Design Patents: How Close Is Too Close? Vacillating Court Decisions Provide Little Guidance, as Shown in Apple v. Samsung

Author: Ashley Clever, Contributing Member, University of Cincinnati Law Review

When marketing a new product, a business will often need to protect both the functionality and the overall design of a product to prevent competitors from producing an identical copy. While a utility patent covers a product’s functional features—how it works and what it does, a design patent can product a product’s aesthetic features—its design and how it looks.[1] Design patents however, provide notoriously little protection and are often construed only to cover the exact design. The Federal Circuit Court of Appeals has provided very little guidance in defining what a design patent protects, with even minute changes in design or ornamentation sometimes enough to overcome a patented design.[2] The recent case of Apple v. Samsung depicts the vacillating decisions in the court’s determination of what does or does not constitute design patent infringement.[3] These fluctuating court decisions create unnecessary confusion in determining the proper scope of design patent protection, leaving inventors as well as competitors with increasing uncertainty.

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Patent Privateering: Patents As Weapons

Author: Thibault Schrepel, LL.M., Antitrust Analyst

In the late 16th century, Queen Elizabeth I of England commissioned Francis Drake to sail for America. The Queen asked him to plunder Spanish vessels on his way there. Francis Drake became a pirate commissioned by the crown. This type of “legal” pirate was called a “privateer.” They allowed nations to attack one another without the risk of being counter-attacked, because the identity and the nationality of these pirates’ employers were kept secret.[1] Today, the spirit of those pirates is reborn. Known as “patent trolls,” these companies do not use patents for their technical aspects and are principally in the business of collecting money from others that use the patented designs or ideas,[2] and are now employed by high-tech companies seeking to use patents against their competitors.

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Reevaluating Planned Parenthood v. Abbott

Author: Colin P. Pool*

The Fifth Circuit’s March 2014 decision in Planned Parenthood v. Abbott[1] garnered attention[2] due to the controversial legislation that it upheld as constitutional: Texas H.B. 2, which in part required abortion providers to have admitting privileges at a hospital located within thirty miles of their clinic.[3] Critics have argued that this requirement is a legislative charade intended to force abortion providers to close,[4] continuing a broader debate regarding the constitutionality of abortion regulations.[5] This article reevaluates Abbott’s use of rational basis review in scrutinizing H.B. 2 by comparing it to the Fifth Circuit’s March 2013 decision in St. Joseph Abbey v. Castille,[6] where the court used the heightened “rational basis with bite” test to find a Louisiana funeral industry regulation unconstitutional.[7] In light of this comparison, Abbott’s rational basis analysis demonstrates a judicial double standard, and likely manifests the court’s political agenda.[8]

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Constructive Discharge: Drawing the Line

Author: Matt Huffman, Associate Member, University of Cincinnati Law Review

In Green v. Donahoe,[1] the Tenth Circuit considered when the limitations period starts for a constructive discharge claim under Title VII of the 1964 Civil Rights Act. The court held that the forty-five day clock starts ticking on the date of the employer’s alleged discriminatory act that causes the employee to resign. In so holding, the Tenth Circuit agreed with similar holdings by the Seventh Circuit and the District of Columbia.[2] The Second, Fourth, and Ninth Circuits, however, have all considered the same issue and concluded that the limitations period for Title VII constructive discharge claims starts to run on the date the employee resigns. In its decision in Green, the Tenth Circuit fell on the wrong side of an already blurred line, ensuring an increase in the premature filing of constructive discharge claims by employees eager to preserve their right to bring a claim.

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Amendment 1: How Tennessee Is Aborting a Woman’s Right to Privacy

Author: Stephen Doyle, Associate Member, University of Cincinnati Law Review

Hidden beneath the midterm’s senatorial supremacy sway lay various states’ inconspicuous ballot measures. A couple received some attention, primarily initiatives regarding marijuana legalization and minimum wage increases. However, one sweeping amendment to the Tennessee Constitution, Amendment 1,[1] has received very little attention outside of the state. The Amendment originated in response to a 2000 Tennessee Supreme Court ruling, Planned Parenthood v. Sundquist,[2] which limited regulations the state legislature could impose on pregnancy prevention providers by subjecting the regulations to a strict scrutiny analysis. Now, after obtaining legislative approval twice[3] and 53% voter approval,[4] the Amendment is likely to be ratified and effectively overturn Sundquist, pending the dismissal of a suit alleging that the Amendment was not properly ratified.[5]

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Can Police Dogs Search Your Car Without an Officer’s Reasonable Suspicion?

Author: Chris Gant, Associate Member, University of Cincinnati Law Review

Imagine being pulled over for a small traffic violation. Despite lacking a reason for suspicion, the police officer decides that you look like someone who might have something illegal in the car. Then, you wait for the K9 unit to get to your car (ten minutes, twenty minutes, or longer), the search turns up nothing, and you are free to go. While to some, this intrusion is a slight annoyance, to others, this search could have vast consequences for the rest of their lives if the illegal search produces contraband. The Supreme Court has held that a K9 drug sniff does not constitute a search, but has left the question open for how long a traffic stop can be delayed for a K9 unit, stating only that the delay must be “reasonable.”[1] An expansion of the definition of what is a “reasonable” delay has major consequences, and has the potential to turn any traffic stop into a witch-hunt for drugs. This scenario is a potential result of the Supreme Court’s anticipated ruling in Rodriguez v. United States. The Eighth Circuit Court of Appeals held in United States v. Rodriguez that following the completion of a traffic stop, it was permissible under the Fourth Amendment for a police officer to make a driver wait while a dog was employed to sniff his car, despite the officer’s lack of reasonable suspicion that the car contained contraband.[2] The court held that the search was constitutional because it was merely a “de minimis” intrusion on the defendant’s rights.[3]

Fortunately, the Supreme Court has the opportunity correct the Eighth Circuit’s decision and protect Americans’ right against unreasonable searches. The Supreme Court should rid appellate courts of the “de minimis” doctrine with regards to the Fourth Amendment because any intrusion on the fundamental rights of American citizens—such as the protection against unreasonable searches and seizures—is an unacceptable intrusion, regardless of the degree of infringement. Moreover, the “de minimisstandard is an unworkable one where no-bright line rule can exist with practicality. The standard is ambiguous and leaves too much leeway for officers to intrude on the privacy of citizens, and so must be rejected.

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Racial Quotas in Partisan Gerrymandering

Author: Jon Kelly, Associate Member, University of Cincinnati Law Review

Every ten years, a special ritual, steeped in political history, takes place in the United States. That ritual is the reapportionment and redrawing of state and federal congressional maps. Redrawing legislative districts serves to keep representation relatively equal among voters, i.e., to ensure each district has an equal amount of voters. Following the release of the census data, the political party in power has incentive to redraw districts in a manner that maximizes party control and protects incumbents. This strategy is called gerrymandering. Partisan gerrymandering, despite criticism, is permissible so long as voters retain a relatively equal voice (equal populations per district) and there is no discriminatory purpose in the redistricting.

On November 12, 2014, the United States Supreme Court heard arguments in The Alabama Legislative Black Caucus v. Alabama. The Court is expected to answer whether the Republican-controlled Alabama legislature took part in racial gerrymandering when redrawing state senate and house districts. In Alabama, the racial gerrymandering claims will likely fail because the redistricting was done under racial considerations but with regard to the mandates of the Voting Rights Act of 1965 (VRA). As such, Alabama’s state legislature engaged in permissible partisan gerrymandering, void of discriminatory intent. Given the nature of the questions the justices asked during oral argument in the case this past November, the Court is likely to agree that the VRA is invaluable to the redistricting process and uphold the redistricting.

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No One Shareholder Should Have All That Power: When Delaware’s Entire Fairness Standard Applies to Controlling Shareholder Transactions

Author: Dan Stroh, Associate Member, University of Cincinnati Law Review

In recent years, Delaware courts have decided several important cases regarding the appropriate standard of review to apply when minority shareholders challenge actions taken by controlling shareholders.[1] In In re Crimson Exploration, the Delaware Court of Chancery created a clarifying framework for courts to analyze the propriety of shareholder involvement and control in the context of a corporate merger.[2] Merger transactions between large companies occur on a regular basis,[3] making any significant decision in this field very important, because the ability of shareholders to protect their interests is paramount in this area of business. The court’s decision clarified that shareholder “control” will be determined on an ad hoc basis, applying all relevant facts and circumstances, and it provided guidance as to when to apply “entire fairness” scrutiny to a board of directors’ decisions. Because corporate law decisions from Delaware are highly regarded due to the large number of corporations that choose to incorporate within the state,[4] the Court of Chancery’s Crimson decision will likely have significant implications for corporate law across the country.

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Specialty License Plates as Government Speech: How the Supreme Court Is Likely to Resolve a Five-Way Circuit Split

Author: Rebecca Dussich, Associate Member, University of Cincinnati Law Review

Currently, all fifty states in the U.S. require vehicles to be registered and fitted with a unique license plate. Historically, these plates were generic and distinguishable only by the series of letters and numbers used to identify the owner of the vehicle. However, with time, license plates were customized by state with distinctive markers such as state seals, slogans, flags, etc.[1] Beginning around the late 1980’s, states began issuing specialty license plates, decorated with emblems and verbiage designed by non-profit organizations and political groups, as a means to generate additional revenue.[2] As these plates became more popular, litigation around the First Amendment implications of specialty plates increased.[3] But, thirty years later, debate over this issue—whether specialty plates qualify as government or private speech and to what extent states have the right to champion one viewpoint or another via this forum—is anything but settled. In fact, the Supreme Court is set to readdress the matter later this year through review of a dispute out of the Fifth Circuit. And, although license plate text may seem like a mundane legal issue, the Court’s decision here could have potentially far-reaching implications.

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Restricting Content Without Restricting Content: Is Springfield’s Anti-Panhandling Ordinance Truly “Content-Neutral?”

Author: Collin L. Ryan, Associate Member, University of Cincinnati Law Review

Springfield, Illinois enacted an ordinance that prohibits panhandling within the city’s downtown historical district—an area that comprises “less than 2% of the City’s area but contain[s] its principal shopping, entertainment, and governmental areas, including the Statehouse and many state-government buildings.”[1] “The ordinance defines panhandling, in pertinent part, as [a]ny solicitation made in person . . . in which a person requests an immediate donation of money or other gratuity.”[2] The ordinance does, however, permit the use of signs with written requests for donations, as well as requests for donations at a later time.[3]

Plaintiffs, the recipients of citations for violating the ordinance, sought a preliminary injunction to prevent enforcement of the ordinance.[4] When considering whether to grant or deny a preliminary injunction, a court must consider, among other factors, whether plaintiffs are “likely to succeed on the merits.”[5] Here, the question of the plaintiffs’ “likely success on the merits” hinged upon the distinction between content-neutral and content-based restrictions on free speech.

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