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    $$ Thus, unlike slot cars there is no need for an operator to physically reposition their vehicle on the track in order for racing to resu…

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  • Stuart, East Cavalry Field, and Berkheimer

    More than ten years ago, IPBiz was discussing a book by Tom Carhart about the significance of J.E.B. Stuart’s actions
    on July 3, 1863 at East Cavalry Field at Gettysburg in evaluating the wisdom of Robert E. Lee’s ordering of Pickett’s Charge.
    See Was Tom Carhart’s book on Gettysburg pre-empted?

    One commenter to that IPBiz blog post agreed that Carhart’s theory had been pre-empted (i.e., already discussed in previous published work), although citing to an alternative history book on the Civil War, by one Winston Churchill (later to be British Prime Minister, as distinct from the Winston Churchill who wrote the Civil War book “The Crisis.”) To avoid confusion, the alternate history is titled “If Lee Had Not Won the Battle of Gettysburg” , First published in Scribner’s Magazine, December 1930, pp. 587-97, In a post on 8/3/2011 titled Churchill Imagines How the South Won the Civil War , ERNEST B. FURGURSON wrote:

    Given Churchill’s dissection of Gettysburg’s actual events, it’s no surprise that he made Stuart a crucial figure in his imaginary account for If. Returning to England after his jaunt through America, he began to work out in his mind just how Lee lost at Gettysburg—and how he might have won. “It always amuses historians and philosophers to pick out the tiny things, the sharp agate points, on which the ponderous balance of destiny turns,” he writes in the essay.

    Churchill goes on to attribute the Rebel victory to many small factors that aligned in their favor. “Anything…might have prevented Lee’s magnificent combination from synchronizing,” he writes. Like most historians, he points to the Confederate July 2 assault on Little Round Top as a pivotal moment; in his fictionalized version of events, the Rebels took the hill, depriving Meade of the high ground for his guns.

    But ultimately, Churchill concludes that Stuart was the key. His narrative has the cavalry arrive at the Union rear precisely as Major General George Pickett led his infantry charge on Meade’s position on Cemetery Ridge. This helped produce a panic that swept through the whole left of Meade’s army. There could be “no conceivable doubt,” he writes, “that Pickett’s charge would have been defeated if Stuart with his encircling cavalry had not arrived in the rear of the Union position at the supreme moment.”

    Carhart’s book was published in 2005, some seventy-five years after Churchill had isolated on the significance of Stuart’s attack (which in the real world failed, contrary to the alternate world of Churchill).

    Of interest here is an essay by Gompert and Kugler, published in 2006 in Defense Horizons, which analyzes “Lee’s Mistake,” allocating little significance to Stuart’s failure at East Cavalry Field. Of special interest is a quote on page 2 of the Defense Horizons article by James McPherson, which might be measured against McPherson’s earlier review of Carhart’s book.

    In terms of patent issues, such as those created by Berkheimer, it gives meaning to how difficult it is to evaluate how something can be “well understood.”

    In passing, “East Cavalry Field” has been somewhat revived in importance over the last ten or so years. One concurrent event that remains to be more fully evaluated is the action of the Union Army’s IV Corps in and around Richmond in June and July 1863.



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  • Maggie Chon on IP and Critical Theories

    I tend to approach IP law primarily through a law-and-economics lens, but I enjoy learning about how scholars with different methodological toolkits tackle the same subject matter—especially when their work is clear and accessible. I was thus delighted to see a draft chapter by Margaret Chon, IP and Critical Methods, for the forthcoming Handbook on Intellectual Property Research (edited by Irene Calboli and Lillà Montagnani). Chon provides a concise review of critical legal theory and its application to IP law.

    According to Chon, critical theory includes a critique of liberal legal theory as based on the fallacy that legal institutions fairly reflect constituents’ interests (as reflected in the marketplace or ballot box). Instead, the interests of privileged or empowered social groups are over-represented, and institutions contribute to these inequalities to the extent that enduring change requires reimagining these institutions themselves. Of course, as she notes, “critical theory would not exist without some belief (however thin) that law and legal systems contain some of the tools necessary for structural transformation.”

    Chon argues that one need not be a self-identified Crit to engage in critical methodology, and that many IP scholars have stepped closer to critical method by moving from doctrinal to structural analysis, and by “perform[ing] this structural analysis with attention to power disparities.” And she gives a number of examples of the influence of critical theory across different areas of IP.

    For example, Peter Drahos and John Braithwaite’s Information Feudalism: Who Owns the Knowledge Economy? focuses on reducing the asymmetrical power between corporations and consumers. Amy Kapczynski’s The Access to Knowledge Mobilization and the New Politics of Intellectual Property proposes a radical revisioning of social systems. Careful attention to power dynamics in copyright institutions is evident in Debora Halbert’s The State of Copyright: The Complex Relationships of Cultural Creation in a Globalized World and Jessica Litman’s Digital Copyright. For an examination of “the historical uses of racialized trademarks to consolidate a white national identity in the US in the late 19th century,” Chon recommends Rosemary Coombe’s The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law. And she points to Keith Aoki’s work on plant genetic resources and Boatema Boateng’s work on traditional knowledge as examples outside the “big three” areas of IP.

    For those looking for additional reading on innovation and inequality, the online readings from Barton Beebe and Jeanne Fromer’s NYU colloquium are a good place to start. And for Stanford Law students, you can sign up for my spring reading group!

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  • Fact or Fiction (i.e. Law): What Parts of the Eligibility Analysis are Questions of Fact?

    Fact or Fiction (i.e. Law): What Parts of the Eligibility Analysis are Questions of Fact?

    by Dennis Crouch

    A new petition for writ of certiorari focuses attention again on patent eligibility and the law-fact interplay. Real Estate Alliance Ltd. v. Move, Inc., SCT Docket No. 18-252.

    The original focus of patent law is to “promote the Progress of . . . useful Arts.”  In that vein, patents have long been awarded for inventions with concrete and practical uses — and barred to invention claims that are merely abstract ideas.

    In Mayo and Alice, the Supreme Court defined a two-step process for determining when a claimed invention is patent eligible:

    Step 1: Ask whether the patent claims are directed to a patent ineligible concept, such as a law of nature, natural phenomenon, or abstract idea.

    Step 2: If so, ask whether the claimed invention includes an “inventive concept” sufficient to transform the ineligible concept into a patent eligible invention.

    In Step 2, the Supreme Court also suggested an inquiry into whether the claims present “something more” beyond a combination of “well understood, routine, and conventional” elements.

    In this case, Real Estate Alliance Ltd.

    Continue reading Fact or Fiction (i.e. Law): What Parts of the Eligibility Analysis are Questions of Fact? at Patently-O.

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