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I constructed a database of every Supreme Court opinion implicating patent, copyright, trademark, or trade secret issues from July 1, 2002 through June 30, 2016. The database entries are the Supreme Court’s final decision in each matter; certiorari dispositions are not included. I removed from the database any cases that, though referring to intellectual property law, did not actually decide any intellectual property issue. For example, Illinois Tool Works, Inc. v. Independent Ink, Inc. concerned whether there should be a presumption of market power under antitrust law where the product in question is subject to patent protection.7 Though this case bears a relation to patent protection, its result did not turn on or affect patent law. The final Supreme Court database includes forty-four intellectual property decisions and is summarized in Appendix A. Using similar methods, I developed a database of every federal statute concerning patent, copyright, trademark, or trade secret rights during the same time period. As with the Supreme Court data, I removed statutes that did not actually affect patent, copyright, trademark, or trade secret doctrine. For example, the Lanham Act is the primary statute providing for Federal trademark protection in the United States.8 Portions of the Lanham Act regulate nontrademark activities, such as false advertising.9 Legislation that affected only the false advertising portions of the Lanham Act was excluded from the database. The final dataset includes forty-three legislative entries for the pertinent period and is summarized in Appendix B.10 The following sections analyze the contours of intellectual property activity in these Supreme Court and congressional datasets.

A. SUPREME COURT DECISIONS

In April 2020 the UK Supreme Court had reason to discuss the difference between ‘significant’ and ‘substantial’ in the context of what is a ‘significant reduction in life expectancy’. The court said that ‘like the skin of a chameleon, the adjective takes a different colour so as to suit a different context’.

The word ‘significant’ often means something less than the word ‘substantial’. But in context it can mean ‘substantial’.

Hovenkamp et al., supra note 38, at 1758 (footnote omitted). O'Rourke and Brodley rightly note that the rule is ambiguous, because a "significant" likelihood of success means different things to different people. Maureen A. O'Rourke & Joseph A. Brodley, An Incentives Approach to Patent Settlements: A Commentary on Hovenkamp, Janis and Lemley, 87 MINN. L. REV. 1767, 1783 (2003).

VI. The statute is unclear as to how taxpayers must comply with Subparts (A) and (B) given the missing conjunction between the two clauses, rendering the statute void in violation of the Due Process Clause

"A statute is ambiguous if it can be reasonably interpreted in more than one way."105 A statute containing two alternatives that are connected by the disjunctive "or" generally means [*41] that the listed alternatives must be treated separately, whereas a statute that uses the conjunctive "and" means that both alternatives must be met.106 Applying these rules of statutory interpretation to Section 145(a)(5) means that if "or" is the missing conjunction between Subparts (A) and (B), the requirements of either clause, if met, would require a corporation to include an affiliated group in its Alaska return. However, if "and" is used, the requirements of both clauses must be met before the corporation is required to include an affiliated group in the return.

When Adam Smith spoke about an “invisible hand,” he was talking about a good thing – the way that free markets harness the laws of competition, supply and demand and self-interest to improve the economy. But he also could have been thinking of another law. The law of unintended consequences: that actions of people, and especially of governments, always have unanticipated effects. Sometimes these effects can be perverse, reflecting a profound failure of “second-order thinking” (in other words, thinking ahead about “how could this possibly go wrong?”).

On January 5, 2023 – a day that may go down in IP infamy – we saw two bold actions. First, the “Protecting American IP Act” became law; and second, the Federal Trade Commission (FTC) proposed a new rule that would invalidate noncompete agreements across the United States. But wait, you might say, that actually sounds great! What’s the problem with protecting American IP, and making the rest of the country join California in unleashing talent to go where it likes? Well, don’t be too hasty. Stay with me on this, and you will see just how shortsighted our government can be.

Target 16.1 Significantly reduce all forms of violence and related death rates everywhere (b) Proposed indicators: Proposed indicators Possible alternative indicators Comments (Linkages, disaggregation and sources) 1. Violent injuries, deaths and homicide rates (per 1,000,000 habitants) Linkages: 11.7 Disaggregation by: homicides by gender/ injuries by type, sex and age/geographical breakdowns TBC (Some disaggregated data for most populous cities) Sources: Interpol, UN Crime Trends Survey, UNODC, WHO Mortality Database. Limitations: Data partially available. 2. Refugees and internally displaced persons (IDPs) caused by conflict and violence Linkages: N/A. Disaggregation by: By territory of residence (or refugees by country / territory of asylum), location of residence (within country), country of origin (refugees), gender, age and population type. Sources: UNHCR. Comments: For the target to be SMART it requires clarification of what ‘significantly reduce’ means.

The term "significant" means that the claimed limitation must be "'something more than a minor limitation of use'" ( Colvin v Maille, 127 AD2d 926, lv denied 69 NY2d 611, quoting Licari v Elliott, supra, at 236; see, Kordana v Pomellito, 121 AD2d 783, 785, appeal dismissed 68 NY2d 848). Mere use of the conclusory word "significant" in the affidavit of a treating physician is not sufficient to establish serious injury (see, Lopez v Senatore, 65 NY2d 1017, 1019; Leschen v Kollarits, 144 AD2d 122).

Over the past 20 years, the overall number of intellectual property cases filed in the U.S. courts has increased dramatically. However, after sharp increases in the early 2010s, patent infringement case filings now have started to fall, copyright case filings have fluctuated, and trademark case filings have held steady. Most intellectual property cases are concentrated in a handful of states.

The framers of the U.S. Constitution believed that codifying intellectual property (IP) rights at the federal level was important to economic independence, innovation, and domestic growth. IP rights were established in the U.S. Constitution in Article I, Section 8, which declares that Congress has the power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” This ”IP Clause”1 text has been attributed to James Madison and James Pinckney, who both submitted proposals related to IP rights at the Constitutional Convention of 1787 in Philadelphia. The IP Clause was approved unanimously by the delegates without debate.2 George Washington also was a proponent of establishing IP rights at the federal level, which he considered necessary for the country to achieve economic independence.3

Brock and Kaitlyn look to the word “should” in the phrase “in the event any of my children should predecease me” and claim the district court improperly found the word looked to the future. They claim the word should be interpreted as the past tense of “shall” to imply a duty or obligation. See Black's Law Dictionary 1379 (6th ed.1990). Looking at the phrase as a whole, however, rather than at a single word, we determine the phrase is considering possible future events. See In re Estate of Grulke, 546 N.W.2d 626, 627 (Iowa Ct.App.1996) (noting we must ascertain a testator's intent from the entire will).

4 The legal question to be resolved by the court is whether the word "should" in the May 18 order connotes futurity or may be deemed a ruling in praesenti.14 The answer to this query is not to be divined from rules of grammar;15 it must be governed by the age-old practice culture of legal professionals and its immemorial language usage. To determine if the omission (from the critical May 18 entry) of the turgid phrase, "and the same hereby is", 1 -- makes it an in futuro ruling - i.e., an expression of what the judge will or would do at a later stage - or 2 -- constitutes an in in praesenti resolution of a disputed law issue, the trial judge's intent must be garnered from the four corners of the entire record.16

Footnote 13:

3 The verb “should” has various shades of meaning. In its ordinary meaning it does not express certainty as the word “will” sometimes does. In the telegram under consideration it seems to be used in the sense that, from the anticipated profits, plaintiff might receive a bonus of $25 to $50 per month. It is nothing more than an expression of opinion, with no definite assurance that such would be the result. The expression, “twenty–five to fifty dollars per month extra,” adds nothing to the certainty or definiteness of the proposal but is merely suggestive. The whole expression, “a part of profits that should mean from twenty–five to fifty dollars per month extra, to our minds cannot possibly be construed as guaranty or an unconditional promise to pay a minimum of $25 per month or a maximum of $50 per month out of the profits, in addition to the agreed salary. It is merely suggestive. Moreover, no method is provided for determining what the share of plaintiff in the profits might be; no per cent. is named. Whether net or gross profits or whether profits from the whole store or only the furniture department, were to be the basis of settlement, is all left to conjecture. There is no stipulation as to when settlements were to be made, which, obviously, might be either weekly, monthly, annually, or whenever the employment should cease. The expression in the telegram, “if you want to come and work hard, we will take care of you in good shape,” avails plaintiff nothing from the standpoint of law. The whole telegram is one well calculated to mislead, whether deliberate or not. Morally, defendant was under some obligation to increase plaintiff's salary in the event the concern prospered and plaintiff worked hard; but, legally, we are confronted with an insurmountable obstacle in so far as affording relief to plaintiff is concerned. It is an elemental and fundamental rule of law that a contract, to be valid, “must be certain and unequivocal in its essential terms, either within itself or by reference to some other agreement or matter.” 6 R. C. L. 644; 9 Cyc. 245; 18 R. C. L. 494; Burks v. Stam, 65 Mo. App. 455; Blaine v. Knapp & Co., 140 Mo. 241, 41 S. W. 787; United Press v. New York Press Co., 164 N. Y. 406, 58 N. E. 527, 53 L. R. A. 288; Varney v. Ditmars, 217 N. Y. 223, 111 N. E. 822, Ann. Cas. 1916B, 758.

There is, of course, no bar to the Supreme Court adopting a Court of Appeal's reasoning as its own. Yet there is legitimate reason to question whether that was what the Supreme Court intended in 1983. First, as just shown, only the least authoritative of the three sources cited **385 actually supports the word “must,” while the two Supreme Court decisions employ “should.” Second, barely a month later, the Supreme Court—speaking though the same justice—filed another decision which used the “should” formulation from the 1955 Allen decision as quoted in Abbott.20 Third, the 1983 Allen decision involved retirees (and Flournoy the widow of a retiree), who historically receive a heightened degree of judicial protection. (See fn. 19, ante.) Fourth, and most significantly, the “must” formulation has never been reiterated by the Supreme Court, which has instead uniformly employed the “should” *699 language from the 1955 Allen decision. (Olson v. Cory, supra, 27 Cal.3d 532, 541, 178 Cal.Rptr. 568, 636 P.2d 532 [“Although an employee does not obtain any ‘absolute right to fixed or specific benefits ... there [are] strict limitation[s] on the conditions which may modify the pension system in effect during employment.’ [Citation.] Such modifications must be reasonable and any ‘ “changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages” ’ ”]; Legislature v. Eu (1991) 54 Cal.3d 492, 529–530, 286 Cal.Rptr. 283, 816 P.2d 1309 [quoting Olson]; City of Huntington Beach v. Board of Administration (1992) 4 Cal.4th 462, 472, 14 Cal.Rptr.2d 514, 841 P.2d 1034 [“changes in a pension plan which result in disadvantage to employees should be accompanied by comparable new advantages,” citing Allen v. City of Long Beach, supra, 45 Cal.2d 128, 131, 287 P.2d 765].)

It thus appears unlikely that the Supreme Court's use of “must” in the 1983 Allen decision was intended to herald a fundamental doctrinal shift. “Should,” not “must,” remains the court's preferred expression. And “should” does not convey imperative obligation, no more compulsion than “ought.” (Lashley v. Koerber (1945) 26 Cal.2d 83, 90, 156 P.2d 441; see People v. Webb (1986) 186 Cal.App.3d 401, 409, fn. 2, 230 Cal.Rptr. 755 [“the word ‘should’ is advisory only and not mandatory”].) In plain effect, “should” is “a recommendation, not ... a mandate.” (Cuevas v. Superior Court (1976) 58 Cal.App.3d 406, 409, 130 Cal.Rptr. 238.)

The interpretation of this section, which appears to be a question of first impression, turns upon the meaning of the word “should” in the phrase “[a]ny partial abatement or reduction of child support should not exceed 50% of the child-support obligation during the extended visitation period.” In Little v. State, 261 Ark. 859, 554 S.W.2d 312 (1977), the supreme court ruled that the trial court, giving an instruction on circumstantial evidence, had not misled the jury by using the word “should” instead of “must” in stating that circumstances should point to and be consistent with guilt but should be inconsistent with any other reasonable hypothesis. The Little court opined that use of the word “must” would have been preferable to the use of “should,” but the court noted that the *396 words are often synonymous. 261 Ark. at 884, 554 S.W.2d at 324, citing Rodale, The Synonym Finder 780 (Special Deluxe Ed.).

Similarly, we hold that the word “should” is equivalent to the word “must” as used in the phrase “any partial abatement or reduction of child support should not exceed 50% of the child-support obligation during the extended visitation period.” We hold that the 50% limitation in Administrative Order No. 10 is mandatory: abatement or reduction of child support during an extended visitation period cannot exceed 50% of the child-support obligation during the extended visitation period.

The specific grounds of objection are that the court should have used the word “shall” instead of “should,” that the word “should” is merely advisory, and that the jury was left at its discretion in the matter of reduction of the damages. It has been said that the word “should” is the past tense of the word “shall,” and we think, in the connection in which it was used, the jury understood that it meant more than simply advisory.

In the case of Smith v. State, 142 Ind. 288, 41 N. E. 595, the Supreme Court of Indiana held that it was more imperative than the word “may.”

As regards the mandatory character of the rule, the word “should” is not only an auxiliary verb, it is also the preterite of the verb, “shall,” and has for one of its meanings, as defined in the Century Dictionary: “Obliged or compelled (to); would have (to); must; ought (to); used with an infinitive (without to) to express obligation, necessity or duty in connection with some act yet to be carried out.” We think it clear that it is in that sense that the word “should” is used in this rule, not merely advisory. When the judge in charging a jury tells them that, unless they find from all the evidence, beyond a reasonable doubt, that the defendant is guilty of the offense charged, they should acquit, the word “should” is not used in an advisory sense, but has the force or meaning of “must,” or “ought to,” and carries with it the sense of *313 obligation and duty equivalent to compulsion. A natural sense of sympathy for a few unfortunate claimants who have been injured while doing something in direct violation of law must not be so indulged as to fritter away, or nullify, provisions which have been enacted to safeguard and protect the welfare of thousands who are engaged in the hazardous occupation of mining.

Australia, Switzerland, Canada, Mexico, Germany, India, and some 20 other stats also have federal forms of government today. In the United States, the term ‘Federal Government’ is often used to refer to the National Government, but note that the 50 state governments are unitary in structure, not federal.

The United States Federal Government is established by the US Constitution. The Federal Government shares sovereignty over the United Sates with the individual governments of the States of US. The Federal government has three branches: i) the legislature, which is the US Congress, ii) Executive, comprised of the President and Vice president of the US and iii) Judiciary. The US Constitution prescribes a system of separation of powers and ‘checks and balances’ for the smooth functioning of all the three branches of the Federal Government. The US Constitution limits the powers of the Federal Government to the powers assigned to it; all powers not expressly assigned to the Federal Government are reserved to the States or to the people.

A. The government of the United States is not a single official entity. Nor is it when it is referred to as the federal government or the U.S. government or the U.S. federal government. It’s just a government, which, like those in all countries, has some official bodies that act and operate in the name of government: the Congress, the Senate, the Department of State, etc.

Three other points merit mention in this discussion of collective decision-making. First, both the formal and the secret constitutions allocate power over foreign relations and defense to the central government, to, that is, the United States of America visualized as a single entity. What, however, is "the" United States? The question has never been definitively answered; and indeed has seldom been asked in judicial opinion or scholarly discourse.42 Asked another way, the question is this: Where does sovereignty lie in the American polity? The formal constitution is supposedly based on popular sovereignty, with ultimate power resting in the people. That, however, is far from accurate. Proof positive that sovereignty lies in the "state" came when General Robert E. Lee surrendered at Appomattox: "the people" of the South were not to be permitted to exercise their "sovereignty." The powers of the national government are supposedly only those delegated to it, either expressly or impliedly. But that is scarcely accurate, as 200 years of constitutional development attest. The Framers of the formal constitution established a governmental system that, as Justice Robert Jackson commented, would ensure that the dispersed powers of the federal government would be integrated into a workable government. "Separateness but interdependence, autonomy but reciprocity" was the constitutional command.43 The meaning is unmistakable: "the" United States is a single metaphysical entity, encompassing state, society, and government in one artificial being. These terms are not synonymous. The state is the fundamental entity; government its apparatus; and society is composed of the individuals and groups governed. Much like the business corporation, the state-"the" United States-is an artificial construct, more a method than a thing. It exists in constitutional theory-in, for example, the state secrets privilege in litigation-even though judges and commentators alike often confuse the term with government and with society. A legal fiction that by itself can do no act, speak no work, and think no thought, the state (like the corporation) has "no anatomical parts to be kicked or consigned to the calaboose; no soul for whose salvation the parson may struggle; no body to be roasted in hell or purged for celestial enjoyment." 44 Despite loose language to the contrary from executive branch lawyers and even the Supreme Court, "the" state or "the" government-or "the" United States-is not to be equated with the executive branch. Nor with any one branch, for that matter; each branch is part of an indivisible whole.

‘Government’ is a collective noun, meaning the whole body

That fact does not distinguish Goodyear. A generic term may suggest that it is associated with a specific entity. That does not render it nongeneric. For example, “Wine, Inc.” implies the existence of a specific legal entity incorporated under the laws of some State. Likewise, consumers may perceive “The Wine Company” to refer to some specific company rather than a genus of companies. But the addition of the definite article “the” obviously does not transform the generic nature of that term. See In re The Computer Store, Inc., 211 U.S.P.Q. 72, 74–75 (TTAB 1981). True, these terms do not carry the exclusivity of a domain name. But that functional exclusivity does not negate the principle animating Goodyear: Terms that merely convey the nature of the producer's business should remain free for all to use. See 128 U.S. at 603, 9 S.Ct. 166.