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Chapter 33 - Science, Technology, & Law in the 21st Century
Chapter 33
Science, Technology, & Law in the 21st Century
I. Key Words
Business system (p. 847) Police power (p. 825)
Clean Air Act (p. 839) Population Commission (PC) (p. 844)
Clean Water Act (p. 839) Prior art (p. 848)
Commerce clause (p. 819) Royalty (p. 845)
Compelling interest (p. 843) Secretariat (p. 830)
Copenhagen Accord (p. 841) Secretary general (p. 830)
Copyright (p. 854) Security Council (p. 830)
Dependency theory (p. 831) Supremacy clause (p. 821)
Digital Millennium Copyright Teaching, suggestions, or motivation
Act (DMCA) (p. 855) test (TSM standard) (p. 848)
Economic Espionage Act (p. 852) Trade secret (p. 852)
Faction (p. 818) Trademark (p. 853)
Fair use doctrine (p. 855) Transnats (p. 830)
General Assembly (p. 830) Treaty clause (p. 822)
General welfare clause (p. 820) Uniform Trade Secrets Act (p. 852)
Juriscience (p. 818) World Intellectual Property
Licensing agreement (p. 853) Organization (WIPO) (p. 855)
Necessary and proper clause (p. 820) World Intellectual Property
No Electronic Theft Act Organization Copyright Treaty (p.856)
(NET Act) (p. 855) World Intellectual Property
Obvious-to-try standard (p. 849) Organization Phonograms
Oil Pollution Act (p. 840) Treaty (p. 856)
Patent (p. 845)
II. Learning Objectives
1. Explain how the law permits the government to regulate science and technology.
2. Explain the purpose of the patent court pilot program.
3. Describe the function of the Office of Science and Technology Policy.
4. Outline the role of the National Science Foundation.
5. Define the function of the National Institutes of Health.
6. List Heilbroner’s three challenges that face the modern world.
7. Identify the purpose of the Federal Energy Regulatory Commission.
8. Define the role of the Nuclear Regulatory Commission.
9. Describe the functions of the Clean Air Act and the Clean Water Act.
10. Explain how the law protects patents, trade secrets, and copyrights.
III. Major Concepts
33-1 Governmental Authority Regulating Science and Technology
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Chapter 33 - Science, Technology, & Law in the 21st Century
The point at which science, technology, and the law intersect can be referred to as
juriscience. The power to regulate science and technology in the United States is shared
by the national government and the state governments. The national power emerges from
the U.S. Constitution. The five specific clauses that relate to the national power are the
Commerce Clause, the Taxation Clause, the Supremacy Clause, the Necessary and Proper
Clause, and the Treaty Clause. The Federal Judicial Center recently inaugurated a
decade-long patent court pilot program aimed at improving the way that patent law cases
are handled by the federal circuit. Another proposed solution that has been suggested for
dealing with the problems related to the complicated nature of scientific cases is the
establishment of a national science court. Once established, the federal science court
would have exclusive jurisdiction over issues involving scientific, engineering, medical,
and technological cases. On the state level, the capacity of the states to regulate science
and technology emerges from the state’s police power. Police power is the state’s ability
to uphold and sustain public health, safety, welfare, and morals. In the state courts, the
tradition of common law fills many law books with cases related to science, technology,
and engineering.
33-2 National Expenditures for Science and Technology
The federal government has been funding scientific and medical research for the past 150
years. That funding comes in many forms for a variety of purposes and with a high price
tag. Nevertheless, Congress and the president have agreed that the expenditure is
necessary to provide for national security, to promote the health and welfare of American
citizens, and to ensure the economic and social well-being of the nation. The federal
government has set up a number of agencies and institutes that support, assess,
coordinate, and fund scientific, medical, and technological research. The chief national
agencies for scientific, medical, and technological research are the Office of Science and
Technology Policy, the National Science Foundation, and the National Institutes of
Health.
33-3 International Authority Regulating Juriscience
There are four types of international nongovernmental organizations: (1) those that are
completely dependent upon the nation-states that make up their membership; (2) those
that are a semiautonomous organization; (3) those that are granted or earn entity status;
and (4) those that are unaffiliated transnationals that act as rogues or outlaws.
International power depends upon the nature of the NGO itself. The primary international
organizations under the umbrella of the UN are UNESCO and the World Health
Organization. The United Nations consists of three major subdivisions, the General
Assembly, the UN Security Council, and the Secretariat, which is the administrative
bureaucracy of the UN. UNESCO is responsible for creating outreach efforts to develop
educational, cultural, and scientific ties among the member nations of the UN. The World
Health Organization’s mission is to improve the health care available to all the people of
the world, but especially to those most at risk because of poverty or special health-related
threats.
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Chapter 33 - Science, Technology, & Law in the 21st Century
33-4 Facing Global Challenges
All of the work done by the government relates in some way to four challenges: (1) the
possibility of war, (2) the volatility of the marketplace, (3) the twin dangers of
environmental deterioration and energy depletion, and (4) the demographic crisis.
Dealing with all of these problems is part of the balancing act that is the law. The Federal
Energy Regulatory Commission (FERC) is responsible for regulating the transportation
and the wholesale price of natural gas and electricity sold for use in interstate commerce.
State utility commissioners regulate intrastate prices. The Nuclear Regulatory
Commission (NRC) is responsible for the licensing, construction, and operation of
nuclear reactors. On the international scene, the International Atomic Energy
Commission (IAEA) has oversight responsibility for matters dealing with nuclear power.
On the national level, the responsibility for the environment has been delegated to the
Environmental Protection Agency. Important subsidiary legislation includes the Clean Air
Act, the Clean Water Act, and the Oil Pollution Act. The regulation of the environment on
a global scale is charged to the United Nations Environment Program (UNEP).
33-5 Protecting Intellectual Property
Intellectual property involves an intangible ownership right in an invention, a process, a
computer program, a chemical formula, an original recorded work such as a book or an
article, and so on. A patent is a property right granted by the federal government to an
inventor. A patent gives the inventor the exclusive right to make, use, and sell that
invention for a period of 20 years (14 years if the patent covers a process). A trade secret
is a plan, process, device, procedure, formula, pattern, compilation, technique, program,
design, method, or improvement used in a business and disclosed only to those
employees who need to know it to do their jobs. A copyright is an intangible property
right granted to authors of literary, artistic, and musical compositions. A copyright gives
the owner the exclusive right to reproduce, publish, and sell his or her work in a fixed,
tangible medium of expression.
33-6 Developing Global Solutions
There are four factors to consider when attempting to solve the Heilbroner challenges.
They are (1) the necessity of focusing on long range results; (2) the need to create
partnerships among government, business, and the academic community; (3) the need to
appreciate the key role played in these projects by human resources: and (4) the need to
develop inventive ways to obtain capital investments in science and related projects. The
primary job of the proposed UN Economic Security Council would be to assess the
condition of the world economy especially as it relates to the issues of environment,
energy, and population. The council would then draw up long-range plans that would
involve specific projects for sustainable development, environmental cleanup, population
control, and energy enrichment.
IV. Outline
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Chapter 33 - Science, Technology, & Law in the 21st Century
I. Governmental Authority Regulating Science and Technology (33-1)
A. Introduction
1. Science, technology, and the law often interact with one another.
2. The point at which these disciplines interact can be referred to as juriscience or
techno-juriscience.
3. The powers to regulate, fund, and control science and technology in the United States
are shared to a degree by the national government and the state governments and to a
lesser extent by international convention.
B. The Constitution and Science
1. The Constitution is filled with provisions designed to minimize the power of factions
and preserve the power of the central government.
2. In relation to science and technology several constitutional provisions preserve or
extend the power of the central government.
C. The Legal Ecosystem as a Complex Adaptive System
1. A complex adaptive system (CAS) is a network of interacting conditions that
reinforce one another, while at the same time adjusting to change from agents outside
and inside the system.
2. As the law adapts to science and technology, it reinforces those practices that help the
system adapt and survive, while downplaying or sidestepping those that do not.
3. Examined are five constitutional clauses have been interpreted to either support the
expansion of federal power over techno-juriscience or to reduce that expansion when
necessary for the best interests of the entire system.
4. The Commerce Clause
a. The Commerce Clause has been used to empower Congress to regulate science
and technology.
b. Gonzales v. Raich, in which the Supreme Court decided that Congress had the
power to criminalize the sale and use of marijuana under the Controlled Substance
Act, underscored the almost unlimited authority of the federal government to
control science policy at every level of the national system.
5. The Necessary and Proper Clause
a. The court in People for the Ethical Treatment of Property Owners v. U.S. Fish
and Wildlife Service, refused to use the Necessary and Proper Clause to authorize
the federal government’s attempt to control the treatment of the prairie dog
population in the state of Utah.
b. The complex adaptive nature of the law means that, at some other level within the
legal CAS, the system will adapt to restore federal power over science.
6. The Taxation Clause
a. The Taxation Clause was one of the first clauses used to justify the expansion of
federal power over science and technology.
b. The Supreme Court relied on the taxation clause in National Federation of
Independent Business, et al., v. Sebelius in upholding that part of the Affordable
Care Act that fined people who did not buy health insurance.
7. The Supremacy Clause
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Chapter 33 - Science, Technology, & Law in the 21st Century
a. Although it does not expressly say this, the Supremacy Clause has been
interpreted to mean that the federal courts in general and the Supreme Court in
particular have the legal authority to short-circuit state statutes, regulations,
mandates, and executive orders that contradict the Constitution.
b. The Supremacy Clause has also been interpreted to mean that federal law can
preempt state law covering the same subject matter if criteria are met.
8. The Treaty Clause
a. Occasionally, treaties deal with patent and copyright law, nuclear test ban
agreements, genetic engineering agreements, and climate control.
b. Although the president is not required to consult with the Senate before a treaty is
negotiated or to have a senatorial representative on his or her diplomatic team, the
president is required to obtain the Senate’s approval before a treaty becomes the
law of the land.
c. Today, some of the most visible and controversial treaties that the president
negotiates involve juriscientific matters, especially when such matters are related
to climate change and environmental clean-up projects.
D. The Patent Court Pilot Program
1. Most of the time when science and technology cases come before a judge at the trial
level, the judge must unravel technical and scientific concepts for which he or she is
neither educated nor experienced.
2. Steps toward a national science court have been taken by the Federal Judicial Center.
3. The center recently inaugurated a decade-long patent court pilot program aimed at
improving the way that patent law cases are handled by the Federal Circuit.
E. A Federal Science Court
1. Should the patent court pilot program prove successful, it may lead to the
development of a court that is fully dedicated to hearing all science- and
technology-related cases.
2. As things develop, the court might be subdivided into layers, each of which would be
responsible for a different discipline.
3. Commentators who support the national science court argue that the complex nature
of today’s scientific caseload is beyond the expertise of most judges who sit on the
bench at the trial level.
4. Those who oppose the national science court contend that training sessions for judges
would be cost prohibitive and that subdivisions handling different disciplines would
create unnecessary and expensive duplication.
F. Residual State Regulatory Power
1. The capacity of the states to regulate science and technology emerges from the states’
police power, meaning the states’ ability to uphold and sustain the public health,
safety, welfare, and morals.
2. The state government along with its various departments and divisions from counties
or parishes; to cities, towns, and villages; to zoning districts and school boards, all
have some job to play in the regulatory process.
G. Judicial Power and the Common Law
1. While many common-law cases are preempted when the federal courts overturn a
case or when Congress passes a statute that preempts a state law, state courts are
justifiably hesitant to relinquish long-standing common law values.
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Chapter 33 - Science, Technology, & Law in the 21st Century
2. State courts frequently discover imaginative ways to interpret federal guidelines
within the framework of that state’s established legal institutions.
II. National Expenditures for Science and Technology (33-2)
A. The History of Scientific Expenditures
1. Large expenditures for scientific research have a long history in the United States, extending
back to the establishment of a group of land grant colleges launched in 1862 under the Morrill
Act which had the purpose of launching a set of partnerships among institutions of higher
learning and the farming community.
2. After the Second World War, the National Science Foundation was formed to provide
government dollars for technological and scientific research projects, many of which would be
located in the nation’s colleges and universities.
B. Office of Science and Technology Policy
1. The goal of the office is to advise the president on technological and scientific matters
so that he or she can make informed decisions about federal programs that impact
science and technology.
2. The office is responsible for managing science and technology policy, especially as
that policy impacts the federal budget.
3. The office integrates science policy at every level of governmental planning from the
federal to the local level.
4. The office assesses the effectiveness of the overall federal science and technology
program.
C. Chief Technology Officer of the United States
1. The primary job of the CTO is to coordinate advances in technology and engineering
as they relate to the practical jobs of improving the American economy, managing
medical and health care costs, and preserving national security.
2. The job of the CIO is to build an integrated technology policy designed to meet the
needs of the national government.
D. National Institutes of Health
1. Their operational mission is to conduct research into all aspects of human life and
health and to apply that understanding to cure illnesses, to alleviate disabilities, and to
lengthen human life.
2. The National Institutes also promote practical research that will reduce health care
costs in order to improve the economic stability of the United States and provide
funding for research into the origin, prevention, and cure of diseases related to
environmental problems.
E. National Science Foundation
1. The National Science Foundation (NSF) is a federally funded agency created to
support scientific research, to stimulate the national economy, and to safeguard
national security.
2. A substantial portion of its budget is spent in research at American colleges and
universities.
III. International Authority Regulating Juriscience (33-3)
A. Introduction
1. There are four types of international nongovernmental organizations.
a. Those that are completely dependent upon the nation-states that make up their
membership.
b. Those that are semiautonomous organizations.
c. Those that are granted or earn entity status.
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distribution without the prior written consent of McGraw-Hill Education.
Chapter 33 - Science, Technology, & Law in the 21st Century
d. Those that are unaffiliated transnationals that act as rogues, outlaws, criminals, or
terrorists.
B. International Nongovernmental Organizations
1. The NGOs that are completely dependent upon their member nations, such as the
G-8, are aggregates or conglomerates of the membership.
2. The second type is a semiautonomous organization, such as the UN, that is initially
made up of nation-states but which is actually more than the membership and is,
therefore, capable of carrying out actions absent the consent of and sometimes in
defiance of the members.
3. The third type is one that achieves or is initially granted entity status, and, as such,
can act independently because they are not at the mercy of the member states.
4. Some commentators would add a fourth category of NGO—the “transnat,” or
transnational organizations, including terrorist groups, drug cartels, slave traders, and
pirates.
C. The United Nations
1. The UN wields a great deal of soft power on the international scene.
2. The UN consists of three central governing agencies, the General Assembly, the
Security Council, and the Secretariat.
D. International Problems
1. Many juriscientific issues related to international problems are handled by the UN’s
Economic and Social Council (ECOSOC).
2. Another key agency is the UN Educational, Scientific, and Cultural Organization
(UNESCO) which promotes integrated activities in science, education, and culture
and is responsible for urging nations to preserve their cultural heritage.
3. Other key organizations are the World Health Organization, The International Atomic
Energy Commission, the United Nations Environment Program, and the World
Intellectual Property Organization.
E. UN Educational, Scientific, and Cultural Organization
1. UNESCO became a highly politicized organization.
2. It went so far as to demand redistribution of global resources from the developed to
the underdeveloped world.
3. A group of underdeveloped nations, referring to themselves as the Group of 77,
developed a manifesto called the New International Economic Order, which was
endorsed by UNESCO.
F. The World Health Organization and the Ebola Crisis
1. The WHO’s mission is to improve the health care available to all the people of the
world, but especially to those most at risk because of poverty or special health-related
threats.
2. The WHO supports health and medical research programs at the international level,
all of which are aimed at promoting the basic component parts of medical and health
care.
3. WHO has had challenges and also achievements.
4. Perhaps the most visible and active involvement of the WHO in international health
care problems in recent years has concerned the Ebola epidemic.
5. Under International Health Regulations, WHO has no official enforcement
mechanism.
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Chapter 33 - Science, Technology, & Law in the 21st Century
6. In relation to the Ebola epidemic, WHO convened a panel and obtained approval of
the use of experimental treatments if certain conditions were followed.
IV. Facing the Global Challenges (33-4)
A. Introduction
1. Work done by the government addresses four challenges:
a. The possibility of war
b. The volatility of the marketplace
c. The twin dangers of environmental deterioration and energy depletion
d. The demographic crisis
2. Dealing with all of these problems is part of the balancing act that is the law.
B. Heilbroner’s Global Challenges
1. Robert Heilbroner wrote An Inquiry into the Human Prospect.
2. He argues that if the following three problems are not handled, humanity is doomed:
a. The possibility of war, especially nuclear war
b. The challenge of uncontrolled population growth
c. The destruction of the environment
3. Heilbroner sees economic vitality as the challenge that underlies all three and as the
ultimate solution.
C. Regulating Energy Problems
1. The Federal Energy Regulation Commission
a. The Federal Energy Regulatory Commission (FERC) is responsible for regulating
the transportation and the wholesale price of natural gas and electricity sold for
use in interstate commerce.
b. The commission also licenses hydropower project proposals for the construction
of interstate gas pipelines and liquefied natural gas terminals along with other
duties.
c. The agency has been assigned the task of assisting with the modernization of the
nation’s electric power grid through development of a smart grid using
state-of-the-art technology.
2. Nuclear Regulatory Commission
a. The Nuclear Regulatory Commission (NRC) is responsible for the licensing,
construction, and operation of nuclear reactors and also for the use, transportation,
handling, and disposal of nuclear material.
b. The NRC has evolved into an agency of rules and regulations for the security of
nuclear materials to prevent the theft of that material, especially theft of that
material, by potential terrorists.
c. The agency is charged with developing standards and protecting patients from
radiation overdoses.
d. The NRC does not regulate nuclear weapons, military reactors, or space vehicle
reactors.
3. International Atomic Energy Agency
a. The International Atomic Energy Agency (IAEA) is responsible for making
certain that, on a global basis, nuclear energy is used only for peaceful purposes.
b. IAEA’s program is based on four basic component parts: setting up guidelines for
the effective, economical, and environmentally safe production of nuclear energy;
promoting the peaceful application of nuclear science technology; providing
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Chapter 33 - Science, Technology, & Law in the 21st Century
technical and engineering support on nuclear energy to member nations; and
distributing scientific and technological knowledge about nuclear power.
c. The agency must guard against the misplacement, loss, or theft of nuclear
materials and equipment and make certain that such equipment and materials do
not fall into the hands of those who would use them for military or terrorist
operations.
d. IAEA record-keeping processes are not foolproof, and the IAEA inspection has
been less than 100 percent effective on a number of occasions.
e. The IAEA is also a clearing house of information, research, and data on all phases
of nuclear energy.
D. Regulating Environmental Problems
1. The Environmental Protection Agency (EPA)
a. The EPA was created to carry out the provisions of the National Environmental
Policy Act and other major environmental laws and executive orders dealing with
air, water, solid waste, toxic substance, and noise pollution.
b. The EPA’s primary responsibilities are to conduct research on all aspects of
pollution, set and enforce pollution control standards, monitor programs to
determine whether pollution abatement standards are being met, and administer
grants to assist states in controlling pollution.
2. The Clean Air Act
a. The Clean Air Act is designed to limit pollution from vehicles and from stationary
sources such factories and manufacturing centers.
b. Under provisions in the act, if requirements are met, private parties are
empowered to sue violators.
3. The Clean Water Act
a. The Clean Water Act sets requirements for limiting the pollution of the nation’s
water sources a c cording to a schedule and based on the most effective
technology currently available.
b. The Clean Water Act also permits citizens suits against violators and against the
administrator of the act for not properly carrying out his or her responsibilities.
4. The Oil Pollution Act
a. The act is designed to encourage companies that ship, drill for, and store oil to
develop and use the most up-to-date equipment and the most effective safety
measures possible.
b. Sometimes the act requires that specifically named technological and engineering
steps be taken.
c. Any company responsible for a spill will be compelled to pay all expenses related
to the cleanup and will be subject to a heavy fine.
5. United Nations Environment Program (UNEP)
a. The UNEP, which has its central offices in Kenya, was the first UN institution
located in a developing nation-state.
b. The agency is responsible for stimulating global awareness of environmental
issues and for coordinating international efforts to solve the problems associated
with environmental deterioration.
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Chapter 33 - Science, Technology, & Law in the 21st Century
c. The UNEP organizes the efforts of several UN agencies as they interface with
governments and private establishments, such as youth groups and women’s
organizations.
6. United Nations Conference on Environment and Development (UNCED)
a. The UN has also taken steps to combine environmental and energy concerns
together under the auspices of the UNCED.
b. UNCED, known more popularly as the Earth Summit program, is designed to
integrate economic development and environmental protection into a single
well-coordinated strategy that will promote sustainable development in
developing nations with the assistance and cooperation of the developed nations
of the globe.
c. One international meeting resulted in the Kyoto Protocol requiring the reduction
of carbon dioxide emissions below levels recorded in 1900 although key polluters,
the United States, China, and India, refused to go along with the Protocol.
7. The Copenhagen Accord
a. The Copenhagen Accord which was negotiated by five nation-states, including the
key nations that did not sign the Kyoto Protocol, the United States, China, and
India.
b. The accord operates outside the jurisdiction of the United Nations.
c. The accord includes a pledge made by the signatories to reduce greenhouse gases
and to provide $30 billion annually to a fund designed to help developing nations
balance sustainable development and environmental protection especially as it
relates to GHGs.
d. There is no way to enforce the accord’s provisions because it lies outside UN
control.
E. Regulating Population Growth
1. Neither the U.S. nor much of the developed world is a threat in regard to excessive
population growth.
2. The least developed nations have a higher population growth.
3. A consequence of more people is fewer job holders.
4. Unemployment leads to a higher crime rate.
5. Famine and wars of redistribution are concerns.
6. The U.S. has not imposed legal incentives for birth control and recognizes the right of
citizens to procreate without governmental interference.
7. The U.S. Supreme Court, however, has said that the government can interfere in the
child bearing decision of a woman if it has a compelling interest to do so.
8. The international community seems more ready to deal with runaway population
growth than the U.S.
9. The United Nations has been involved in dealing with population growth since the
creation of the Population Commission (PC) in 1947.
10. The PC is charged with helping to implement the UN World Population Plan of
Action which provides an extensive list of recommendations that suggest action in
relation to population related questions.
V. Protecting Intellectual Property (33-5)
A. The Nature of Intellectual Property
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Chapter 33 - Science, Technology, & Law in the 21st Century
1. Intellectual property involves an intangible ownership right in an invention, a process,
a computer program, a chemical formula, an original recorded work such as a book or
an article, and so on.
2. People owning intellectual property rights have the power to give permission to use
the property in exchange for consideration, usually referred to as a royalty.
3. The power of the government to grant the exclusive rights to intellectual property is
expressly mentioned in Article I, Section 8, Clause 8 of the Constitution.
B. Protecting Patents
1. A patent is a property right granted by the federal government giving an inventor the
exclusive right to make, use, and sell an invention for twenty years or for fourteen
years if the patent covers a process.
2. A patent must involve patentable subject matter; it must consist of some nonobvious,
new, and useful feature not previously known or understood; and the patent
application must be so specific that individuals who are educated and experienced in
the field can create the device on their own.
3. Laws of nature, natural phenomena, and abstract ideas cannot be patented.
4. Neither mathematical formulas nor mathematical algorithms are patentable.
5. Issues have arisen in regard to software programs although today more than 80
percent of patent claims involving computers have been upheld, including those
involving software alone.
6. Until recently a business system was considered unpatentable.
7. In a recent case, a computer system for analyzing information about a group of
mutual funds was declared patentable by a federal court.
8. In regard to the first requirement for a patent, sometimes usefulness is not clear.
9. In regard to pass the second requirement for a patent, novelty, the new device or
process must be original.
10. In order to pass the third test, nonobviousness, the changes or improvements must not
be apparent to a person of ordinary skill in the field.
a. The patent review process became more difficult for patent holders recently when
the U.S. Supreme Court revised the traditional test of nonobviousness.
b. The Supreme Court created a more lenient test than the previous test referred to as
the teaching, suggestion, or motivation test, or the TSM standard.
c. The TSM standard compelled those who challenged a patent to demonstrate that
the so-called innovation would have been discernible to anyone exposed to the
same teaching session, the same offhand suggestion, or perhaps even the same
motivation that the inventor had experienced.
c. The Court suggested that challengers of patents should consider types of evidence
other than that involved in the TSM test.
d. The Court also introduced a variation on the TSM test called the obvious-to-try
standard under which if the challenger can demonstrate that anyone of ordinary
skill could see that it would have been obvious to try such an innovation, the
innovation would be labeled as obvious, and the invention would not be
patentable.
e. The decision to make the test of patentability harder will have a direct effect on
computer-related cyber-inventions.
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Chapter 33 - Science, Technology, & Law in the 21st Century
11. To satisfy that a patent application describe the invention, many inventors of
computer software patent applications are reluctant to include source code and instead
provide either a flowchart or some other visual diagram that reveals the details of the
process.
C. The America Invents Act (AIA) of 2011
1. Congress amended the patent law for the first time in over sixty years when, in 2011,
it passed the America Invents Act (AIA).
2. The act adopts the “first-to-file” patent process.
a. This is a key provision to bring U.S. patent law in line with international patent
law.
b. It will likely increase the practice of provisional filing.
3. The law sets up a new dispute resolution process.
a. There are several new ways to mount challenges.
b. The two most important are the (1) pre-issuance submission challenge and (2) the
post-grant review process.
D. Protecting Trade Secrets
1. There are reasons to avoid filing for a patent.
a. When a patent expires, the invention is in the public domain; and anyone can use
it.
b. Because of the specificity required in a patent application, anyone can see what
had been developed.
c. Someone might see the next leap in technology before the patent owner.
2. A trade secret is a plan, process, device, procedure, formula, pattern, compilation,
technique, program, design, method, or improvement used in a business and disclosed
only to those employees who need to know it to do their jobs.
3. The Uniform Trade Secrets Act sets up two conditions that must be met for a plan,
process, program, and so on to gain trade secret status.
a. The plan, process, or program must gain financial worth simply because it is a
secret and cannot be applied by others who might use it to compete with the
owner of the secret.
b. The alleged secret must be the subject of reasonable attempts to protect it from
those who would use it in a way that would financially hurt the owner of the
secret.
4. Various states have enacted trade secret statutes designed to protect trade secrets
within the state’s borders, and many are patterned after the Uniform Trade Secrets
Act.
5. The federal government passed the Economic Espionage Act providing criminal
sanctions for the theft of trade secrets and the use of fraud to obtain trade secrets.
6. Some inventors may file for patent protection because of ambiguities about the trade
secret status of a computer program.
a. Computer software placed on the open market for wide distribution cannot claim
trade secret status.
b. Trade secret status is available to companies that distribute their software on a
limited, highly selective basis through licensing agreements.
7. A trademark is a symbol, picture, image, name, device, color, or word that a business
uses to distinguish itself from its competitors.
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Chapter 33 - Science, Technology, & Law in the 21st Century
8. Once a business has established that it owns a trademark, that business has the
exclusive right to use that mark to identify its products and services, as well as the
business itself.
9. The law provides businesspeople with several ways to establish trademark ownership:
common law, state law, and federal law.
10. At the federal level, the Trademark Protection Act, also known as the Lanham Act,
was passed in 1946 to provide for the registration of trademarks with the federal
government.
11. The Trademark Dilution Revision Act established several new provisions assisting
trademark owners such as allowing an injunction to stop the unauthorized use of a
trademark through a demonstration that the effectiveness of the original mark would
probably be diminished.
E. Protecting Copyright
1. A copyright is an intangible property right granted to authors of literary, artistic, and
musical compositions giving the owner the exclusive right to reproduce, publish, and
sell his or her work in a fixed, tangible medium of expression.
2. No filing is necessary for a copyright.
3. A computer program is a fixed medium of expression and subject to copyright
protection.
4. The law allows some copying to be done without permission under the fair use
doctrine with the following four factors considered.
a. The purpose and character of the use, including whether such use is of
commercial nature or is for nonprofit educational purposes.
b. The nature of the copyrighted work.
c. The amount and substantiality of the portion used in relation to the copyrighted
work as a whole.
d. The effect of the use upon the potential market for, or value of, the copyrighted
work.
5. The No Electronic Theft Act (NET Act) is a federal law granting limited immunity to
persons who duplicate copyrighted works on the Internet.
a. Users only have immunity so long as they do not profit from the copying process.
b. The act makes it illegal to create a duplication (including an electronic
duplication) of a copyrighted work for commercial profit or private financial gain
by copying or handing out one or more copies of one or more copyrighted
productions within a single 180-day period.
6. The Digital Millennium Copyright Act (DMCA) is designed to combat scientific
advances that permit users to override protection systems and makes it illegal to use
technological means to bypass, erase, or override programs designed to prevent
access to a copyrighted work.
7. Another provision of the DMCA makes it illegal to use any means to circumvent a
program intended to frustrate the copying of a copyrighted work.
8. The World Intellectual Property Organization (WIPO), a part of the United Nations,
supported the development of two international treaties designed to deal with
electronic copyright problems.
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Chapter 33 - Science, Technology, & Law in the 21st Century
a. The World Intellectual Property Organization Copyright Treaty gu r antes that
copyright holders will be allowed to use the Internet to post their works with full
copyright protection.
b. The World Intellectual Property Organization Phonograms Treaty , gives
copyright holders the right to copy, publish, and distribute their works in any way,
including by making video copies, audio copies, and encrypted copies.
c. The DMCA was written to implement the provisions of these treaties into law in
the United States.
VI. Developing Global Solutions (33-4)
A. Four Basic Requirements
1. The government must identify the parameters of the problem involving science and
technology.
2. Four pertinent issues are as follows:
a. The necessity of focusing on long-range results;
b. The need to create partnerships among government, business, and the academic
community;
c. The need to appreciate the key role played in these projects by human resources;
d. The need to develop inventive ways to obtain capital investments in science and
related projects.
3. Hybrid projects including both short term results and long term goals are advisable.
4. Partnerships are valuable because they make use of the talents, abilities, and
experience of researchers at various levels of the scientific community and in a wide
variety of settings.
5. For long range plans and scientific partnerships to be effective, they must be run by
people who are well educated, who work well together, and who have a sense of
loyalty to the project and to the group.
6. The National Science Foundation and the National Institutes of Health provide
millions of dollars of support for scientific and medical research programs.
7. The World Health Organization supports health and medical research programs at the
international level.
8. Other organizations are also involved in support of research.
B. UN Economic Security Council
1. A problem is that there is no centralized control point for projects, at least not
internationally.
2. A model exists by combining the work of the Commission on Sustainable
Development with the work of the UN Security Council resulting in a proposed UN
Economic Security Council.
3. An agency, such as the proposed ESC that is run by unbiased, well-trained,
independent, and responsible individuals would be able to draw up tough-minded but
fair action plans that must be implemented to save the planet.
4.
V. Background Information
A. Cross-Cultural Notes
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Chapter 33 - Science, Technology, & Law in the 21st Century
1. An article from CNN Tech titled “World Population Projected to Reach 7 Billion in
2011” provides that “A staggering 97 percent of global growth over the next 40 years
will happen in Asia, Africa, Latin America and the Caribbean, according to the
Population Reference Bureau's 2009 World Population Data Sheet.”
2. In Europe and Japan, patent applications are made public. This system prevents
disputes by allowing third parties to offer evidence during the patent examination.
3. Japan has developed a computerized system for filing and searching for patents.
Previously, a patent search could take as long as thirty-six months.
4. Brazil does not recognize patents on drugs.
5. The characters, visual features, and names of comic strips are protected by
trademarks. Licensing programs have been established that allow certain companies
to borrow the trademarks for advertising purposes. The worldwide popularity of
comic strips make these trademarks—from Peanuts chopsticks in Japan to Garfield
frozen lasagna in Brazil—a big international business.
B. Historical Notes
1. PBS has a site tracking world population growth throughout the world titled “Human
Numbers through Time” at
http://www.pbs.org/wgbh/nova/earth/global-population-growth.html.
2. The Department of Energy has a historical timeline available at
http://www.energy.gov/management/office-management/operational-management/hist
ory/doe-history-timeline. . Through clicking on the timelines, the reader can obtain
information such as that on August 2, 1939, Albert Einsteiin wrote President Franklin
D. Roosevelt regarding the importance on nuclear chain reactions and the possibility
that the research could lead to the development of powerful bombs.
C. State Variations
1. The Tennessee Supreme Court in Loveall v. American Motor Honda Co., 694 S.W.2d
937 (Tenn. 1985), ruled that the trial court should have entered a protective order
protecting from further dissemination certain trade secret information disclosed in the
discovery process. The court modified the trial court’s order and limited application
to the protective order to apply only to competitively sensitive information not
introduced into evidence. The court refused to place any restriction on the
dissemination of information introduced at trial or obtained other than through
discovery.
VI. Terms
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1. Public domain is a term that refers to property rights belonging to the community at
large. Property in the public domain is unprotected by copyrights or patents and can
be used by anyone.
VII. Related Cases
1. In 2007, the British Court of Appeals held that Random House had not breached a
copyright when its author, Dan Brown, wrote “The Da Vinci Code.” The authors of a
book called “The Holy Blood and the Holy Grail” sued Random House claiming that
Brown stole their idea when he wrote his popular book. The court said that copyright
protects an author’s labor in researching and writing a book, but does not extend to
facts, ideas, and theories.
2. In Bowman v. Monsanto Conditions., 133 S.Ct. 1761, (2013), a farmer, rather than
directly purchasing Roundup Ready (and resistant) seeds made by Monsanto,
purchased soybeans from prior harvests of other local farmers from a warehouse. The
warehouse seeds were generally used for human or animal consumption. The farmer,
however, planted these seeds, sprayed them with an herbicide, retained the ones that
were resistant to the herbicide, and replanted those. Monsanto sued and won. The
Supreme Court refused to allow the farmer to rely on the doctrine of patent
exhaustion standing for the concept that the authorized sale of a patented article gives
the purchases, or any subsequent owner, the right to use it.
VIII. Teaching Tips and Additional Resources
1. The web site for the United States Patent and Trademark Office providing extensive
information regarding patents and trademarks can be found at http://www.uspto.gov/.
2. The United States Copyright Office has information about copyrights and how to
register at http://www.copyright.gov/.
3. Extensive information regarding Thomas Edison and his inventions can be found at
http://edison.rutgers.edu/mission.htm.
4. The FBI has information on intellectual property theft available at
http://www.fbi.gov/about-us/investigate/cyber/ipr/ipr.
5. Information from Interpol regarding cybercrime including recent news on
cyberattacks and efforts to stop them is available at
http://www.interpol.int/Crime-areas/Cybercrime/Cybercrime.
6. Information on the various aspects having to do with the world’s population is
available from the United Nations at http://www.un.org/esa/population/.
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distribution without the prior written consent of McGraw-Hill Education.
Chapter 33 - Science, Technology, & Law in the 21st Century
7. Extensive information regarding environmental concerns is available from the
Environmental Protection Agency at http://www.epa.gov/.
8. Information regarding health and dangers is available from the Centers for Disease
Control and Prevention at http://www.cdc.gov/.
9. Information on indoor air pollution is available from Medline Plus, a service of the
U.S. National Library of Medicine, at
http://www.nlm.nih.gov/medlineplus/indoorairpollution.html.
10. An article from National Geographic titled “Chinese Air Pollution Deadliest in
World, Report Says” is available at
http://news.nationalgeographic.com/news/2007/07/070709-china-pollution.html.
An article from The Economist titled “Mapping the Invisible Scourge” reports on
pollution in China including report that breathing Beijing’s air is the equivalent to
smoking almost 40 cigarettes a day.
11. An article from CNN titled “Top 20 Most Polluted Cities in the World” citing cities
with the greatest annual measurements of fine particles along with videos on air
pollution is available at
http://www.cnn.com/2014/05/08/world/asia/india-pollution-who/.
12. Extensive information regarding various types of air pollution is available from the
American Lung Association at http://www.lungusa.org/healthy-air/.
13. The World Health Organization, http://www.who.int/en/, provides data and
information on many health topics of worldwide interest.
14. USA Today reports on the “9 Most Counterfeited Products in the USA” at
http://www.usatoday.com/story/money/business/2014/03/29/24-7-wall-st-counterf
eited-products/7023233/.
15. The FDA reports on counterfeit medicine at
http://www.fda.gov/Drugs/ResourcesForYou/Consumers/BuyingUsingMedicineS
afely/CounterfeitMedicine/.
16. It takes the U.S. Patent Office approximately eighteen months to grant a patent. After
one is granted, there is further delay while the patent is recorded and made available
in the patent library.
17. For answers to frequently asked questions on ideas, inventions, and patents by a
registered patent agent log onto http://patent-faq.com/.
18. Trademarks can be established for phrases that function as symbols or as identifying
devices. For example, American Express has a trademark on the slogan “Don’t Leave
Home Without It,” and the New York Times has trademarked “All the News That’s
Fit to Print.”
19. To help students understand the difference between trademarks, copyrights, and
patents, divide the class into three groups. Ask each group to choose one of the
subjects. Then have the groups think of ten items that could be categorized as either
trademark, copyright, or patent.
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20. Protecting copyrights, trademarks, and patents is a business in itself. For example,
registered patent lawyers are available for conducting patent searches.
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distribution without the prior written consent of McGraw-Hill Education.
