|
Editor-in-Chief
|
|
||||||
|
The Volume 27 Fall Proficiency Packet is here. We wish new applicants the best of [...] By Ira Knight
Abstract
This paper studies how legal choices, and in particular legislative determinations, need to consider multiple rights and values,
and can be assessed accordingly. First it is argued that legal norms (and in particular constitutional right-norms) often prescribe the pursuit of goals, which may be in conflict one with another. Then a model of teleological reasoning is brought to bear on choices affecting different goals, among which those prescribed by constitutional norms. An analytical framework is provided for evaluating such choices with regard to possible alternatives. The assessment of legislative choices according to proportionality is then considered, and is modelled using the provided analytical framework. Finally, the framework is expanded to include the ideas of reasonableness and institutional deference, and the corresponding margins of appreciation.
Volume 92 Number 2, Spring 2010Fellow Citizens: Be On Guard – Paul R. MichelMachine-or-Transformation Test Hits The Board: Patent-Eligible Subject Matter Following Bilski – Peter Ludwig The Book of Wisdom: How to Bring a Metaphorical Flourish Into the Realm of Economic Reality by Adopting a Market Reconstruction Requirement in the Calculation of a Reasonable Royalty – D. Christopher HollyPatent Cooperation Treaty (PCT) – Juan LapenneDeconstructing the Patent Application Backlog …A Story of Prolonged Pendency, PCT Pandemonium & Patent Pending Pirates – Warren K. Mabey, Jr.Hey! You! Get Off of My Cloud: Defining and Protecting the Metes and Bounds of Privacy, Security, and Property in Cloud Computing – Timothy D. Martin [...] In Canada the Federal Court of Appeal agrees with the Copyright Board that the fair dealing exception relating to ‘research’ is broad enough to cover 30-second ‘previews’ of songs [...] Internet access is threatened as Ireland’s graduated response settlement is confirmed by a court to be compatible with data protection [...] The European Court of Justice (ECJ) upheld the rejection of an application by the Community Plant Variety Office (CPVO), confirmed by the Board of Appeal of the Office and the Court of First Instance due to lack of distinctness of the candidate variety compared to a reference variety, while sustaining the General Court’s opinion of the wide discretion of the CPVO. Finally, the ECJ discussed the extent to which the General Court may review decisions by the Office and its Board of Appeal and the scope of review of the ECJ concerning judgments of the General Court in plant variety [...] Legal Context Article 36(6)(i) of the Japanese Patent Act requires that the invention for which a patent is sought should be stated in the description. The Grand Panel of the IP High Court identified this provision as a support requirement and set forth the conformity test of that requirement in the Polarizing film case. Although the IP High Court has adopted that test in subsequent cases, it recently introduced another new test and drew the line between the support requirement and the enablement requirement. This paper outlines how the IP High Court has applied the requirement of Article 36(6)(i) to the cases since its establishment in April 2005. Key Points The support requirement and the enablement requirement used to be applied together, especially in the invention of the use of compounds or medicines, in which clarification of utility in the description was required. But in the Flibanserin case, the IP High Court reversed the appeal decision that the claim did not comply with Article 36(6)(i) solely because there was no pharmacological data or its equivalent in the description. Practical Significance When the claims fail to comply with the support requirement, the application should be rejected, the patent should be invalidated, or the patentee cannot enforce the patent in the litigation of the infringement. In order to get a patent and enforce its right in Japan, it is important to know how the support requirement would be applied and how an applicant or a patentee could respond appropriately to the Patent Office or in the [...] |
||||||
|
|
||||||