level of analysis, should be based on the likelihood of significant environmental impacts, findings from an Internet survey with US Forest Service project leaders suggest that the decision may more commonly be based on process-related risks, including the threat of litigation, perceived defensibility in court, and the level of public and political interest in the agency's proposed action. An analysis of judicial decisions in NEPA-related litigation reveals that EISs do not appear to be more defensible than environmental assessments in the courts, suggesting that current decisionmaking about NEPA documentation may be misguided, leading to unnecessary project expenditures and delays.

Is Conditional Conservatism Higher for Overseas-Listed Chinese Companies on the Hong-Kong Stock Exchange?

This paper examines the conditional accounting conservatism (Basu, 1997) of Chinese companies that are overseas listed in Hong Kong as H-shares. Due to cultural, historical and political factors, H-share companies are expected to report no more conservatively than their Chinese counterparts that are not overseas listed. The institutional setting of H-share companies, with concentrated state ownership structures, bureaucratic management incentives and political interference, are expected to impede the supply of conservative reporting. Hong Kong-listed H-share companies are exposed to the threat of litigation, competitive market forces and a strict regulatory regime in Hong Kong. However, despite these factors, we expect them to report less conservatively than native Hong Kong companies. This is because of the dominance of local institutional incentives that are culturally based. Consistent with our predictions, we find that H-share companies report aggressively, whereas matched Chinese companies that are not overseas listed report neutrally. In addition, H-share companies are less conservative than native Hong Kong companies. Our evidence suggests that the location of listing has little effect on conditional conservatism because overseas-listed Chinese companies retain a significant exposure to their domestic environment.

Honey v. Vinegar: Testing Compliance-Gaining Theories in the Context of Freedom of Information Laws

Freedom of information laws are useful to the extent that they are followed. This study, based on compliance-gaining theories, employs two field experiments to examine the effect of persuasion tactics and litigation threats on agency adherence to public records laws. In Study 1, a journalist requested use-of-force reports from all police agencies in a state, mailing agencies either friendly or threatening letters, randomly assigned. In Study 2, a journalist requested superintendent contracts from school districts, mailing agencies randomly assigned versions of friendly, neutral or threatening letters. In both experiments the threatening letter resulted in slightly higher response rates, lower copy fees and faster response times, however, the friendly letter resulted in more helpful behavior from agencies. The article concludes by discussing implications for journalists, compliance-gaining theory in a legal realm, and freedom of information.

Managerial Reporting, Overoptimism, and Litigation Risk

We examine how the threat of litigation affects an entrepreneur’s reporting behavior when the entrepreneur (i) can misrepresent his privately observed information, (ii) pays legal damages out of his own pocket, and (iii) is optimistic about the firm’s prospects relative to investors. We find higher expected legal penalties imposed on the culpable entrepreneur do not always cause the entrepreneur to be more cautious but instead can increase misreporting. We highlight how this relation depends crucially on the extent of entrepreneurial overoptimism, legal frictions, and the internal control environment.

Antiepileptic drugs and suicidality: finding ways forward

More than 2 years after the US Food and Drug Administration (FDA) fi rst alerted health-care providers to “an increased risk of suicidal thoughts and behaviours (suicidality)” in patients taking antiepileptic drugs (AEDs), the debate is still simmering over the agency’s decision to add warnings to the entire class of medications. But the process has forced the epilepsy community to focus on the factors that contribute to psychiatric disorders in patients with epilepsy, and the need to detect and treat these devastating comorbidities. The FDA’s safety alert in January, 2008, was based on an analysis of suicidality data from 199 randomised, placebo-controlled trials of 11 AEDs. “There was tremendous consistency across the drugs”, says Russell Katz, director of the Division of Neurology Products at the FDA. “For eight out of the 11 drugs, there was what we would call a numerical increase” in the incidence of suicidality. “And the overall estimate of suicidality, when we included all 11 drugs, was statistically signifi cant.” Katz explains that “because these drugs act in so many diff erent ways pharmacologically, that argued strongly for applying the fi nding to all drugs in the class”. At a public meeting held in July, 2008, a committee of independent advisers voted against the addition of a black-box warning—the FDA’s strongest warning—to AEDs amid fears that this might discourage patients from taking their medication and that the threat of litigation might lead to a fall in the prescribing of these drugs. Rochelle Caplan, a paediatric neuropsychiatrist at the University of California, Los Angeles, USA, who was a member of the advisory panel, explains that “the risks of not taking the medication, including death, are much higher” in patients with epilepsy than the risk of suicidality that might be associated with AEDs. In December, 2008, on the advice of the panel, the FDA announced that a less stringent warning would be added to the labelling of all drugs with an antiepilepsy claim, and that the manufacturers of AEDs would develop Medication Guides to explain the risk of suicidality to patients and their families.

PCL-R Psychopathy: Threats to Sue, Peer Review, and Potential Implications for Science and Law. A Commentary

Disputes among academicians are not uncommon. They are usually played out in peer review journals in the form of point-and-counterpoint articles, or rebuttals and rejoinders. Recently however, a threat of litigation was issued against the authors of an article and the editor of the scientific journal which had accepted that article for publication following peer review. In this commentary we review legal commentary on litigation (and threats of litigation) involving academic disputes and literature regarding the values that underpin the scientific peer review process. We conclude that the use of threats of litigation to suppress the publication of articles accepted for publication in scientific journals strike at the heart of the peer review process, may have a chilling effect on the values at the core of academic freedom, and may potentially impede the scientific testing of various theories, models and products.

Selling patents to companies in Taiwan

Summary Holders of unused patents consider selling patents to companies around the world is a sensible way of creating value from them. In Taiwan, an increasing number of companies are also actively seeking and acquiring intellectual property assets to enter new product markets with protection and to be prepared against any threat of patent litigation. This situation creates opportunities for foreign patent sellers. The Industrial Technology Research Institute (ITRI), a government‐sponsored research organization in Taiwan, has been actively assisting foreign companies in selling their patents to Taiwanese companies since 2004. This research presents the current status of Taiwan's patent market and offers insights into buyers’ needs for foreign patent sellers who are interested in selling patents in Taiwan. Key suggestions include selling patents in the right technical areas, providing supporting materials to highlight patent value, providing accurate encumbrance information, and using a local broker to overcome the obstacles of understanding and navigating Taiwan's market.

Protecting Nominative Fair Use, Parody, and Other Speech-Interests by Reforming the Inconsistent Exemptions from Trademark Liability

Federal trademark law exempts certain communicative uses of a trademark from liability so that the public can freely use a trademark to comment on the markowner or to describe its products. These exemptions for "speech-interests" are badly flawed because their scope is inconsistent between infringement and dilution law, and because the cost and difficulty of claiming their protection varies significantly from court to court. Many speech-interests remain vulnerable to the chilling threat of litigation even though they are "protected" by current law. This Note proposes a simple statutory reform that will remedy this inconsistency by creating an express safe harbor for speech-interests in the Lanham Act. This reform will give full effect to the policy behind these exemptions: that if they apply, the public ought to be able to freely use a trademark in discourse. This reform also furthers the Lanham Act's purpose of establishing a uniform system of nationwide trademark protection by endorsing the simple principle that a given use of a trademark should be either consistently protected from or vulnerable to suit in every court and under every cause of action.

Progressive Lawyering in Politically Depressing Times: Can New Models for Institutional Self-Reform Achieve More Effective Structural Change?

This Essay examines both the promise and the drawbacks of new models of achieving institutional self-reform through voluntary, self-designed processes, such as those undertaken in a case study Susan Sturm presents of the National Science Foundation's (NSF's) ADVANCE initiative, a program designed to encourage universities to make progress in eliminating the severe under-representation of women in academic positions in the sciences. The promise of such models is multi-faceted. Most important, they offer paths for bringing about institutional reform without extensive management from legislatures or courts. They bring together affected interests to find win-win solutions. Law supports the achievement of consensus through voluntary negotiation by presenting a normative background and, if necessary, a background litigation threat, but voluntary approaches allow the parties to avoid the gamesmanship and finger pointing involved in litigation and instead devote their efforts to finding creative solutions for the future. Such approaches are also more likely to generate the buy-in of those who must implement reforms; without such buy-in, lasting change is unlikely to occur. As to the drawbacks of voluntary, self-designed processes, I argue that these may in many ways mirror their benefits. The central problem on which I focus concerns the vagueness of such models with respect to how to secure the participation of traditional outsiders who are the supposed beneficiaries of institutional change processes that take place through the efforts of actors operating within institutions. This vagueness leads to a host of unanswered questions: The central goal of the project Strum studies is to make institutions more open, but who decides to whom they should be opened, what kind of openness is appropriate, and how to balance openness with other institutional values? How much change is enough? I also focus on Sturm's discussion of lawyers' potential in organizational catalyst roles under such alternative models, as further developed in a budding literature that promotes alternative paradigms for lawyers' involvement in institutional change processes. Drawing on an extensive legal ethics literature, I query the proper limits to the de-linking of lawyers' work from the representation of the self-articulated interests of actual clients or client groups.

Post-occupancy evaluation and sustainability: a review

Post-occupancy evaluation of buildings has been developing as a distinctive discipline for over 40 years, but has been traditionally more concerned with energy, social and architectural concerns in relation to the user rather than other issues of sustainability such as transportation, waste and resource use. This paper outlines the challenges of implementing post-occupancy evaluation in relation to rapidly developing UK government policy on climate change and other sustainability issues. It reviews developing methodologies and the progress to date in relation to key building typologies: offices, healthcare, education and housing. The methods are discussed in terms of their qualitative and quantitative aspects, as well as the degree of detail actually necessary to evaluate building performance effectively. A diagnostic approach that avoids any unnecessary and costly monitoring is advocated. Various barriers preventing the widespread implementation of post-occupancy evaluation are identified, including lack of legislation, threats of litigation, cost and the perception that the work of the design and building team is finished at the point of handover. The review concludes that it is not desirable to have one single method for evaluation, as each typology requires its own set of criteria. While a lack of education in professional programmes is an underlying barrier to implementation, there are positive signs that routine feedback is beginning to take hold in policy development and design office practice.

PharmD or Needs Based Education: Which Comes First?

PharmD or Needs Based Education: Which Comes First?