Note

Eliminating the Single-Entity Rule in Joint Infringement Cases: Liability for the Last Step

The Patent Act of 1952 provides that “whoever without authority makes, uses, offers to sell, or sells any patented invention, within the United States…infringes the patent.” It is often clear who directly infringes a patent: We can recognize who uses a machine, or sells a manufactured product, or makes a composition of matter. Identifying the user of a multistep patented method, however, can be a murkier inquiry. Who “uses” a patent when multiple parties combine to complete the protected steps?

This question has stumped courts for decades. The Federal Circuit’s most recent attempt to address the issue drew a swift rebuke from the Supreme Court in Limelight v. Akamai. The Federal Circuit’s previous attempts to lay forth a workable standard in “joint infringement” cases, however, are also inadequate. So too are previous suggestions from the academy.

This Note attacks the premise of joint infringement cases by exploring the foundation of the Federal Circuit’s “single-entity rule.” This Note contends that the rule, which says that a party does not directly infringe a patented method unless the party completes all steps of the method, is based on a misreading of precedent. Having set aside the single-entity rule, this Note turns its focus to a potential solution. It proposes that a party who completes the last step of a patented method and accomplishes the desired result only because each prior step was already completed “uses” the patent and therefore infringes it. The Note concludes by exploring the implications of this new, suggested approach.

Federalism, Due Process, and Equal Protection: Stereoscopic Synergy in Bond and Windsor

Few constitutional themes have galvanized popular political factions—and, consequently, have been perceived to be in natural tension with each other—as much as federalism, on one side, and the substantive due process and equal protection doctrines, on the other. The concepts have assumed these polarized and competing public associations through their practical interactions over the twentieth century, often serving as both the targets and the weapons of charges of judicial activism. However, the Supreme Court’s recent opinions in United States v. Windsor and Bond v. United States, read together, reveal an attempt to reconcile these two seemingly disparate constitutional themes. Specifically, Justice Kennedy’s writings in both cases suggest an ironic conservative salvaging of the fundamental interest strand of the equal protection doctrine. In this modern take on the doctrine that first gained popularity under the more liberal Warren and Burger Courts but attracted little attention since, an individual’s fundamental interest in the rights created by her state within its reserved powers is fused with equal protection concerns to motivate a heightened tier of judicial scrutiny. This Note argues that such “stereoscopic synergy” may serve as a value-free, representation-reinforcing judicial mechanism: It provides a framework by which courts may correct defaults in the political process’s protection of minorities’ interests when federal law discriminately recognizes validly enacted state regulations based on the suspect or quasi-suspect class of the burdened individuals. This same analysis can be applied to advance causes championed on opposite ends of the political spectrum, such as medical marijuana use and private gun ownership. As such, this conservative twist on a historically liberal concept disrupts the popular culture’s perception of federalism and substantive due process-equal protection as necessarily conflicting doctrines. 

An Empirical Analysis of Sue-and-Settle in Environmental Litigation

This Note aims to expand understanding of the sue-and-settle controversy by providing useful data, analytics and commentary from which courts, policymakers and academics may further their exploration of the process.  This Note applies empirical analysis to sue-and-settle under the Clean Air Act, Clean Water Act and Endangered Species Act under the current Administration.  It explores the principal charge against the process: that it has the effect of secret, backdoor rulemaking; and, it finds that a more nuanced analysis than that conducted by leading critics of the practice should properly distinguish between two very different uses of the practice—one deleterious, the other beneficial.  Accordingly, the Note concludes that only with the former use should the process give cause for alarm, and that such deleterious uses make up only an extremely small fraction of sue-and-settle cases.  Thus, wholesale destruction of the process is unnecessary; targeted remedies are more appropriate.

In the war over sue-and-settle, this Note does not completely dispel the fog by providing a definitive account of the causation behind the explosive growth in the process.  But it does, however, provide further illumination of the battlefield, better informing the ongoing debate.

 

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