Yale Journal of Law & Technology
Volume 10, 2007-2008 Spring Issue
Privacy and the New Virtualism
By Jonathon W. Penney
Jonathon W. Penney , Privacy and the New Virtualism , 10 Yale Journal of Law & Technology 194 (2008).
First generation cyberlaw scholars were deeply influenced by the uniqueness of cyberspace, and believed its technology and scope meant it could not be controlled by any government. Few still ascribe to this utopian vision. However, there is now a growing body of second generation cyberlaw scholarship that speaks not only to the differential character of cyberspace, but also analyzes legal norms within virtual spaces while drawing connections to our experience in real space. I call this the New Virtualism. Situated within this emerging scholarship, this Article offers a new approach to privacy in cyberspace by drawing on what Orin Kerr calls the internalist or virtualist perspective. The virtualist approach to privacy in cyberspace shifts the focus away from the concept of privacy itself, which has been over-theorized and over-categorized by privacy theorists, to analyzing and theorizing persons in cyberspace and how they ought to be understood. It focuses on virtual persons and the distinct privacy concerns they raise, and reconnects ideas about informational and data privacy to traditional normative justifications for privacy based on personhood. Adopting a virtualist approach to privacy in cyberspace has conceptual, normative, constitutional, and public policy benefits.
Biomedical Upstream Patenting and Scientific Research: The Case for Compulsory Licenses Bearing Reach-Through Royalties
By Richard Li-dar Wang
Richard Li-dar Wang, Biomedical Upstream Patenting and Scientific Research: The Case for Compulsory Licenses Bearing Reach-Through Royalties, 10 Yale Journal of Law & Technology 251 (2008).
In the wake of breakthroughs in biotechnology and prosperous development in the biotechnology industry, the field of biomedical upstream research has experienced a large increase in the number of patents granted. This Article concerns mainly the threat that the proliferation of upstream patents pose to biomedical research and commercialization, especially the danger posed by research tool patents. The propagation of research tool patents may impede access to those research routes that are most promising to scientists. These patents also create substantial burdens, including research delays and financial costs, for independent researchers seeking authorization for the use of research tools. There are two contending camps—the prospect theorists and the anticommons theorists—arguing over the influence of patents on biomedical upstream research. Although the anticommons theory is more sensible and coherent, the reality of biomedical science does not unfold as predicted by this theory. Empirical studies suggest that the reason for this disparity lies in the nature of biomedical research, as well as in the informal research exception that the scientific community has developed. However, even such empirical findings cannot convincingly negate all of the problems created by upstream patents, including blockages in downstream development and increasing delays and costs for follow-on research on the patented upstream inventions. In this article, I review proposals now put forward by scholars for eradicating these problems. Finding fault with most of the resolutions proffered thus far, I argue for a compulsory license system that charges reach-through royalties, which are measured by the contribution that patented research inputs make to the individual research. This is a method that can calibrate royalties to the actual value of these research inputs. With this proposal, I hope to bridge the gap between patentees and independent researchers so as to alleviate the problems that biomedical science suffers now.
Involuntary Endogenous RFID Compliance Monitoring as a Condition of Federal Supervised Release--Chips Ahoy?
By Isaac B. Rosenberg
Isaac B. Rosenberg, Involuntary Endogenous RFID Compliance Monitoring as a Condition of Federal Supervised Release--Chips Ahoy?, 10 Yale Journal of Law & Technology 331 (2008).
Among the many cutting edge technologies law enforcement agencies increasingly covet is radio frequency identification (“RFID”). Researchers predict RFID will become the most pervasive computer technology in history. Among the more extraordinary and controversial government uses of RFID—and the focus of this Paper—include implantation of subdermal RFID transmitters. Privacy concerns abound. Not surprisingly, critics and privacy advocates are wary of subdermal RFID implants, fearful that only a fine line separates relatively innocuous, voluntary implantation from arbitrary government-mandated implantation. But for involuntary implantation of RFID chips to take root, government implantation programs would have to start on the small scale, targeting the most unsavory and repugnant members of society: convicted sex offenders. Sex offenders are the foremost targets of our nation’s “punitive zeal.” Some states have moved to chemically castrating certain types of sex offenders, while others have considered implementing lifetime GPS monitoring. And, for the better part of two years, the chipping of convicted sex offenders has lingered in the minds of concerned citizens and government officials alike, mutually frustrated with the serious inadequacies of existing sex offender punishment and registration regimes. Some have even explicitly called for forced implantation of sex offenders. In addition, to some extent, involuntary chipping remains implicitly “on the table” even in those states where legislatures have banned involuntary implantation altogether. Recognizing that this is as much a political problem as it is a societal one, most agree that courts will have to rely on legislative sanction to have authority to order implanting of sex offenders. To date, there has been no federal legislation purporting to encourage or prohibit the use of tracking implants in anyone, let alone federally convicted sex offenders. This Paper analyzes how involuntary subdermal RFID could comply with existing federal sentencing laws, the Constitution, and public policy.
Perfect Happiness: Game Theory as a Tool for Enhancing Patent Quality
By Chris J. Katopis
Chris J. Katopis , Perfect Happiness: Game Theory as a Tool for Enhancing Patent Quality, 10 Yale Journal of Law & Technology 360 (2008).
Since its inception in 1790, the U.S. patent system has been inextricably linked to innovation, the dissemination of knowledge, and numerous other societal benefits. The adoption of a patent claiming system in 1836 has resulted in a series of historical trends, including: (1) the century-plus trend of yearly increases in applications, straining the agency beyond its capabilities; (2) a highly labor-intensive examination process; and, (3) the majority of patents issued have been valueless. Today the U.S. Patent and Trademark Office (“PTO”) is in a self-described workload crisis and under attack for quality concerns. Former Under Secretary and PTO Director James E. Rogan carefully articulated these problems. Through his leadership, Rogan successfully championed a series of initiatives to modernize the PTO. His central theme was modernizing the agency and transforming its nineteenth century business model for the twenty-first century. However, patent reform has become increasingly difficult recently due to the rigors of the legislative process and political considerations. This Article applies game theory, a branch of applied mathematics, to propose a new patent reform whereby the PTO focuses more resources on more rigorous examination of fewer applications. Empirical patent scholars have concluded that only a small fraction of all patents are “valuable,” and scarce examination resources are not properly allocated. Economists liken the patent system to a lottery--individuals seek windfall rewards for their efforts. The Article’s proposed examination paradigm avoids arbitrary and irrational resource allocation by applying a market-based mechanism: an auction. An auction will discourage lottery strategies and helps weed out worthless applications. Since our history and tradition encourage promoting innovation and entrepreneurship broadly, the proposal offers inventors a choice for the legal protection of their inventions. Through an auction, inventors could vie for an application’s full-scale examination. Alternatively, they would be eligible for another type of protection (e.g., a petty patent). Nobel Laureate William Vickrey pioneered a sealed bid, second price variety of auction. It is an ideal mechanism for the allocation of scarce public sector resources, and is also appropriate in the patent context. It permits the more robust examination of a smaller set of applications. This will help ease the PTO’s workload crisis, discourage specious applications, and hence enhance patent quality. The Vickrey auction does not seek to maximize revenue so as to punish new inventors, small businesses, and non-profits. Rather, it dynamically finds the most optimal price for government examination services. This Article’s new paradigm promises to break the century-plus cycle of dysfunction and offer public policy benefits for each of the participants and society at large.