Kafkaesque AI?
Legal Decision-Making in the Era of Machine Learning
By Carolin Kemper
Artificial Intelligence (“AI”) is already being employed to make critical legal decisions in many countries all over the world. The use of AI in decision-making is a widely debated issue due to allegations of bias, opacity, and lack of accountability. For many, algorithmic decision-making seems obscure, inscrutable, or virtually dystopic. Like in Kafka’s The Trial, the decision-makers are anonymous and cannot be challenged in a discursive manner. This article addresses the question of how AI technology can be used for legal decision- making and decision-support without appearing Kafkaesque.
First, two types of machine learning algorithms are outlined: both Decision Trees and Artificial Neural Networks are commonly used in decision-making software. The real-world use of those technologies is shown on a few examples. Three types of use-cases are identified, depending on how directly humans are influenced by the decision. To establish criteria for evaluating the use of AI in decision-making, machine ethics, the theory of procedural justice, the rule of law, and the principles of due process are consulted. Subsequently, transparency, fairness, accountability, the right to be heard and the right to notice, as well as dignity and respect are discussed. Furthermore, possible safeguards and potential solutions to tackle ex- isting problems are presented. In conclusion, AI rendering decisions on humans does not have to be Kafkaesque. Many solutions and approaches offer possibilities to not only ame- liorate the downsides of current AI technologies, but to enrich and enhance the legal system.
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Rocket Patent Strategies
By Brian S. Haney
The rapidly evolving body of rocket technology is spurring on a variety of new intel- lectual property strategies within the launch industry. Traditionally, innovative rocket tech- nologies have been zealously protected with patents. However, industry firms are now in- creasingly using trade secrets to protect proprietary technical information. Further, developments in reusable rocket technology are disrupting the launch industry, creating room for new firms to enter the growing market. Two such firms, SpaceX and Blue Origin, are establishing themselves as the new industry leaders, while deploying apparently diametrically opposed intellectual property strategies.
The chaotic evolution of the patent system has changed the way in which companies protect proprietary technologies, data, and information. Indeed, Blue Origin maintains a robust and growing patent portfolio, while SpaceX has not been awarded a single patent with the United States Patent and Trademark Office. Instead SpaceX utilizes trade secrets to protect its rocket technology. This article explores and explains the underlying causes of the trend toward trade secret protection in the launch industry. Further, this article is the first to explore increasingly complex intellectual property strategies through the lens of the launch industry, focusing specifically on SpaceX and Blue Origin’s battle over reusable rocket technology.
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Zombie (Trademarks) From Outer Space
By Belle Borovik
The living dead (Trademarks) are among us!
Taking advantage of the lack of clear statutory guidance under federal Trademark law, these Zombie Trademarks are feeding on the residual goodwill of and praying on con- sumer nostalgia. As the Zombie Marks virus is permitted to spread, a paralyzing thought must grip those in the business of protecting Intellectual Property rights—how would one prevent a Zombie Marks Apocalypse in the unregulated territory of Outer Space?
Outer Space is the new economic frontier. New private space flight options, including space tourism, partnership between the private sector and NASA to shuttle humans to-and- fro the International Space Station, NASA’s plan to return humans to the Moon (with the newly discovered water ice on its surface), and, finally, the crewed military habitats resulting from the U.S. Space Force, will undoubtably bring about an explosion of commercial ac- tivities in low-earth orbit. In the absence of any explicit prohibition on reviving the living dead marks in International law, the herders of the Zombie Marks will be shielded by the laissez-faire effect of the Lotus principle in the res communis of Outer Space. By way of the National Treatment Principle, U.S. Trademark law applies to the producers launched from the U.S., and in its current state, the law does not protect consumers or previous owners from the Zombie Marks Apocalypse.
This seminal note explores the issue of protection (or lack thereof) of abandoned Trademarks with residual goodwill in Space Commerce, proposing that the Remote Use Doctrine (amended to exclude the now-moot good faith requirement), and Section 5 of the Federal Trade Commission Act (amended to include a mandatory affirmative disclosure requirement) offer the most effective basis for protection of consumers and brand owners alike.
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Click-To-Call Techs., LP v. Ingenio, Inc.
899 F.3d 1321 (Fed. Cir. 2018)
By Derek Brower
Appellant Click-To-Call Technologies, LP (“CTC”) is the owner of U.S. Patent No. 5,818,836 (“the ‘836 patent”). Appellees are Ingenio, Inc. (“Ingenio”), YellowPages.com, LLC (“YellowPages”), Oracle Corp., and Or- acle OTC Subsidiary LLC (collectively, “Appellees”).1 Ingenio has since changed its name to YP Interactive LLC.
Prior to 2012, the ‘836 patent was owned by Inforocket.Com, Inc. (“In- forocket”). In 2001, Inforocket filed suit against Keen, Inc. (“Keen”) in the United States District Court for the Southern District of New York, alleging infringement of the ‘836 patent. Keen brought a counterclaim of infringe- ment against Inforocket, based on Keen’s own patent. The district court dis- missed Keen’s counterclaim, which led Keen to appeal the decision to the United States Court of Appeals for the Federal Circuit. In 2003, Keen ac- quired Inforocket. Both parties subsequently agreed to voluntarily dismiss their respective infringement suits without prejudice.
A subsidiary of AT&T, Inc. acquired Ingenio in 2008. AT&T, Inc. later sold all interest in Ingenio and YellowPages in 2012. Within one month, CTC acquired the ‘836 patent and brought patent infringement claims against several parties, including Appellees. These actions are currently stayed, pending the outcome of this appeal.
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Peter v. NantKwest, Inc. 140 S. Ct. 365 (2019)
By Herkiran Gill
Petitioner is Laura Peter, the Deputy Director of the United States Pa- tent and Trademark Office (“USPTO”). The USPTO is a United States agency that issues patents and trademarks to individuals and businesses. Re- spondent is NantKwest, Inc. (“NantKwest”), a biotechnology company that submitted a patent application for a new method of treating cancer. The USPTO’s Patent Trial and Application Board (“PTAB”) rejected the appli- cation.
The Patent Act allows a rejected patent applicant to appeal a PTAB decision in two ways. The first option, a Section 1411 application, allows a direct appeal to the United States Court of Appeals for the Federal Circuit. The applicant cannot offer any new evidence, and the process is only a judi- cial review of the USPTO’s decision on the same record the USPTO evalu- ated. The second option, a Section 1452 application, allows an applicant to file a civil action against the director of the USPTO in a federal district court. The petitioner can offer new evidence in this proceeding and the court con- ducts a de novo review of both the new evidence and the original record. If the applicant chooses this second option, Section 145 mandates “all expenses of the proceedings shall be paid by the applicant.”
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Athena Diagnostics, Inc. v. Mayo Collaborative Services, LLC
915 F.3d 743 (Fed. Cir. 2019)
By Elyse Gottschalk
Plaintiff Athena Diagnostics, Inc. (“Athena”) is the exclusive licensee of U.S. patent 7,267,820 (‘820)1 for methods used to diagnose Myasthenia gravis (MG), an autoimmune neurological disorder caused by the generation of muscle-specific tyrosine kinase (“MuSK”) autoantibodies.2 The ‘820 meth- ods detect MuSK and Athena markets the diagnostic test FMUSK, directed to those methods.
Defendant Mayo Collaborative Serivces, LLC (“Mayo”) has developed two testing protocols to diagnosis MG. These tests directly compete in the market with Athena’s FMUSK test.
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Patel v. Facebook, Inc.
932 F.3d 1264 (9th Cir. 2019)
By Bryce Hoyt
Appellees are a class of individual social networking website users from Illinois. Class representatives Adam Pezen, Carlo Licata, and Nimesh Patel (collectively, “Patel”) each live in Illinois. Appellant is Facebook, Inc. (“Face- book”), a corporation that owns and operates a social networking platform.
Facebook operates one of the largest social networking platforms in the world, comprising over one billion users worldwide. To register an account on Facebook, a new user must agree to terms and conditions, which author- ize Facebook to collect data in compliance with Facebook’s policies. To es- tablish connections on the site, a user must send out a friend request to an- other user. Upon acceptance of the friend request, the two users may share information in the form of photographs or messages.
The platform contains a feature which allows users to tag their Face- book friends in photos uploaded to the site. A tag places an indicator on the photo which identifies the name of the friend tagged and contains a link to their profile. Once a tag is placed, the party being tagged receives a notifica- tion and may “un-tag” themselves if they do not wish to be identified on the photograph.
In 2010, Facebook introduced a new feature called “Tag Suggestions”. When this feature is enabled, upon uploading a photograph to the platform, Facebook uses facial recognition technology to determine whether friends of the user are in the uploaded photo. The technology works by scanning each face in the photograph for unique data points such as the distance between the ears, eyes, or nose to create a face map or signature. Once the scanning is complete, the technology then compares the face map to faces within Fa- cebook’s database that have already been matched to a user’s profile, called face templates. If the face map and template are a match, Facebook will then ask whether the user would like to tag the person in the photo.
Face templates are stored within Facebook’s servers at nine data centers around the world, six of which are located in the United States. The states which contain data centers are California, Iowa, Oregon, Virginia, Texas, and North Carolina. Facebook is headquartered in California.
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Booking.com B.V. v. United States Patent and Trademark Office
915 F.3d 171 (4th Cir. 2019)
By Sophia Iams
Appellee Booking.com B.V. (“Booking.com”, “the company”) operates a website for consumers to purchase travel and hotel accommodations. The company has used the name “BOOKING.COM” since 2006.
Appellant United States Patent and Trademark Office (“USPTO”) is the government office that reviews trademark applications and determines whether to extend the registration of trademarks to applicants.
The protectability of a trademark, a requirement for registration, is de- termined based on its “distinctiveness strength”, varying from “(1) generic, (2) descriptive, (3) suggestive, or (4) arbitrary or fanciful.”1 Suggestive and arbitrary marks are always protectable. Generic marks can never qualify for protection. Descriptive marks might be distinctive depending on whether they have a secondary meaning in the public’s eye.
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In re Remicade (Direct Purchaser) Antitrust Litigation
938 F.3d 515 (3d Cir. 2019)
By Kaleigh C. Jones
Defendant Johnson & Johnson and its subsidiary Janssen Biotech, Inc. (collectively, “J&J”) manufacture the drug Remicade, the brand name of in- fliximab, a “biologic infusion drug” used to treat inflammatory conditions such as rheumatoid arthritis and Crohn’s disease.1 For several years the only infliximab drug on the market was Remicade; however, its market position was threatened after the Food and Drug Administration (“FDA”) approved “biosimilars” of Remicade—drugs manufactured by other companies and determined by the FDA to have “no clinically meaningful differences” from Remicade.2
Plaintiff Rochester Drug Cooperative (“RDC”) is a wholesaler and di- rect purchaser of J&J’s Remicade. In 2015, RDC entered into a contractual relationship with J&J through a Distribution Agreement (“Agreement”) which established RDC as an “Authorized Distributor of Record” and spec- ified various logistical obligations for its distribution of J&J’s pharmaceutical products, including Remicade. However, the Agreement did not stipulate a purchase price for the drug.
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Allen v. Cooper
895 F.3d 337 (4th Cir. 2018)
By Michael Walsh
Appellants are the State of North Carolina, the North Carolina De- partment of Natural and Cultural Resources, and individual government officials, both in their individual and official capacities (collectively, “North Carolina”). Appellees are Nautilus Productions, LLC (“Nautilus”), a film production company and the company’s owner, Frederick Allen (collective- ly, “Allen”).
In the eighteenth century, the Queen Anne’s Revenge was commandeered and later run aground by the pirate “Blackbeard” off the coast of North Carolina. The shipwreck and accompanying artifacts were placed under the “exclusive dominion and control” of North Carolina.1 In 1996, Allen, North Carolina, Intersal, Inc. (a private maritime salvager) and affiliate Maritime Research Institute, Inc. entered into a salvage agreement to col- lect artifacts from and film the Queen Anne’s Revenge.
The salvage agreement designated each party’s specific rights to the shipwreck. North Carolina was to retain the rights to the shipwreck and its accompanying artifacts, while Intersal and Maritime were entitled to the financial proceeds from media sales relating to the shipwreck. The salvage agreement also included an exception stating North Carolina would have the right to access and publish research documents relating to the project for non-commercial educational or historical purposes.
Intersal then retained Nautilus, Allen’s production company. Allen took thirteen years of footage and photos of the shipwreck, registering thir- teen copyrights with the U.S. Copyright Office, one for each year’s worth of documentation. Allen, in a previous complaint, alleged North Carolina published his copyrighted works on the internet without his consent in vio- lation of the salvage agreement. That dispute eventually culminated in a settlement agreement, which clarified the terms of the original salvage agreement.
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