JTIP Blog: Three New Posts Published

By: Kathleen Arteficio, Rohun Reddy, and Anthony Vitucci

Volume 20, Issue 1 now available

JTIP Blog: Facial Recognition Technology in the Commercial Sector

By: Michael Willian

JTIP Blog: Personal Privacy & Biometric Data in the COVID-19 Pandemic

By: Luke Shadley

Volume 19, Issue 4 now available

JTIP Blog: Patentability of AI-Generated Inventions in the U.S. and other jurisdictions

By: Jason Chen

JTIP Blog: Howey in the Axie-Era: Regulating NFTs in Gaming and Metaverse Economies

By: Rohun Reddy

Volume 19, Issue 3 now available

JTIP Blog: Who Are You: A Primer on Digital Identity

By: Henry Rittenberg

The First Amendment and Online Access to Information About Abortion: The Constitutional and Technological Problems with Censorship

By: Villasenor, John | November 30, 2022

To what extent could an abortion-restrictive state impede access to online information about abortion? After Dobbs, this question is no longer theoretical. This essay engages with this issue from both a legal and technological perspective, analyzing First Amendment jurisprudence as well as the technological implications of state-level online censorship. It concludes that the weight of Supreme Court precedent indicates that state attempts to censor information regarding out-of-state abortion services would violate the First Amendment. That said, the essay also recognizes that as Dobbs itself upended precedent, it is unclear what Supreme Court would do when ruling on questions regarding the extent of state power to limit access to information in this domain. The essay also considers the technological implications of state efforts to censor online access to information about abortion, concluding that these efforts would be mostly, though not completely, unsuccessful.

Copyright and Federalism: Why State Waiver of Sovereign Immunity is the Best Remedy for State Copyright Infringement

By: Ellis, Leroy J., V | November 30, 2022

When a photographer intentionally takes a picture of a subject, or a writer puts a story to paper, the resulting works are protected by copyright. That protection is bolstered after the authors register their works with the Copyright Office. All private parties, from individuals to corporations, can be sued for infringing on the work should they use it without pay or permission. However, what happens when the infringer is not a private party? What happens when the state or a state entity is the infringer? What happens when a public university decides to use a copyright owner’s work without pay or permission? Can the copyright owner seek damages from the university for infringement? If not, then how can a copyright owner recover damages for state infringement? Until recently, the answer was that copyright owners could obtain damages from the university for copyright infringement under the Copyright Remedies Clarification Act, 17 U.S.C. §511, but in Allen v. Cooper, the United States Supreme Court held the Act unconstitutional in part because there was not enough evidence of state infringement to support waiving sovereign immunity. Now the question has no clear answer. While some state cases have copyright owners attempting to obtain damages through alternative means, there does not seem to be an easy way for copyright owners to obtain monetary relief for state copyright infringement. National legislation could be proposed once again, but how well would that fair against the Court’s current precedent? Would it be better to ask the states to waive immunity themselves? Monetary remedies for wrongs should be available, even when the wrong is committed by the state or its entities. The issue is finding a way around sovereign immunity. Sometimes the way around sovereign immunity is by using federalism.

Rethinking Equitable Estoppel in Patent Law

By: Lustig, Joshua J | October 1, 2022

In almost every context, the Federal Circuit has used estoppel doctrines to provide protection to parties from some sort of injustice. Yet recently, with equitable estoppel, the Federal Circuit has decided to infuse concepts of Article III justiciability to justify limiting the doctrine as only applicable to issued patents. In doing so, the Federal Circuit has ignored the long history behind equitable estoppel in favor of a rule that is improperly rationalized by the Constitution. This note argues that Federal Circuit’s recent equitable estoppel jurisprudence is inconsistent with equity’s goal of fairness and presents a new theory of equitable estoppel — “inchoate estoppel” — which would create fairer outcomes for patentees and defendants alike.

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