scholarly journals Divided Performance of Patented Methods in Australia: A Call to Codify Procured Infringement

2018 ◽  
Vol 41 (1) ◽  
Author(s):  
Johnathon E Liddicoat
Keyword(s):  
Common Law ◽  
Patent System ◽  
Patent Infringement ◽  
The Us

The US case Akamai Technologies Inc v Limelight Networks Inc brought the patent world’s attention to the issue of if and how a patentee may enforce a method claim against a competitor who performs some of the steps in the method but leaves other steps to be performed by arms-length clients – a scenario known as divided performance. The case raised the possibility that divided performance effectively enables a competitor to use a patented method – yet avoid infringement. This article finds that no Australian patent infringement mechanism clearly creates liability for divided performance; however, it also reveals that the seldom invoked, common law mechanism known as procured infringement plausibly does. As a result, this article argues that procured infringement should be codified in the Patents Act 1990 (Cth) to resolve ambiguity surrounding whether it creates liability, thereby generating certainty for the myriad stakeholders who use the patent system.

Part I Legal and Practical Challenges to Traditional Trade Finance, 7 Letters of Credit and Stop Payment Orders Made in the Issuer’s Country

2021 ◽  
Author(s):  
Enonchong Nelson
Keyword(s):  
Common Law ◽  
Critical Examination ◽  
Letter Of Credit ◽  
Rome Convention ◽  
The Us ◽  
The Law ◽  
Letters Of Credit ◽  
Contractual Obligations ◽  
Rome I ◽  
Made In

This chapter offers a critical examination of the significant, but largely unexplored, question whether, and to what extent, a foreign order restraining the issuing bank from making payment under a letter of credit can afford the issuing bank a good defence to a claim in a court outside that bank’s home jurisdiction. At common law, in England as well as in other jurisdictions, such as Hong Kong, Singapore and the US, such orders have only limited effect in the forum. This chapter argues that the approach of the English courts to article 4 of the Rome Convention of 19 June 1980 on the law applicable to contractual obligations meant that such orders could defeat a claim against the issuing bank in England only in very narrow circumstances. It goes on to examine the extent to which the changes introduced in article 4 of the Rome I Regulation of 17 June 2008 on the law applicable to contractual obligations have altered the position under English law, so that stop payment orders made in the issuer’s home jurisdiction may now have a much wider reach in England. The chapter contends that notwithstanding the amendments to article 4, in the specific context of letters of credit, the approach of the English courts under the Rome I Regulation is likely to be broadly similar to that under the Rome Convention. The Rome I Regulation has not (even unintentionally) opened the door to stop payment orders made in the issuer’s home jurisdiction.

The Fourth Amendment's Exclusionary Rule: Blurring the Line Between Rule and Exception

2012 ◽  
Vol 9 (2) ◽  
Author(s):  
Liz Heffernan
Keyword(s):  
United States ◽  
Supreme Court ◽  
Common Law ◽  
The United States ◽  
Deterrent Effect ◽  
Criminal Proceedings ◽  
Exclusionary Rule ◽  
The Supreme Court ◽  
The Us ◽  
Us Supreme Court

The admissibility of unlawfully obtained evidence in criminal proceedings has generated controversy throughout the common law world. In the United States, there has been renewed debate in recent years over the propriety of the judicially-created exclusionary rule as a remedy for violations of the Fourth Amendment guarantee against unreasonable searches and seizures. When defining the scope and purpose of the rule, the US Supreme Court has placed ever increasing emphasis on the likely deterrent effect which suppressing evidence will exert on law enforcement. This article explores the consequent restriction of the exclusionary rule evinced in the contemporary case law including United States v Herring in which the Supreme Court expanded the scope of the so-called "good faith" exception. In conclusion it offers reflection from the perspective of another common law country, Ireland, where the exclusion of unconstitutionally obtained evidence has been the subject of debate.

Global patent system rethink is required ahead

2015 ◽  
Keyword(s):  
Patent Protection ◽  
Low Cost ◽  
New Technology ◽  
Consumer Welfare ◽  
Patent System ◽  
Content Type ◽  
Patent Pools ◽  
Technology Firms ◽  
Diffusion Of Knowledge ◽  
The Us

Subject Outlook for the global patent system. Significance Innovation and the diffusion of new technology contribute to GDP growth and consumer welfare. Intellectual property rights such as patents are designed to promote innovation by rewarding inventors with a right of exclusion that prevents others from making, selling or using their invention for a fixed period of time, unless they pay a licence fee. Patent registration is increasing rapidly both within advanced and emerging countries, as the latter learn about its value. However, there is a conflict between rewarding innovators with monopoly rights and promoting the diffusion of knowledge at low cost. As more products and techniques are protected by patents, there is concern that the system is inhibiting rather than promoting growth. Impacts The US patent system supports innovation, while the EU system is less clearly defined with unitary patent protection. Licensing will need to be easily obtained at reasonable prices with terms conducive to both technological and business model exploration. Governments and supranational authorities will need to ensure that patent pools can operate within sympathetic but fair antitrust regimes. Regulatory authorities will need to ensure that patent pools cannot become tools for collusive activity by leading technology firms. Firms will need to monitor constantly legislation and judgments relating to their industry in countries in which they operate.

scholarly journals Of Smart Phone Wars and Software Patents

2013 ◽  
Vol 27 (1) ◽  
pp. 67-86 ◽  
Author(s):  
Stuart Graham ◽  
Saurabh Vishnubhakat
Keyword(s):  
Smart Phone ◽  
The United States ◽  
Patent System ◽  
Patent Office ◽  
Competing Values ◽  
Administrative Reforms ◽  
The Us ◽  
Software Patents ◽  
Over Time ◽  
The Web

Among the main criticisms currently confronting the US Patent and Trademark Office are concerns about software patents and what role they play in the web of litigation now proceeding in the smart phone industry. We will examine the evidence on the litigation and the treatment by the Patent Office of patents that include software elements. We present specific empirical evidence regarding the examination by the Patent Office of software patents, their validity, and their role in the smart phone wars. More broadly, this article discusses the competing values at work in the patent system and how the system has dealt with disputes that, like the smart phone wars, routinely erupt over time, in fact dating back to the very founding of the United States. The article concludes with an outlook for systematic policymaking within the patent system in the wake of major recent legislative and administrative reforms. Principally, the article highlights how the US Patent Office acts responsibly when it engages constructively with principled criticisms and calls for reform, as it has during the passage and now implementation of the landmark Leahy–Smith America Invents Act of 2011.

scholarly journals Lex Internationalis: Kiobel, Empires and the Color of Human Rights

2020 ◽  
Author(s):  
P. Sean Morris
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Common Law ◽  
Human Rights Violations ◽  
Modern Conception ◽  
The Supreme Court ◽  
The Us ◽  
Alien Tort Statute

In this article, I investigate the nature and origin of the Alien Tort Statute (A TS) and its link and application to the modern conception ofhuman rights. In the recent Kiobel decision, the Supreme Court resurrected the A TS and found that the A TS does not apply to human rights violations outside of the US allegedly committed by foreign-based corporations. The Supreme Court held that the presumption against extraterritorially applies to common law causes of action under the A TS, and no evidence exists that the First Congress wanted the A TS to confer jurisdiction over extraterritorial torts. In the article, Idevelop the notion ofthe color ofhuman rights to demonstrate that human rights itself has become a sort of lex internationalis.

scholarly journals Dictum on Dicta: Obiter Dicta in WTO Disputes

2018 ◽  
Vol 17 (3) ◽  
pp. 509-533 ◽  
Author(s):  
HENRY GAO
Keyword(s):  
Legal System ◽  
Dispute Settlement ◽  
Common Law ◽  
The United States ◽  
Legal Issue ◽  
Recent Attempt ◽  
Stare Decisis ◽  
Appellate Body ◽  
Wto Dispute Settlement ◽  
The Us

AbstractThis paper discusses an important legal issue raised by the United States in its recent attempt to block the reappointment of an Appellate Body member. According to the US, in some of his decisions, the member has made overreaching findings that amount to obiter dicta. As obiter dictum is a unique concept in the Common Law system, the US argument may only stand if the concept may be found in the WTO legal system as well. With a careful analysis of the concept of dicta in Common Law and a close examination of the effects of past panel and Appellate Body decisions in WTO dispute settlement, the paper rejects the US argument by refuting each of the three premises of the US argument, i.e., the WTO legal system based on Common Law; WTO follows stare decisis; and the WTO has rules against dicta. In addition to original contributions on the nature of the WTO dispute settlement system in theory, the article also provides some practical advice on how the controversy may be resolved.

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