LLM Theses and Essays

Patent Infringement under the Doctrine of Equivalents in the Federal Circuit

Seun Guyn Shin — Tue, 10 Apr 2012 13:18:27 PDT

When a device performs substantially the same function, in substantially the same way, to obtain substantial the same result as a patented device, the patent is infringed under the doctrine of equivalents. This doctrine developed to prevent minor and unsubstantial changes in a device from being used to avoid liability for patent infringement. The Court of Appeals for the Federal Circuit has addressed the major issues involving the doctrine of equivalents, and these decisions, as well as others, are examined. Specifically, the relationship between the doctrine of equivalents and the statutory equivalents of §112(6) of the Patent Act of 1952 is analyzed. Additionally, the “element by element” approach and “invention as a whole” test for the doctrine of equivalents are contrasted, and the Pennwalt decision on which is the proper method is reviewed. Finally, the effect of doctrine of prosecution history estoppel and the reverse doctrine of equivalents on the doctrine of equivalents is considered.

A Review of Taiwan’s Fair Trade Law Draft by Referring to the U.S. Antitrust Laws

Min-Huang Su — Tue, 10 Apr 2012 13:18:25 PDT

Due to the rapid industrialization and commercialization of Taiwan’s economy, many of Taiwan’s old laws regulating economic activity have been rendered obsolete. The lack of proper regulation of modern economic activities has led to the formation of many monopolies and oligopolies in Taiwan which practice price-fixing and output restrictions. The Taiwanese government has responded to this problem with a new antitrust statute, known as the Fair Trade Law (FTL), and a draft FTL was formally adopted in 1986. The strengths and weaknesses of the draft FTL are analyzed with regards to monopolies and oligopolies, mergers and combinations, and concerted actions. Using U.S. antitrust law as a guide, alternatives are proposed to eliminate the draft FTL’s significant drawbacks.

Approach to Horizontal Restraint: Reliance on Exemption from Antimonopoly Act in Japan as Contrasted with Antitrust Laws in the United States

Yutaka Sumii — Tue, 10 Apr 2012 13:18:24 PDT

American politicians and businessmen have criticized the Antimonopoly Act, Japanese antitrust legislation, for allowing horizontal restraints on trade known as cartels. This paper compares and contrasts U.S. antitrust laws with regards to horizontal restrains on trade from that of Japan. A highlighted difference between U.S. and Japanese antitrust legislation is the use of exemptions. The Antimonopoly Act provides for more exemptions immunizing a cartel, such as exceptions for cartels formed during a depression or when the defendants have little market power, than does similar legislation in the U.S. To illustrate how the exemption for cartels in a depressed industry applies in Japan, a case study of the Japanese shipbuilding industry is examined.

Promotion of U.S. Foreign Investment in Selected Eastern European Countries in the 1990’s. Comparative Analysis of Foreign Investment Laws in Poland, the Soviet Union, Yugoslavia, and Hungary and Possible Impact of the U.S. Law on Their Operation

Dorota Szewc — Tue, 10 Apr 2012 13:18:22 PDT

Perestroika describes the historical revolution of political and economic reforms which were aimed at accelerating economic growth, democratization, and openness. As the failings of the socialist economic model became more apparent, Eastern European nations were motivated to enact laws allowing foreign investment. A comparative analysis of these foreign investment laws in Poland, the Soviet Union, Hungary, and Yugoslavia is made. Even with the reforms in Eastern Europe, U.S. law may affect the actions of American investors in Eastern Europe. Specifically, U.S. export control laws effect the trade between the U.S. and countries still deemed to be communist, and U.S. antitrust laws apply if the foreign investment occupies the whole domestic market in the U.S.

The Tax Expenditure Budget: A Typological Analysis

Jochen Winter — Mon, 09 Apr 2012 11:46:22 PDT

The Tax Expenditure Budget has been part of the budgetary process for more than ten years. This study attempts to review the academic and administrative pros and cons. It focuses on the effect of the tax Expenditure Budget on tax legislation. Finally, it determines the role of the Tax Expenditure Budget in today’s fiscal policy.

The Foreign Direct Investment Controls

Ruey-Fen Sung — Mon, 09 Apr 2012 11:37:00 PDT

Foreign direct investment is the primary engine of economic development. The factors influencing a country's governmental policy of foreign direct investment at an international level constitute a wide and complex subject. This subject in my country,Taiwan, Republic of China, has been receiving increasing attention, for we now face the problems of balance of payments deficits, how to strengthen the N.T. dollar and improve the functions of foreign direct investment etc. In early 1970, the United States had problems similar to those which my country faces now; therefore, I will examine the "Foreign Direct Investment Regulations" (FDIR) of U.S. enacted in 1968 to evaluate how the United States coped with the problems now facing my country. I will analyze circumstances under which the United States implemented and revoked the FDIR as well as review the FDIR's contents and effects.

Toward A Comprehensive Theory of Standard Form Contract Law: A Synthesis of the Best from Germany and America

Dagmar Thurmann — Mon, 09 Apr 2012 11:36:58 PDT

The theory of this paper is simple: the law has to deal with 20^th Century real contracts instead of blindly applying 19^th Century classical “bargained for” contract law. Not to face the reality of the modern “unbargained for” adhesion contract disappoints the justified expectations of both parties, that is, the one drafting standard form terms and the one submitting to them. The subject of standard contract forms is appropriate for a comparative analysis between German and American contracts law.

From Freedom of Commercial Speech to Consumer's Freewill: Comparative Advertising as a Watchdog of Consumer's Interests

France Michel — Mon, 09 Apr 2012 11:16:17 PDT

According to the first amendment’s freedom of commercial speech theory, comparative advertising should represent the ultimate in terms of “right to speak” and “right to listen” in the marketplace of goods. Although the first right is severely regulated by government and private bodies in order to insure a greater protection to consumers exercising the second; this goal is not always achieved. Thanks mainly to the FTC’s initiatives and the support of its private pupils, consumer protection has evolved from “caveat emptor” to “caveat vendor.” The practice of comparative advertising might also make its contribution to the expansion of advertising’s Latin vocabulary with the addition of a third expression, for competitors’ use only: “cave canem.”

Small High Technology Companies and Public Policy: A Legal Analysis

Werner W. Mielke — Mon, 09 Apr 2012 11:16:15 PDT

This study analyzes the legal side of the public policy regarding high technology companies. It examines the role of small high technology firms in the national economy. The needs and problems of these firms are analyzed and categorized in order to have an analytical framework in which to examine their relationship with the prevailing legal environment. Finally, on the basis of selected laws and regulations, legal barriers and disincentives and the way to reduce them are examined as well as legal provisions intended to provide incentives and assistance.

Bad Check Crime: A Comparison Study between the United Arab Emirates and the United States

Abdurahim Y.M. Sharaf — Mon, 09 Apr 2012 11:16:12 PDT

This thesis analyzes the law relating to bad checks in the United States and the United Arab Emirates. The objective is to examine the major similarities and differences between the two countries and whether these differences might be lessened. The focus is on the criminal offense of writing checks with insufficient funds, or the "bad check crime."

Freedom of Expression in England and the United States: A Comparative Study, with Particular Reference to Restrictions Imposed by Means of Prior Restraint

Peter G. Shears — Mon, 09 Apr 2012 11:16:10 PDT

Freedom of expression is both a basic right and a basic need in all democratic societies. Without it, democracy itself cannot function. This is a comparative study. The protection, or more often the restriction, of freedom of expression in England before the American Revolution is considered first. Then two chapters outline the development and extent of freedom of expression, first in America, then in England, from 1776 up to the present day. There follows a direct comparison in two separate areas: the Fair Trial-Free Press tension which exists between the interests of those involved in judicial proceedings, and their rights to a fair and impartial hearing, on the one side, and the interests of the press and other media in reporting judicial proceedings on the other.

Taxation Aspects of Foreign Investments in India

Udai V. Singh — Mon, 09 Apr 2012 11:16:08 PDT

This paper will outline, discuss and suggest changes in various provisions of the Income Tax Act, 1961, applying to foreign investments. Chapter II of this paper explores the general underlying principles of the Indian tax system. Chapter III discusses the tax liability of foreign personnel in India and special tax incentives granted to foreign technicians. Chapter IV discusses the system of corporate taxation or “resident” and non-resident” companies and tax liability of foreign collaborators. Special attention is paid to the liability arising out of various trading activities of non-resident companies in India and many problems of judicial determination relating to such activities. Investment and savings incentives are discussed in Chapter V. Chapter VI discusses to what extent U.S. inventor is entitled to tax relief under U.S. foreign tax credit laws. The paper concludes with taking an overall view of the tax impact on foreign investments and to what extent foreign companies can benefit from India’s effort to attract investments.

Balancing the Management and Property Rights of the Employer against Employee's Section 7 Rights

Leonard J. Spooner — Mon, 09 Apr 2012 11:16:05 PDT

This thesis demonstrates the analysis used by the National Labor Relations Board and the courts in their task of drawing a line at which the employee’s rights begin under labor legislation and the employer’s prerogative ends.

Legal Aspects of the New International Economic Order - Moving Towards a Viable Framework for Development in Sub-Saharan Africa

Idara Ekaete Bassey — Wed, 22 Feb 2012 06:40:51 PST

While the primary objective of the United Nations is to maintain peace and security, Article 55 of the Charter also tasks the U.N. with facilitating higher standards of living, full employment, and social and economic development. To achieve this goal, the U.N. adopted three instruments which make up the New International Economic Order (NIEO). This thesis assesses the goals for development in the Third World, focusing on sub-Saharan Africa, and the NIEO’s capacity to serve in that regard. Sub-Saharan Africa is larger in land area than the U.S. and has abundant natural resources and agricultural land, so the basis for prosperity are present. While the NIEO, provides a starting point for changing the economic situation of sub-Saharan African at the international level, the regional and intranational challenges that have plagued the continent are still a barrier to success. The thesis also analyzes the internal restructuring that must take place in African governments which would assist in growing economic partnerships with the rest of the international community.

The Effect of Bankruptcy on Executory Contracts in General and on Licensing Agreements of Intellectual Property in Particular

Alexandra Baumgartner — Wed, 22 Feb 2012 06:40:48 PST

11 U.S.C. § 365(a) provides that a bankruptcy trustee, subject to the court’s approval, may assume or reject any executory contract. What section § 365 does not provide is a clear definition for the term “executory contract.” This thesis covers the different definitions of executory contracts proposed by courts and scholars and common grounds for assumption and rejection by the trustee. The author in particular analyzes how § 365 interacts with licensing agreements. If a licensor files for bankruptcy and the license agreement is rejected, the licensee’s rights to use the licensed intellectual property are in jeopardy. This situation is analyzed under both former law and the 1988 amendment found in § 365(n), which provides greater protection to the licensee. Conversely when a licensee files for bankruptcy, assumption of the license agreement by the trustee would be cause for concern for the licensor. These concerns are highlighted as well as various methods for the licensor to avoid the licensing agreement.

The Application of U.S. Antidumping Law to the Imports from The People's Republic of China: Review of Evolution and Need for Revolution

Li Yang — Wed, 22 Feb 2012 06:30:45 PST

Despite the dramatic increase in trade between the U.S. and China since the normalization of relations between the countries in 1979, China is still confronted with U.S. laws that hinder trade. The most serious threat to Sino-U.S. trade is the U.S. antidumping law, which authorizes the imposition of a duty on imported merchandise that the Department of Commerce determines is sold at less than fair value, if the U.S. International Trade Commission determines the U.S. industry in that field is materially injured. This law and cases interpreting it are examined. With its low wage rate and lack of cost accounting, China’s non-market economy is especially susceptible to charges of unfair trade practices; however, China’s economy is in transition with recent reforms. These economic reforms are detailed, and the author concludes that U.S. antidumping laws should be amended as China’s economy changes and to reflect the post Cold War era.

The Antidumping Laws and Principles under the GATT: Protecting Protection, the “Dunkel Drafts” and After the Uruguay Round

Heejang Yoo — Wed, 22 Feb 2012 06:30:42 PST

The antidumping laws of the U.S., Canada, Australia, European countries, and other developing countries are seen as protectionist of those nation’s local industries at the expense of foreign exporters. The fact that foreign exporters cannot obtain a meaningful judicial review of these antidumping laws only compounds the matter. This thesis urges nations to adopt multilateral competition-oriented antidumping polices and to abandon producer-oriented protectionist laws. Even if the notion of trade liberalization has been discredited under the GATT, the author advocates a return to such a goal in the context of antidumping laws. In reaching this conclusion, this thesis analyzes current antidumping laws and their short comings in a modern economy under the main principles of the GATT. The recent Uruguay Round Negotiations at GATT headquarters in Geneva and any changes brought by it are reviewed. Also, the merits of the Dunkel Draft proposed at the Uruguay round are discussed.

Policy and Legal Aspects of Technology Transfer from the United States to China

Yongman Zhang — Wed, 22 Feb 2012 06:30:40 PST

One of the major international transactions today is the transfer of technology between nations. Because the U.S. and China are on opposite ends of the technology spectrum, one an advanced technological nation and the other technologically backward, they make excellent trading partners of technology. China’s history of self-reliance and its modern Open Door policy to realize its Four Modernizations are reviewed. This policy of openness is the key to the modernization of China’s economy through the importing of foreign technology. Likewise, the evolution of U.S. policy toward trade with China is analyzed. The U.S. has moved from a policy of total embargo to one of open trade with China, and this shift is examined with a focus on the Export Administration Act as amended in 1985, the Export Administration Regulations, and the multilateral control mechanism CoCom. Additionally, the importance of the Chinese contract when exporting technology to China is discussed. While the Tiananmen Square Massacre may have caused a temporary setback in China’s internal policy and with its relations with the U.S., the increase in the trade of technology between the two nations will not only help modernize China but also lead to peaceful relations between the countries.

Judicial Protection of the Individual Against Administrative Actions in the United States and in Germany

Joerg Nikolaus Uhl — Wed, 22 Feb 2012 06:08:14 PST

From the Preamble of the U.S. Constitution which begins “We the people…,” the focus of the American legal system is clear. The individual and personal freedom are the primary concern for protection under U.S. law. Conversely, the German legal system places its focus on the preservation of the democratic system. This difference and the weight the U.S. places on separation of powers, whereas the executive and legislative branches are closely related in Germany, have combined to produce many differences between the U.S. and German political and legal systems. This paper analyzes these differences, especially with regards to administrative agencies and judicial review. However despite these differences, the main goal of both legal systems is the protection of the individual and democratic values, which does lead to some similarities between the political and legal systems of the two nations.

Legal Implications of the Virtual Enterprise

Jan Gerhard Werner — Wed, 22 Feb 2012 06:08:12 PST

With technologies changing so rapidly today, being competitive in the market often requires corporations to form alliances and new types of relationships. One of these relationships is a Virtual Enterprise, which are similar to joint ventures and strategic alliances but are less formal, short lived, and highly flexible. Virtual Enterprises are especially useful when developing or producing computer products, biotechnology, telecommunications, industrial equipment, and consumer electronics. The characteristics of a Virtual Enterprise along with the special problems attorneys face in supporting their development, maintenance, and termination are analyzed in this thesis. Due to the informal and fast change nature of Virtual Enterprises, attorneys must learn to supply unconventional and flexible legal services; however, they must not forget the importance of the formation of contracts to support the enterprise and protect the partners.