JTIP Blog: Five New Posts Published

By: Alessandra Fable, Jeanne Boyd, Elisabeth Bruckner, Angela Petkovic, and Shelby Yuan

Volume 20, Issue 3 now available

JTIP Blog: Legal Implications of Digital Economies in Gaming and E-Payments

By: Kathleen Denise Arteficio

JTIP Blog: DEAD OR ALIVE: ANALYZING THE IMPACT OF TRADEMARK RESIDUAL GOODWILL ON ENTREPRENEURSHIP IN FASHION

By: Rohun Reddy

Volume 20, Issue 2 now available

JTIP Blog: Collecting Student Athlete Biometric Data

By: Anthony Vitucci

JTIP Blog: Facial Recognition Technology in the Commercial Sector

By: Michael Willian

Volume 20, Issue 1 now available

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

By: Luke Shadley

Disclosing Machine Inputs and Outputs: The Vulnerability of Legal Technology in Civil Discovery

By: Concannon, Joshua | November 1, 2023

Smart technology has begun to infiltrate nearly every corner of society. While the legal profession managed to resist this intrusion relative to other industries for many years, it is now undeniable that machines frequently supplement lawyers and civil procedures such as discovery will need to adapt. As litigants, usually the well-resourced ones, increasingly utilize machine intelligence, concerns about accuracy and unfair advantage have sprung up on the other side of technology use. Information asymmetry is exacerbated when technology is accessible to only one party, and, consequently, curious litigants may seek discovery about the technology’s implementation in the context of the dispute. Thus, as law firms and corporate legal departments consider whether and how to integrate emerging technologies into their operations, it will be important to know their exposure to litigation. This paper provides suggestions for whether, and to what extent, parties should be able to obtain discovery about an opponent’s tools, including their machine inputs and outputs. After reviewing the discovery process broadly, this paper will walk through three of the most common and relevant technologies, including technology-assisted review in discovery productions, predictive analytics for forecasting outcomes, and document generation for creating legal documents. If a party demands to see the details behind the use of one of these technologies, should the court compel production? This paper offers several considerations for judges in exercising their discretion to answer this question.

Patented Brand Drugs are Essential Facilities and Regulatory Compacts

By: Hamilton, Clovia,Stokes, Gerald | November 1, 2023

The COVID-19 health pandemic highlighted the need for more readily affordable patented drugs. Brand drug companies argue that they need to recuperate their research and development (“R&D”), marketing and advertising expenses. The incentive to innovate also needs to be preserved. Drug companies are entitled to a profit and a return on their investment, just as afforded to utility monopolies. Intellectual property and human rights clash relative to access to patented drugs. We provide several proposed approaches to resolve this dilemma and conclude with an argument that patented drugs should be considered a public utility. A model based on the public utility approach has a great deal of merit as a model for setting prices for essential drugs and treatments. The price, however, setting should not be the province of back-room discussions between drug companies and insurers. Prices should be negotiated in public with full transparency just as electricity rates. Investor-owned utilities are profitable essential facilities that are of great benefit to consumers and provide reasonable and regular return on investment for their owners. This can happen for manufacturers of essential drugs as well.

Technology Specificity and Equitable Access to Pharmaceuticals

By: Santos Rutschman, Ana | November 1, 2023

Current models of production of pharmaceuticals, particularly those dependent on intellectual property (and adjacent) protections, often contribute to the highly asymmetrical and inequitable distribution of resulting outputs. These problems are especially acute when emerging pathogens cause transnational public health crises in which there is concurrent demand for the same medicines in both lower- and higher-income countries, with populations in the Global South getting very limited timely access, if any, to preventatives and life-saving medicines—even when an outbreak disproportionately affects populations in these very countries. This essay examines an under-theorized and under-explored way to help correct this historical and persisting deficit in distributive justice: it introduces and develops the concept of “technology specificity,” situating it in the context of the transfer of patented pharmaceutical products. As used here, technology specificity refers to a component-by-component evaluation of the pharmaceutical landscape surrounding products needed for pandemic and epidemic preparedness, with an emphasis on proprietary rights and logistical barriers to tech transfer. The essay further advocates for a more deliberate use of technology-specific strategies on part of policymakers before the onset of a pandemic or epidemic. This contrasts with the current practice of negotiating contractual terms when a public health crisis is already underway. The ex ante approach proposed here can help lessening many of the political economy hurdles that arise when policymakers in lower-income countries are forced to compete on unlevel playing fields with those in wealthier countries at the height of a pandemic or epidemic. In turn, this affords policymakers greater flexibility to negotiate equitable access provisions—thus ensuring that, when demand for a pharmaceutical or a particular component does arise, populations in lower-income regions are not left out.

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