Suchergebnisse

General nature of Standard Setting Organization (SSO) -- China's recent SSO antitrust violations in spotlight - FRAND -- The incorporation of patent misuse doctrine in antitrust enforcement and a review on US antitrust law -- The use of economic theories to resolve legal issues -- The development of China's antitrust regulations on SSO'S patent pooling -- The change of China's sentiment on SSO'S patent pools -- Chinese courts' antitrust enforcement and the FRAND obligation on SEP holders: IDC v. Huawei -- Administrative agencies' antitrust enforcement developments and new guidelines issued for regulating SSO'S patent pooling arrangement -- MOFCOM'S antitrust enforcement on SEP issues -- The state administration for industry and commerce of the People's Republic of china (SAIC) -- The development of NDRC's antitrust enforcement on SEP issues -- The anti-monopoly guidelines on abuse of intellectual property rights (draft for comment)

This Article examines the decisional history that shaped the misuse doctrine and the interplay between the misuse defense and antitrust liability in patent and copyright infringement litigation. In particular, by examining the public interest and policy considerations underlying patent and antitrust laws, this Article compares and evaluates the new view that misuse must be analyzed by the conventional antitrust theories expressed by Judge Posner in USM Corp. v. SPS Technologies Inc. and the traditional view that was derived from the equity doctrine expressed in Morton Salt v. G.S. Suppiger. Furthermore, this Article reviews the legislative history and the impact on the existing common law to see to what extent the new limitations apply. This Article also criticizes the Lasercomb court's application of the traditional view and concludes that the court should have extended the new limitations in the Patent Misuse Reform Act to evaluate the licensing practice.

This casenote will discuss as background: (1) the judicial doctrines of contributory infringement and patent misuse as they developed before 1952; (2) section 271 of the Patent Act of 1952; and (3) the impact of this section on the contributory infringement/patent misuse doctrines in post-1952 Supreme Court cases. An analysis section will contrast the majority and minority interpretations of: (1) 35 U.S.C. §§ 271(c) and (d); (2) the legislative history of the Patent Act of 1952; and (3) post-1952 Supreme Court decisions as each impacts the result in Dawson. The final section will discuss patent policy considerations absent from the Supreme Court's analysis.

Misuse of users' personally identifiable information is persistent and pervasive. This Article addresses two questions: why is information misuse so common and so severe and how could domestic law change to make it less so? I use a simple model to illustrate that companies externalize information misuse costs onto users, which has two related but distinct effects: chronic underinvestment in information security and excessive retention of user data. I then seize on this observation to propose a specific legal vehicle at the heart of this Article—a private enforcement remedy. This private enforcement remedy has four essential features. First, the remedy must be created under state law. State law provides a viable alternative when federal courts have used the constitutional standing doctrine to express overt hostility to privacy harms. Second, the law should impose a fiduciary duty on entities that collect or retain users' information. Structuring the remedy this way insulates it from attack by a weaponized First Amendment. Third, breach of an information fiduciary's duty should be a strict liability tort. The arguments for strict liability in products liability cases apply with even greater force to informational harms. Fourth, the statute that creates this private enforcement remedy should prescribe a schedule that begins with nominal damages and attorney's fees for strict liability, and it should increase monetary penalties with a defendant's culpability. The remedy's central purpose is to reshape incentives, so the damages schedule should not be unduly punitive or effect a windfall for plaintiffs' attorneys.

The case-law on Article 18 of the European Convention on Human Rights has been evolving recently in a dramatic fashion. This evolution, which shaped a new doctrine on the misuse of power, focuses on the criminalisation of dissent within a State where undemocratic tendencies arise. The purpose of this article is to highlight these undemocratic tendencies and demonstrate that Article 18 ECHR addresses the systemic deficiencies in the balance of powers within a State. A violation of Article 18 ECHR occurs when the executive branch of government male fide tries to erode the social, political and economic contre-pouvoirs within a State and when the institutional contre-pouvoirs, namely the judicial and the legislative branch of government, fail to avert this erosion.

In the Responsibility to Protect (R2P) normative perspective if a state is not capable or is unwilling to be responsible toward its citizens the responsibility to protect them should be borne by the international community which, under certain conditions, can carry out a military intervention in its domestic jurisdiction to address gross violations of human rights. The R2P principles for military intervention (right intention, last resort, proportionality etc.) are deliberately inspired by the Just War Theory. The paper problematizes the way the R2P uses just war theory. In the first place, it claims that the establishment of modern international relations around the principle of sovereignty matched with the rejection of the Just War doctrine. It argues that such a rejection cannot be reduced to a pure normative evolution – that a current normative change can overtake – but the incongruity between sovereignty and Just War was more substantial and still persists today. In this view, the stark dichotomy between responsibility and control (assumed by the R2P) should be questioned, since it neglects a more ambiguous relationship in which sovereignty has always implied a political responsibility. In the second place, the paper challenges the notion of individual sovereignty – on which the R2P is based on – to emphasise the pluralistic character at the origins of sovereignties. The pluralist character of sovereignty collides with the inescapable universalistic stance of the just war theory. Finally, building on these insights, the paper sheds some light on current limits and paradoxes of the R2P: the problematic reference to the just war theory concerning the problem of the 'right authority' principle and 'who should intervene'.

The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions are subject to myriad stringent procedural rules that help protect class members, members who "opt out," and even defendants who find themselves liable for often sky-high damages. On the other hand, parens patriae suits are largely unregulated and free from requirements that plaintiffs seeking class certification must meet. Part of this distinction seems to stem from an assumption that attorneys general are adequate representatives of their citizens' interests. The relative ease of bringing a parens patriae suit, compared to the increasingly onerous requirements of private class actions, has led state attorneys general to bring claims under parens patriae standing more frequently in the twenty-first century. But the lack of procedural protections in parens patriae suits means that state citizens affected by a parens patriae suit may potentially be precluded via res judicata from bringing valid, individual or class claims that have already been brought by the state on their behalf. Furthermore, it is not clear that parens patriae suits are an adequate, let alone superior, method of litigating citizens' claims. Settlements reached between states and defendants pose additional adequacy problems due to being unregulated and determined by a political representative, who may have interests distinct and separate from the interests of individual citizens. First, this Comment traces ...

It is universally known by sociologists that the formation and existence of a civilization is dependent on the adherence to a set of established and accepted norms and guidelines which guide not only human conduct but also human interaction. With the evolution of time a written constitution became necessary with all the laws around which the state is to be guided around penned down in a definite manner by the constituent assembly years back. But with the evolution of time the constitution also needs to be changed according to the new aspiration and goals of the society. Therefore, the power to amend the Constitution of India is vested in Parliament to amend, alter, add or change any part of the Constitution to help it keep pace with the pace of a changing society. Though this power of amending the Constitution is entrusted with the Parliament which consists of the representatives of the people it transgresses it power and alters parts of the constitution which would deface the true identity of the Constitution. In order to prevent this misuse of power the Judiciary is entrusted with the power of Judicial Review whereby it has the power to adjudicate upon the constitutional validity of all laws which are to be enforced on the Union. If in any case the Parliament violates any provision of the Constitution, it can be deemed to be ultra vires and therefore invalid. Though this power was being misused by the Parliament in a great deal in later part of the 20th century, which the Supreme Court tried to put a brake on this legislative and executive overreach by evolving the Basic Structure Doctrine in the case of Keshavananda Bharti in 1973. Which empowered to the Parliament to amend any part of the Constitution under article 368, except those features which form a part of this doctrine. This paper seeks to delve deeper into this silent Doctrine and how it was formed by the judiciary by way of its judicial journey to its formation, followed by what it is and what constitutes as a part of this doctrine from ...

This paper argues the Responsibility to Protect (R2P) doctrine institutionalised empathy and altruism, however incompletely and imperfectly, and began a transformation of the UN Security Council's 'organisational responsibility' by shifting the organisation's moral frame of reference from state to individual security. Second, the twin dangers associated with the misuse of the R2P doctrine—namely paternalistic interventions or the cynical use of R2P language and reasoning to justify interventions taken primarily to promote the interests of the interveners – can be ameliorated by even greater institutionalisation of empathy, a process that is already underway.