38 Rutgers L. Rec. 18 (2011) | WestLaw | LexisNexis | PDF
The Person Having Ordinary Skill in the Arts (PHOSITA) is a critical standard in determining whether an invention satisfies the “obviousness” and “inventive step” requirements of the U.S. and Taiwan respectively. The concept of the PHOSITA first originated from the 1850 Supreme Court ruling in Hotchkiss v. Greenwood and later was codified into the U.S. Patent Act of 1952. Often a recipient of U.S. patent jurisprudence, Taiwan has incorporated the PHOSITA concept in its 1979 Patent Act amendment. However, in practice, the application of the PHOSITA has been largely ignored in both the U.S. and Taiwan. Not only was the PHOSITA concept largely ignored in Taiwan, in practice the satisfaction of the “inventive step” requirement could be obtained simply on a showing of “unexpected efficacy.” In this regard, Taiwan has relied on the Taiwan Intellectual Property Office (TIPO) Invention Patent Examination Guideline (2009) to support the abdication of the “inventive step” requirement.
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In March 2010, the Transportation Security Administration (‘TSA’) began rolling out its Advanced Imaging Technology (‘AIT’). The AIT, also known as the Full Body Scanner, penetrates clothing with a burst of radiation which provides an image of the passenger’s naked body along with any guns, weapons or items secreted on the passenger. The TSA stated the new scanning devices were to “ensure travel remains safe and secure.” In late 2010, the TSA announced it was implementing new pat-down procedures. These new ”enhanced” pat-downs were put in place in order to “keep the traveling public safe.” The AIT and enhanced pat-downs permit what some have described as a sexual assault on today’s airline passenger. When a passenger is selected for enhanced screening, they have two choices: be viewed naked or be groped. Continue reading
38 Rutgers L. Rec. 133 (2011) | WestLaw | LexisNexis | PDF
Although precedent suggests that New Jersey’s appellate judges must be cautious when encroaching into areas best left to the expertise of the family court, there are often times on appeal when a sufficient factual record exists for the Appellate Division to decide any lingering questions without the need for a further remand. The objective of this article is to show that by invoking its original jurisdiction authority, the Appellate Division can reduce the time and resources spent on family-related litigation. Indeed, the appellate court should not hesitate to invoke original jurisdiction when deciding contentious family matters that have been the subject of prolonged litigation. Part I of this article discusses the financial and emotional burden that litigation places on families, while Part II addresses the basis of the Appellate Division’s original jurisdiction authority and the benefits of its use. Part III analyzes recent family cases where the Appellate Division used its original jurisdiction power, providing practitioners with concrete examples of when the authority can be properly invoked to bring about a timely end to litigation. Finally, Part IV assesses how to prevent the appellate court from overreaching into areas best left to the Family Part.
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38 Rutgers L. Rec. 74 (2011) | WestLaw | LexisNexis | PDF
Cocaine sentencing policy has been the source of vociferous debate for more than twenty
years. Under the traditional sentencing scheme, criminal defendants convicted of crack cocaine offenses (who were usually black) were disproportionately sentenced to longer prison terms than defendants convicted of powder cocaine offenses (who were usually not). Despite decades of criticisms toward this disparity, Congress did not change the sentencing law until August 2010. On the other hand, the United States Sentencing Commission was an unlikely hero that affirmatively acted to reduce the disparity between crack and powder cocaine sentences. That role is largely underappreciated. Based on the Commission’s 2007 retroactive amendment that reduced the sentencing guideline ranges for crack convictions, Congress should recognize the value of the Commission and grant it additional power.
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38 Rutgers L. Rec. 1 (2011) | WestLaw | LexisNexis | PDF
The state of intellectual property infringement jurisprudence on the Internet is rapidly changing. Neither the courts nor rights holders who have relied on the legacy frameworks yet understand how to address the new market or technological landscape that the Internet is painting around them. Search engines, auction sites, and social networks are each examples of an Online Service Provider (“OSP”). These OSP’s form the core of OSP’s with which the law in each country must contend. These OSP’s are of central importance because they are the loci of a great amount of infringement in both copyright and trademark in international trade. The issue is complicated because communities of people not affiliated with the OSP are often the main contributors of the infringing content. In light of recent cases in Asia, where courts have applied different methodologies and thus reached different conclusions, it is crucial to understand to what degree OSP’s are liable for infringing content on their sites.
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