Emory Law Journal

Volume 65Issue 2
The 2015 Randolph W. Thrower Symposium, The New Age of Communication: Freedom of Speech in the 21st Century

Redundant Prior Art References and Their Prejudicial Effects on Post-Issuance Review Petitioners

Bob High | 65 Emory L.J. 581 (2015)

The recent passing of the America Invents Act came with the creation of three brand new forms of post-issuance review: inter partes review, post-grant review, and covered business method patent review. Through the first three years, inter partes review has been widely utilized, while covered business method patent review has received considerable attention as well. However, the PTAB has created a procedural tool not explicitly included in either the statutes or regulations. The issue with this procedural tool is the costly estoppel effects it could have on the petitioner in the event of an unfavorable decision either at the PTAB or Federal Circuit level. This Comment suggests two potential solutions: (1) the PTAB could conditionally institute proceedings on all grounds it agrees show a reasonable likelihood of success, have the petitioner choose what it thinks are the strongest grounds for unpatentability, and continue the proceeding based on those grounds; or (2) interpret the statute so that determinations of redundancy are appealable to the Federal Circuit, allowing the petitioner to subsequently assert those grounds of unpatentability if it can demonstrate that they are not redundant.

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A Troubling Collision: Overbroad Coercion Statutes and Unchecked State Prosecutors

Elizabeth Rosenwasser | 65 Emory L.J. 619 (2015)

Overbroad laws trespass on First Amendment rights of expression. Overbroad coercion statutes, which prohibit communication limiting a listener’s legitimate options, exist in a variety of states and municipalities. By failing to narrowly prohibit unlawful coercive speech, these overbroad statutes criminalize a broad range of protected First Amendment speech. These statutes can be particularly problematic for political actors because they can criminalize political bargains and discussion characteristic of the American political system. As the crime control model has grown, state prosecutors’ charging power and discretion have vastly increased. This Comment argues for a judicial and legislative response to this problem and explains why legislators and judges should have a strong interest in invalidating and narrowing these overbroad coercion statutes. Ultimately, this Comment proposes a framework through which judges should invalidate these statutes and describes why legislators have a duty both to the Constitution and to themselves to proactively narrow these statutes to avoid overbreadth.

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