Showing papers by "Jones Day published in 2013"

EU accession to the ECHR: Bringing about an aggiornamento for EU case law? Overview of ECHR and EU case law

Abstract: Would it be unfair to depict the relationship between the European Convention on Human Rights (ECHR) and the EU Treaties and the relationship between the Luxembourg Court and its Strasbourg…

How the Google Consent Order Alters the Process and Outcomes of Frand Bargaining

Abstract: The Federal Trade Commission (“FTC”) recently closed its investigation of Google, following a thorough analysis of numerous aspects of Google’s business conduct. The Proposed Consent Order into which the FTC and Google tentatively entered has garnered significant attention from the antitrust and intellectual property communities for a number of reasons. One important reason is that the Proposed Consent Order places serious limits upon Google’s ability to seek injunctive relief for its patents that are considered “standard-essential” and that are subject to fair, reasonable, and nondiscriminatory (“FRAND”) commitments. This limitation reflects the emerging tendency of competition agencies to consider the threat or pursuit of injunctive relief a serious competitive concern when the patent at issue is standard essential and the patent holder previously agreed to license that patent on FRAND terms. Indeed, the issue of whether, and if so, under what circumstances, standard essential patent (“SEP”) holders should be allowed to seek, and courts should grant, injunctive relief in cases involving FRAND bargaining has been the topic of considerable debate amongst intellectual property and antitrust scholars, as well. With the closing of its Google investigation, the FTC has joined the United States Department of Justice (“DOJ”) in issuing official statements indicating that owners of SEPs who have agreed to bargain on FRAND terms may be subject to investigations and penalties simply for seeking an injunction against a member of the standard setting organization (“SSO”). This new approach portends a significant shift in the way FRAND negotiations are conducted and in the outcomes they produce. The goal of this Essay is to raise some concerns regarding this issue, and, in particular, to focus upon the potential consumer welfare effects of essentially removing the possibility of injunctive relief for FRAND-encumbered SEPs. Part I of this Essay describes SSOs and FRAND bargaining, highlighting the potential competitive benefits and pitfalls — most notably, patent holdup — associated with them. Part II articulates the developing approaches the FTC and DOJ have taken toward the possibility of injunctive relief for SEP holders subject to FRAND commitments, noting both how these approaches have evolved over the last few years and the most recent official decisions by each agency. Part III then analyzes the desirability of these approaches; it examines the limited available evidence regarding the extent of patent holdup in FRAND negotiations, how the agencies’ latest approach seemingly departs from the traditional patent law approach to remedies, and how the unintended consequences of disallowing injunctive relief in these cases may negatively affect consumer welfare. Part IV concludes.

Certificates of Confidentiality: Protecting Human Subject Research Data in Law and Practice

Abstract: Researchers often require and collect sensitive information about individuals to answer important scientific questions that impact individual health and well-being and the public health. Researchers recognize they have a duty to maintain the confidentiality of the data they collect and typically make promises, which are documented in the consent form. The legal interests of others, however, can threaten researchers’ promises of confidentiality, if they seek access to the data through subpoena. Certificates of Confidentiality (Certificates), authorized by federal statute, are an important tool for protecting individually identifiable sensitive research data from compelled disclosure. However, questions persist in the research community about the strength of Certificate protections, and the evidence on which to judge the strength is scant. In this article, we address those questions through a careful examination of the legislation and regulations concerning Certificates and the reported and unreported cases we have identified through our legal research and interviews with legal counsel about their experiences with Certificates. We also analyze other statutes that protect research data to compare them to the Certificate’s protections, and we review other legal strategies available for protecting research data. Based on our analysis, we conclude with recommendations for how to strengthen protection of sensitive research data.

The US Court of Appeals for the Ninth Circuit opens new window for removal of State court cases to federal court (Roth / CHA Hollywood Medical Center)

Abstract: A defendant generally may remove a civil action from state court to federal district court if the district court would have had jurisdiction had the action been originally filed in that court. 28…

A U.S. Court of Appeals narrows the state action exemption (North Carolina State Board of Dental Examiners)

Abstract: The Fourth Circuit Court of Appeals has ruled that North Carolina's Dental Board cannot ban non-dentists from offering teeth-whitening service, upholding the Federal Trade Commission's finding that…

May Contain Unvaccinated Children: Imposing a Duty to Warn in the Context of Nonmedical Childhood Vaccine Exemptions

Abstract: Vaccines are one of the “ten great public health achievements” in the twentieth century. Yet as a growing number of states allow exemptions from mandatory vaccination laws for religious, philosophical, and personal reasons, nonvaccination rates are on the rise. At the community level, increased exemptions lead to reduced herd immunity and increased vaccine-preventable outbreaks.This Note addresses the community issues by applying a concept from tort, products liability, and food safety law: the duty to warn. Ultimately, this Note suggests imposing a duty to warn the public (and particularly vulnerable individuals who rely on herd immunity because they cannot be vaccinated for medical reasons) about vaccination levels in schools and daycare facilities. With such a warning, vulnerable individuals can avoid exposure to low-vaccination areas and reduce their risk of contracting injurious, preventable diseases. This duty to warn balances the interests of parents seeking exemptions and vulnerable individuals seeking to avoid harm.The data required for such a warning — aggregate immunization rates — already exist because many states require schools and daycare facilities to report such data to public health officials. Moreover, publicly disseminating vaccination levels in the aggregate would avoid privacy issues. The warning should be required by statute, creating a standardized system that is easily understood and simplifies facility comparison. Covered entities would be required to publicly post their current vaccination levels as green, yellow, or red, thus building on the public’s familiarity with the stoplight paradigm: green is good, yellow means caution, and red signals stop or avoid. The statutory limits for each color would be based on herd immunity thresholds and the Healthy People 2020 goals. Effectiveness could be increased by adding emotional indicators: a smiling face with green and a frowning face with red. If successful, the warning could be expanded to other entities such as pediatrician offices.