Author Archive for david-opderbeck
Christianity, Law, and Contracts
posted by David Opderbeck
With all the chatter recently about Sarah Palin and the religious right, and Barack Obama and Jeremiah Wright, it’s all too easy to charicature the relationship between law and religion in general, and law and Christianity in particular. A splendid new book edited by John Witte and Frank Alexander, Christianity and the Law: An Introduction (Cambridge University Press 2008), seeks to recover the deep and nuanced connections between Christian social theory and Western jurisprudence. Unlike many polemical works written by today’s battling theonomists and strict separationists, Christianity and Law doesn’t dwell on defining founding myths about America and its original status as either a religious “city on a hill” or a walled garden in which enlightened rationalists could feel safe from the Church. Most of the essays in Christanity and Law dig deeper into the Jewish, Roman and medieval roots of Christian jurisprudence.
Among the many gems uncovered in this excavation is Harold Berman’s chapter “The Christian Sources of General Contract Law.” Berman summarizes those roots as follows:
November 7, 2008 at 12:25 pm
Posted in: Religion
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Bilski and the Drivers of Patent Law
posted by David Opderbeck
The Federal Circuit’s en banc opinion in Bilski is shaking up patent law with respect to business method patents. Some commentators suggest that Bilski does away with business method patents. Others suggest that clever claim drafting will circumvent most of the restrictions imposed by the opinion. In many fields not directly addressed in the opinion, including biotechnology, there is considerable uncertainty about what the opinion means.
I think the “who the [expletive deleted] knows” crowd is right. The majority’s “machine-or-transformation” test seems ill-suited to an age of digital and biological machines. Is a biological “DNA nanocomputer” a machine? If so, why is a human mind that comprehends a business method not also a “machine?”
In any event, an interesting dynamic underlying the various concurrences and dissents is how different members of the Federal Circuit view the primary drivers of patent law. Some of the judges seem to emphasize legislative history; others, Supreme Court precedent; and others, technological change. This chart summarizes how I think this dynamic plays out in the various opinions:
November 5, 2008 at 4:18 pm
Posted in: Intellectual Property
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Making History
posted by David Opderbeck
This morning I participated in history. I walked into the Midland Park, New Jersey Public Library, the polling site for my district. Three elderly ladies staffed the table where I signed the voter log and received a paper ticket indicating my eligibility to vote. I stepped up to the voting machine (there was no line) and handed another elderly attendant my ticket. She threaded the ticket onto a long string full of tickets. I walked through the curtain and paused for a moment to consider the privilege I was about to exercise. In a moment I would press a button to submit my vote for (arguably) the most powerful political job in the world. The campaign had been fierce and both sides offered wonderfully path-breaking choices — a black man for President or a woman for Vice President. There were no guns. There was no blood, no fear, no coercion. Just me and some buttons. I made my choices and left in peace. History won’t remember my vote, but it will remember this day.
November 4, 2008 at 10:31 am
Posted in: Politics
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Landmark Patent Damage Awards?
posted by David Opderbeck
Thanks for this opportunity to blog here at Concurring Opinions. On the eve of the Presidential election, I’d like to start with something that’s surely high on everyone’s priority list: patent reform. Well ok, it might not rank up there with the economy and the war, but some of us find it interesting.
Much of the debate about patent reform focuses on two related concerns: (a) the size of awards, particularly for “component” patents; and (b) non-practicing entities or “patent trolls.” This post discusses recent “landmark” awards that are often cited as examples of a system that is spinning out of control.
November 3, 2008 at 12:44 pm
Posted in: Intellectual Property
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