Andrew Michaels
580 California St., Suite 400
San Francisco, CA, 94104
Abstract Innovation, Virtual Ideas, and Artificial Legal Thought
2018, Social Science Research Network
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Abstract
PHILOSOPHICAL GUIDE TO A FUTURE WORTH WANTING 126 (2016) ("we can no longer afford the modern illusion that our technosocial innovations are conductive to human mastery"); see also KENTARO TOYAMA, GEEK HERESY: RESCUING SOCIAL CHANGE FROM THE CULT OF TECHNOLOGY x (2015) ("World leaders are convinced that technology will make the world a better place. But does technology really cause positive social change?").
References (20)
- See, e.g., SAP Am., Inc. v. InvestPic, LLC, 890 F.3d 1016, 1018 (Fed. Cir. 2018) ("No matter how much of an advance in the finance field the claims recite, the advance lies entirely in the realm of abstract ideas, with no plausibly alleged innovation in the non-abstract application realm. An advance of that nature is ineligible for patenting.").
- Cf. Jedi Techs., Inc. v. Spark Networks, Inc., No. 1:16-1055-GMS, 2017 WL 3315279, at *8 (D. Del. Aug. 3, 2017) ("although the '977 patent recites an abstract idea, it should not be found invalid if there is evidence of an inventive concept or contribution").
- See, e.g., Berkheimer v. HP, Inc., 890 F.3d 1369, 1374 (Fed. Cir. 2018)
- Lourie, J., concurring in the denial of the petition for rehearing en banc) ("I believe the law needs clarification by higher authority, perhaps by Congress, to work its way out of what so many in the innovation field consider are § 101 problems"); cf. Andres Sawicki, The Central Claiming Renaissance, 103 CORNELL L. REV. 645, 647 ("The consensus view is that the Court's eligibility jurisprudence is impenetrable.");
- Ryan Davis, Iancu Decries 'Tortured Exercise' of Patent Eligibility Analysis, LAW360 (June 12, 2018, 9:02 PM), https://www.law360.com/articles/1052844/iancu- decries-tortured-exercise-of-patent-eligibility-analysis;
- Robert Stoll, Alice Angst Intensifies, LAW360 (March 23, 2018, 1:01 PM), https://www.law360.com/articles/1025590/alice-angst-intensifies.
- See Paul M. Janicke, A Need for Clearer Language about Patent Law, 11 JOHN MARSHALL REV. OF INTELL. PROP. L. 457 (2012). functionality versus being directed to an abstract idea") (quoting Enfish, LLC v. Microsoft Corp., 822 F.3d 1327, 1335 (Fed. Cir. 2016)).
- See id. at *13 ("Nor do the asserted Patents disproportionately preempt the use of all virtual reality products.").
- See supra note 102. Despite explicitly disclaiming the normative, Casey and Niblett do contend that the "micro-directive" "[capture] the benefits of both rules and standards without incurring the costs."). Casey & Niblett, supra note 100, at 1402. See also id. at 1402 n.1 (citing Louis Kapalow, Rules Versus Standards: An Economic Analysis, 42 DUKE L. J. 557, 561 n.6 (1992)). There is at least one persuasive alternative account of the rules and standards dialectic that Casey and Niblett do not address. See Pierre Schlag, Rules and Standards, 33 UCLA L. REV., 379 (1985) (discussing an alternative account of the rules and standards dialectic that Casey and Niblett do not address).
- Busch & De Franceschi, supra note 97, at *15-16.
- Casey & Niblett, supra note 99, at 438.
- Casey & Niblett, supra note 100, at 1444.
- Pierre Schlag, Hohfeldian Analysis, Liberalism and Adjudication (Some Tensions), THE LEGACY OF WESLEY HOHFELD: EDITED MAJOR WORKS, SELECT PERSONAL PAPERS, AND ORIGINAL COMMENTARY, 115
- See, e.g., Joseph Stromberg, Is GPS ruining our ability to navigate for ourselves?, VOX (Sept. 2, 2015, 11:31 AM), available at https:// www.vox.com/2015/9/2/9242049/gps-maps-navigation ("we have good reason to believe that when we blindly follow GPS for direction, we're not exercising crucial navigational skills -and many of the scientists who study how the human brain navigates are concerned").
- See BARBARA EHRENREICH, BRIGHT-SIDED: HOW POSITIVE THINKING IS UNDERMINING AMERICA (2009). See also Albert J. Matricciani, Law & The Culture of Civility, 36 MD. B. J. 12, 14 (2003) (discussing the value of thought and the loss of personal space that has come with 21st century technology.).
- See Anthony D'Amato, Can/Should Computers Replace Judges, 11 GA.
- L. REV. 1277, 1299 (1977) ("A second cost will be to render areas of the law uninteresting.").
- Cf. Pasquale, supra note 25, at manuscript 56 (explaining that articulable legal standards "help us formulate convincing explanations and justifications of legal decisionmaking, without foreordaining outcomes in advance.").
- See D'Amato, supra note 117, at 1299 ("At present, many people are immediately interested, whether financially or from a teaching or research point of view, in conflicts of laws.").
- Id. at 1301.