US Case Law Research Articles

Three Faces of Innovation Competition: Choosing the Framework for Horizontal Merger Assessment

Abstract This article discusses the assessment of horizontal mergers and harm to innovation when there is innovation competition. The goal is to establish a methodology for selecting the appropriate analytical framework for each situation, outlining mechanisms for recognizing innovation competition, defining relevant markets, evaluating the competitive significance of firms, identifying suitable theories of harm, and gathering pertinent evidence for each scenario. We review the literature on Competition Policy and on Economics of Innovation and take examples from the US and European case law. We also briefly discuss the strategic management literature to provide insights for the assessment. Considering post-merger reductions on innovation incentives as harm to innovation, we find differences of traditional merger procedure adequacy and challenges to build evidence, considering three faces of innovation, including possible combinations of these faces within a same merger case: (i) continuous innovation efforts in the product market, (ii) ongoing innovation efforts for developing new products, and (iii) future innovation efforts. In instances where the conventional approach to mergers falls short, exploring a capabilities-based assessment is recommended. Given the gaps found in the existing literature, we provide insights to the analysis as steps towards an agenda of capabilities-based merger assessment.

The Requirement of Fair Negotiation (Gebot des fairen Verhandelns) and the Principle of Undue Influence in German and US Employment Law

In its decisions of 24 February 2022 and 7 February 2019, the German Federal Labour Court (BAG) ruled that German labour courts should take into account whether a breach of the requirement of fair negotiation had occurred in assessing the validity of termination agreements. The Court thereby aimed to improve the protection of employees who have been improperly pressured by their employer into concluding a termination agreement. Arguably, the principle of undue influence in US contract law fulfils a comparable function. This article analyses the BAG decision then addresses the question of the comparability of the legal concepts. Since the concept and scope of undue influence are not easy to grasp, the definition in US case law and the practical application of the legal concept are analysed. Based on this analysis, the article considers whether a US civil court would have decided the BAG case in the same way. The article concludes that the principles in German and American law lead to similar outcomes. Requirement of Fair Negotiation, Undue Influence, German Labour Court, US Contract Law, US Civil Courts

PHYSICIAN-ASSISTED SUICIDE AS A CONSTITUTIONAL RIGHT: GLUCKSBERG REVISITED

“Glucksberg“ is celebrating its 25th anniversary. In 1997, the Supreme Court held that a right to (physician) assisted suicide was not protected by the Due Process Clause of the Fourteenth Amendment. However, the Court was wrong – back then and today. This is not only because of US case-law and US states legislation, but also because of international developments all pointing towards legalizing assisted suicide.

Unitary system of patent protection as an element of innovation policy of the European Union

The article analyzes the process of establishing a unitary system of patent protection in the European Union as an alternative to national and regional systems and its importance for enhancing the innovation potential and economic development of the EU. It examines the preconditions for the transition from national patents to regional (and subsequently unitary) patents, which are based on the intention of the EU Member States to overcome the territorial principle of patent rights by extending the patent owner’s exclusive rights beyond the territorial borders of one state.It is noted that the transformation of the economy into an innovative one, in which a key role is assigned to intellectual property rights (as a precondition for innovation), has actualized the issue of effective intellectual property legal protection, in particular, concerning patent rights. Since 1997, the European Commission has been highlighting the importance of patents as one of the tools available for protecting innovation and the need to reform the European patent system to increase Europe’s innovation potential and competitiveness. Subsequent decisions of the EU Council were taken to fulfill this task, resulting in the introduction of a unitary system, which includes the European Patent with Unitary Effect (the Unitary Patent) and the Unified Patent Court, as of June 1, 2023. As a result, inventors can obtain unitary patent protection based on the Unitary Patent in all EU Member States participating in the enhanced cooperation mechanism.It is concluded that the unitary patent protection system extends the territoriality principle beyond the national borders of the State within the EU borders, but does not destroy the basic principles of intellectual property rights. In contrast, the article examines the US case law, which demonstrates its own approaches to understanding the principle of territoriality and the presumption against extraterritoriality of patent rights, allowing in certain cases the US patent holder to extend its monopoly to foreign markets.

Liabilities of virtual world developers as intermediary service providers: the case of Second Life

Through a review of the EU and the US regulation and case law, this article discusses the extent to which virtual world developers can be held liable as intermediary service providers with regard to potentially infringing user-created and user-uploaded virtual items. Among many virtual worlds, this study focuses on Second Life, developed by Linden, as it allows user-created and uploaded contents, and offers services such as the Marketplace and LindeX exchange, which enable users and the developer to financially benefit from these contents. The article argues that, beyond mere game developers, virtual world developers such as Linden are intermediary service providers and may be liable with regards to user-created and uploaded content on their services. Within the scope of the EU regime, Linden is too active to benefit from the E-Commerce Directive’s safe harbors. However, it should not be considered as an online content-sharing service provider within the scope of the DSM Directive because Second Life does not compete with other online content services for the same audiences. According to the comprehensive protection brought by the DMCA in the US, Linden can benefit from the safe harbors if it takes the necessary steps after becoming aware of specific infringing activity and fulfills the procedural measures listed in the act.

Patent Settlements: An Overview of US, EU and National Case Law

Patent Settlements: An Overview of US, EU and National Case Law

Reverse-Payment Settlements Under EU and US Patent Law: Convergence in Remedies

Abstract This paper investigates the existing case law on reverse-payment settlements from a comparative perspective, focusing on the US and EU panoramas. In this respect, we will illustrate the emergence of patent-related proxies in the anticompetitive assessment, which contaminate the antitrust benchmarks in a problematic way, with the effect of hampering patent law and policy. Primarily we will delve into seminal decisions in the EU framework. In this regard we will observe how the Court of Justice of the European Union (CJEU) shifted from a quick-look approach towards a case-by-case antitrust analysis of patent settlements, progressively neglecting, but not eliminating, patent-related presumptions. Then we will look at the fragmented US case law scenario. We will explore the various benchmarks deployed to challenge these agreements, highlighting the differences and similarities with the EU approaches. It will be concluded that a strong IP-law-based perspective about these agreements has arisen in both legal systems. This perspective orientates the anticompetitive assessment through quasi-absolute presumptions, hindering the consistency of competition law remedies and misrecognising the cruciality of patent law and policy. Therefore, we will try to outline that the intermingling of criteria adopted to scrutinise reverse-payment settlements and similar over-exclusionary strategies is pernicious under both antitrust and patent law.

The Study on the Defense of Laches in Copyright Infringement Claims─Based on the US Case Law

The Study on the Defense of Laches in Copyright Infringement Claims─Based on the US Case Law

Evaluation of the Russian trade levy under the constitutionality test articulated by US case law

Protecting the constitution from violations continues to be a major challenge worldwide. The main concern is to cure constitutional noncompliance and to afford taxpayers an adequate opportunity to challenge tax’s constitutionality. This article gives an overview of the US standards for determining when a state tax is valid under the Constitution. After discussing applicability of the US standards to the Russian taxes the author evaluates the Russian trade levy under the four-prong test developed by the US Supreme Court and raises constitutional challenges to the Russian income tax scheme. The trade levy as a part of this scheme results in unconstitutional discriminatory treatment of regional residents and non-residents. Such an uncommon analysis permits to find tax discrimination and economic Balkanisation not only in Russia, but also in other Federations throughout the world. These issues are of great importance in the field of comparative tax law. In response to the problem of discrimination, the author provides solutions based on the applicable Russian law principles and global practice of avoiding multiple taxation.

Proportionality Defenses in FRAND Cases - A Comparative Assessment of the Revised German Patent Injunction Rules and US Case Law

Proportionality Defenses in FRAND Cases - A Comparative Assessment of the Revised German Patent Injunction Rules and US Case Law

The evolution and consequences of digital rights management in relation to online music streaming

AbstractStreaming services now provide the dominant way in which music is distributed and consumed online. Digital rights management (DRM) lies at the heart of this trend and has evolved alongside a movement from copy-based to streaming-based consumption. This shift poses a number of new and unique issues. Music streaming services have changed the nature of the product offered, with musical content becoming de-bundled and reduced to a series of permissions covered by DRM and associated licences, leaving users trapped in a permission-based system. This may create tension with copyright law principles regarding personal ownership and exhaustion of rights in relation to secondary markets, but through analysing relevant US and European case law it can be demonstrated that there is little, if any, legal opportunity for digital secondary markets to emerge. There are also further specific consequences which may affect artists relating to musical diversity and the composition of popular music and, also, consequences regarding the changing nature of the Internet itself. In this context copyright remains centrally important, but only in establishing the initial proprietary rights that enable subsequent DRM and licence-based online exploitation, indicative of a re-establishment of record industry power that is now allied to streaming platforms.

The Seasons They Go Round and Round

When an aviation accident occurs, courts in the United States are frequently presented with a claim that an aircraft or one of its component parts should be deemed ‘defective’. In considering this type of claim, defendants almost always argue that the product met FAA certification standards and was deemed safe by that agency. Several recent US decisions as well as the fatal accidents involving the 737MAX have once again focused attention on this issue. This article addresses how some US courts have used circular reasoning in analysing the meaning of the federal statute and regulatory regime which govern product certification and aviation safety generally. The first section of this article examines the initial decision to address this issue and the flaws in the analysis that caused the court to reject this defence. The next section examines a subsequent decision which pointed out the foregoing flaws and held that the entire field of aviation safety was preempted. The following sections address how the first court recognized the flaw in its initial rationale while another panel of the court which first recognized that flaw issued a decision which hearkened back to the rationale of the initial court’s decision. Although Supreme Court review of the latter was requested, the FAA urged that Court to wait until the 737Max issues played out before addressing this subject and that is what the Supreme Court agreed to do. While final resolution of this issue will require a Supreme Court determination, a review of the decisions issued to date provides useful context for analysing how this issue will ultimately be resolved. It is the author’s belief that federal standards will ultimately be recognized to control and that FAA certification will either conclusively establish that the product is safe or create a presumption regarding that fact. aviation product preemption, aviation product certification, FAA aircraft certification, aviation safety, US case law

Methods of ensuring the principle of adversary of the parties during the pre-trial stage of criminal process

The article is devoted to the methods of ensuring the principle of adversary of the parties during the pre-trial stage of the criminal process. To offer the most optimal method of ensuring adversary of the parties during the pre-trial stage for legislators of the Republic of Kazakhstan, legislative practice of France, Germany and the USA were studied. While studying the criminal process of these countries the French model of the adversarial nature of criminal proceedings is recognised as not acceptable due to the conduct of preliminary investigation in this country by forensic investigators. In the Republic of Kazakhstan pre-judicial investigations are conducted by special bodies of inquiry and preliminary investigation. As a result of the research, the author gives preference to the US case law, which provides the right for a lawyer to not provide the evidence collected by him to the investigative authorities, in order to demonstrate them at the trial.

Methods of ensuring the principle of adversary of the parties during the pre-trial stage of the criminal process

The article is devoted to the methods of ensuring the principle of adversary of the parties during the pre-trial stage of the criminal process. To offer the most optimal method of ensuring adversary of the parties during the pre-trial stage for legislators of the Republic of Kazakhstan, legislative practice of France, Germany and the USA were studied. While studying the criminal process of these countries the French model of the adversarial nature of criminal proceedings is recognised as not acceptable due to the conduct of preliminary investigation in this country by forensic investigators. In the Republic of Kazakhstan pre-judicial investigations are conducted by special bodies of inquiry and preliminary investigation. As a result of the research, the author gives preference to the US case law, which provides the right for a lawyer to not provide the evidence collected by him to the investigative authorities, in order to demonstrate them at the trial.

From the PHOSITA to the MOSITA: Will “Secondary Considerations” Save Pharmaceutical Patents from Artificial Intelligence?

Artificial intelligence systems are being increasingly employed in pharmaceutical R&D to develop new drugs and medical treatments. In such a scenario, the patentability of new pharmaceutical inventions seems more and more problematic, given that the computational power of AI increases the likelihood that a new chemical composition is deemed to be obvious. In this article I argue that with the advent of AI-generated inventions both EU and US patent law cannot rely exclusively on the traditional standard of the “person having ordinary skill in the art” to evaluate the non-obviousness condition of patentability. However, I also maintain that a legislative reform is not necessary. Rather, judges should start to more strongly consider the so-called “secondary considerations” of non-obviousness that have been intermittently and inconsistently applied both in US and EU case law.

경제활성화 목적의 토지수용과 ‘공공의 사용’ 요건에 관한 법적 논의 - 미국의 판례법을 중심으로 -

미국 수정헌법 제5조는 ‘정당한 법 절차에 의하지 않고, 생명, 자유 및 재산을 빼앗기지 않는다. 정당한 배상 없이 사유재산을 공공의 용도로 징수할 수 없다.’고 규정하고 있다. 연방 수정헌법 제14조도 ‘주 정부가 정당한 법 절차에 의한 사유재산을 취득하고, 재산권은 공민에게 평등하게 법으로 보호한다’고 규정하고 있다. 그 밖에 개별 주(州)의 헌법도 똑같이 규정하고 있다. 통설에 의하면, 미국에서 사유재산을 수용하기 위해서는 세 가지 조건을 충족시켜야 한다고 한다. 즉, 정당한 법률절차(due process of law), 공평한 보상(just compensation) 및 공공의 사용(public use)이다.<BR> 한편 새로운 주가 성립하기 전에 연방정부는 이미 토지의 권리를 현지 거주민에게 부여했다. 즉, 미국과 같은 연방제도 하에서 연방과 주 모두 주권을 가진 정부이면서도 동시에 토지에 대한 절대적 권리나 이익을 소유하는 것은 아니다.<BR> 현재 수용에 관한 헌법조항은 휴면기에 있는 것 같지만 여전히 법원과 학계에 주목을 받고 있는 중이다. 미국에서는 19세기 말이 되면서 제2차 산업혁명과 도시화의 발전에 따라 정부의 수용 활동이 점점 빈번하게 등장하였다. 연방도 주정부도 수용을 통해 경제를 촉진하고, 대규모 경제시설 건설 활동도 더욱 활발해지고 있었다. 하지만 반대자도 있었다. 그들은 대규모 수용이 입법권 남용으로 내몰고 있다고 하였기 때문에 재산권을 강제로 이전하는 행위를 엄격히 심사할 필요가 있다고 강력히 주장하고 나섰다. 그러나 법원에 그 심사권이 있는지에 대해서는 오랫동안 논쟁이 계속되고 있었다. 미국의 법학자들은 여러 차례 17세기 대륙의 자연법학자, 예를 들면 Hugo Grotius와 Samuel Pufendorf의 고전적 저작에서 답을 구하고 있었지만, ‘공공의 용도’란 무엇인가라는 문제에 대해서는 결론을 내지 못했다. 수용권 남용을 막기 위해, 법원과 법학자는 수용권의 행사에 대해 ‘공공의 목적’이라는 제한을 가하면서도 ‘공공의 목적’의 개념을 어떻게 설정하는가에 대해 논쟁중이다. 문제는 오늘날까지 통일적인 견해에 이르지 못하고 있다. 본고는 이와 같은 미국의 토지수용을 둘러싼 법적 논쟁에 대한 검토를 실시하였다.

2019 in Review: Some recent developments in US Case Law

A recent Supreme Court case, Helsin Helathcare S.A. v. Teva Pharm. VSA, Inc., and three recent Federal Circuit cases, Arthrex, Inc. v. Smith &amp; Newphew, Inc., Grunenthal GmbH v. Alkem Labs. Ltd, and Athena Diagnostics, Inc. v. Mayo Collaborative Servs., LLC will provide generic pharmaceutical manufacturers with greater clarity in devising litigation strategies.

From the PHOSITA to the MOSITA - Will 'Secondary Considerations' Save Pharmaceutical Patents From Artificial Intelligence?

Artificial intelligence systems are being increasingly employed in pharmaceutical R&D to develop new drugs and medical treatments. In such a scenario, the patentability of new pharmaceutical inventions seems more and more problematic, given that the computational power of AIs increases the likelihood that a new chemical composition is deemed to be obvious. In this article I argue that with the advent of AI- generated inventions both EU and US patent law cannot rely exclusively on the traditional standard of the “person having ordinary skill in the art” to evaluate the non-obviousness condition of patentability. However, I also maintain that a legislative reform is not necessary. Rather, the judges should start to more strongly consider the so-called “secondary considerations” of non-obviousness that have been intermittently and inconsistently applied both in US and EU case-law.

Is the Universal Declaration of Human Rights Customary International Law? Evidence from an Empirical Study of US Case Law

Paper presented at the 2019 Stanford International Junior Faculty Forum. This paper contributes to the conceptualization of the customary status of the UDHR by focusing on the use US federal courts have made of it (1949-2018). It provides one of the possible angles of inquiry, but it does not claim completeness. In performing an empirical study, it aims at supplementing, rather than replacing, legal theory on this issue.

SIDE EFFECTS OF DIETHYLSTILBESTROL (DES) FROM THE PERSPECTIVE OF TORT LAW

The aim of the article is to analyze the reasoning of the Supreme Court of California in Sindell v. Abbott Laboratories. Materials and methods: Materials of the study encompass US case law as well as case law of other countries concerning compensation of damage caused by defective drugs and other cases of uncertain causation. The survey is conducted within the framework of comparative law studies. In addition, elements of law and economics approach are also employed in the paper. Conclusions: Case of Sindell v. Abbott Laboratories has launched a new direction in discourse on causation in tort law and product liability. The mathematical elegance of the Court's theory is that net burden of liability borne by a particular drug manufacturer is equal to the amount of damage actually caused by its drug.