Topicality - JDI 2024

T—JDI
T Strengthen Protection—Starter
File Notes
This topicality file contains the argument (and answers to it) that the Hatch Waxman affirmative is untopical (not an example of an action within the resolution) because it does not change enforcement surrounding patents. The words in the resolution this file focuses on are “strengthen” and “protection” (bolded below for reference). The argument is strengthening protection requires increasing enforcement through either injunctions or damages (terms explained below).
The United States federal government should significantly strengthen its protection of domestic intellectual property rights in copyrights, patents, and/or trademarks.
Some terms you might encounter in these cards:
Injunction (similarly injunctive relief): this is when a court orders that someone (or something in the case of a company) has to stop doing something for more information see: https://www.law.cornell.edu/wex/injunction
Damages: These are things that a party has to give to the other side in a legal proceeding, this is normally money for more information see: https://www.law.cornell.edu/wex/damages#:~:text=In%20civil%20cases%2C%20damages%20are,contract%20or%20violated%20some%20right.
Judicial: this means related to or done by courts see: https://www.merriam-webster.com/dictionary/judicial
Infringement (similarly misappropriation or misuse): used to describe violating what is covered by a patent for more information see: https://www.law.cornell.edu/wex/patent_infringement
Remedies: essentially these are legal ways to enforce things for more information see https://www.law.cornell.edu/wex/remedy
TRIPS: an acronym for The Agreement on Trade-Related Aspects of Intellectual Property Rights is a World Trade Organization (WTO). This is important for the international and trade-based parts of IP, for more information see: https://en.wikipedia.org/wiki/TRIPS_Agreement
Lanham Act: the main federal statue (meaning the main law passed by Congress) for trademarks for more information see: https://en.wikipedia.org/wiki/Lanham_Act
Consider the following three broad patent areas below:
The neg wants to say that the topic should be focused on the third one (“punishment”) whereas the aff will want to say that the neg’s idea for the topic is bad because it gets rid of the first two (likelihood and scope) which are very important.
Neg
1NC Shell
Next Off is Topicality
Interpretations:
“Strengthen” means to make stronger or reinforce
Dictionary.com No Date (“strengthen,” https://www.dictionary.com/browse/strengthen)
strengthen
verb (used with object)
1. to make stronger; give strength to.
Synonyms: support, fortify, reinforce, buttress
2. Phonetics. to change (a speech sound) to an articulation requiring more effort, as from fricative to stop or nongeminate to geminate.
“Protection” means enforcement of IP exclusivity
Dagne 14, LL.B; LL.M; JSD; Assistant Professor of Law, Thompson Rivers University Faculty of Law, Kamloops, BC. (Tesh, 2014, ARTICLE: PROTECTING TRADITIONAL KNOWLEDGE IN INTERNATIONAL INTELLECTUAL PROPERTY LAW: IMPERATIVES FOR PROTECTION AND CHOICE OF MODALITIES, 14 J. Marshall Rev. Intell. Prop. L. 25, 30, Lexis accessed online via KU libraries)
The word "protection" often creates confusion as it means very different things in strict intellectual property law and in ordinary usage. "Protection" in intellectual property is usually perceived as a means enforcing private, exclusive economic rights to a specific creation in order to prevent others from using or reproducing it. "Protection" of TK, on the other hand, implies protecting the whole social, ecological, cultural and spiritual context of that knowledge so that it continues to be produced and reproduced.
“Enforcement” refers to an injunction or damages against a patent infringer
Freilich 20, Associate Professor, Fordham Law School. (Janet, “ARTICLE: Patent Shopping”, 10 U.C. Irvine L. Rev. 619, 626. Lexis accessed online via KU Libraries)
*gender modified in brackets
Once a patent is granted, it can be enforced. If a third party infringes on the inventor's patent by making, using, or selling her invention, 36she [they] may sue the third party 37and obtain, depending on the circumstances, an injunction or damages. 38The traditional model of patent use also allows for acquisition of patents. In the traditional model, a company would purchase a patent if the business is operating in a particular area and wants to develop products covered by the patent. 39Thus, the patent is purchased for purposes of commercialization, not enforcement. Enforcement of the patent occurs only if an infringer happens to venture into the area covered by the patent. Thus, the chronological order of patent acquisition and infringement remain the same: acquisition first, followed by infringement.
Violation: the affirmative streamlines the patent process but does not increase enforcement of those rights. Injunctions and damages are unchanged by the plan.
Vote negative:
a. limits—there are thousands of proposals to change patents in some tangential way, forcing affirmative mechanisms to be enforcement-based is a key bottle-neck which fosters in-depth debating.
b. ground—“IP bad” is not a sufficient generic; enforcement is necessary for disadvantages based on venue and actor such as: agency disads and court clog.
2NC/1NR AT: Strengthen C/I
[WRITE EXTENSION OF INTREPRETATION—for example: our interpretation is that “strengthen” means_____; that’s our ____ evidence. Prefer this evidence because_____].
[N.B. when answering the aff’s counter-interp you should also let the judge know you are doing so, for example: “they say ‘strengthen’ means to make effective”]
The plain and accepted meaning of strengthen requires an increase with greater protection—prefer evidence from a patent court
Guijt 19, Administrative Judge on the Patent Trial and Appeals Board (PTAB). (Lisa Marie, August 6 2019, Opinion in Ex parte SUNGHO YOON, JOHN DAVID STAMPFLI, RAMAKRISHNA VENKATA MALLINA, VITTORIO MICHELASSI, GIRIDHAR JOTHIPRASAD, AJAY KESHAVA RAO, RUDOLF KONRAD SELMEIER, DAVIDE GIACCHÉ, and IVAN MALCEVIC, 2019 Pat. App. LEXIS 6586, *7-10, Lexis accessed online via KU libraries)
The Examiner responds that the Specification's description of "geometrical properties" of the axial slots "to minimize 'mixing loss' and extract low momentum fluids . . . appear[s] to contradict an accepted definition of 'strengthen' of 'to make stronger.'" Ans. 2-3. The Examiner also finds that "the [S]pecification does not describe such effects [(as a reduction in the blockage with an increased axial momentum and reduced pressure, or by the curvilinear shape)] "nor does the [S]pecification link the described effects to 'strengthening' the extracted flow.'" Id. at 3.
To satisfy the written description requirement, the Specification must describe the claimed invention in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claimed subject matter as of the filing date. Vas-Cath Inc. v. Mahurkar, 935 F.2d 1555, 1562-63 (Fed. Cir. 1991). The issue of whether the written description requirement has been satisfied is a question of fact. Wang Labs, Inc. v. Toshiba Corp., 993 F.2d 858, 865 (Fed. Cir. 1993).
The Specification discloses, with [*8] reference to Figure 4, that
discrete slots 96[] assist in delaying rotor stall by initially extracting weak tip flow through an aft segment 100 of a portion 58 of flow 50, also referred to herein as leakage flow, that is exposed to the rotor blade tip 81. The portion 58 of flow 50 is then recirculated and strengthened within each of the slots 96, and injected back into the main flow 50 ahead of the rotor blade 80 through the forward segment as a rejected flow 59.
Spec. P 36 (emphasis added). The Specification also discsloses that slots 96 facilitate "the conversion of the uselessness of leakage flows into useful flows to increase the stall margin." Id. P 35. Thus, the Specification satisfies the written description requirement, because the Specification describes the claimed invention in sufficient detail that one skilled in the art can reasonably conclude that the inventor had possession of the claim limitation strengthen the extracted [compressed air] flow within the plurality of discrete axial slots . 4
[*9]
Accordingly, we do not sustain the Examiner's rejection of claims 1 and 3-20 under 35 U.S.C. § 112(a) as failing to comply with the written description requirement.
Rejection II
The Examiner determines that the claim term "strengthen" is "not defined by the claims, the [S]pecification does not provide a standard for ascertaining the requisite degree, and one of ordinary skill in the art would not be reasonably apprised of the scope of the invention. " Final Act. 6. More particularly, the Examiner determines that "the term 'strengthen' is a relative term which may have numerous definitions to one of ordinary skill in the in the context of 'strengthening a flow', i.e., increased flow velocity increased flow density, creation of a vortex within the flow, etc." Ans. 3. The Examiner concludes that "[w]ithout a proper definition of . . . the term 'strengthen' , the term may have multiple definitions, therefore rendering the scope of the claim indefinite." Id.
Appellant relies on the arguments presented supra with respect to Rejection I as support that the claims particularly point out and distinctly claim the invention. Br. 9-10.
Claim 1 recites, in [*10] relevant part, that the discrete axial slots are configured to extract a portion of a compressed air as an extracted flow, strengthen the extracted flow within such slots, and reinject the strengthened flow adjacent a rotor blade tip. Thus, in the context of the claims, we understand the claim term "strengthen" means that the extracted flow is greater relative to the portion of the compressed air that is initially extracted. 5 [[Footnote 5 begins]] An ordinary definition of the term "strengthen" is "to make stronger." https://www.merriam-webster .com/dictionary/strengthen (last visited July 29, 2019). An ordinary definition of the claim term "flow" is "to issue or move in a stream." Id. [[Footnote 5 ends]] However, the Examiner's determination is, more specifically, that it is unclear which parameter of the flow (i.e., velocity) is strengthened (or greater). Cf. Spec. P 5 ("[t]he operating range of an axial compressor is generally limited due to weak flow in rotor tips" ). Although Appellant argues supra that the parameter of flow that is strengthened is the "axial momentum, " 6 we agree with the Examiner that the Specification does not identify a particular parameter of the flow that is strengthened. Notwithstanding, we determine that claim 1 reads on strengthening any parameter of the flow. However, breadth is not indefiniteness. See In re Gardner, 427 F.2d 786, 788 (CCPA 1970).
The core meaning of the term is “make stronger”
Merriam-Webster No Date (“strengthen,” https://www.merriam-webster.com/dictionary/strengthen)
strengthen
verb
strength·​en ˈstreŋ(k)-thən ˈstren(t)-
strengthened; strengthening ˈstreŋ(k)th-niŋ ˈstren(t)th-; ˈstreŋ(k)-thə-, ˈstren(t)-
Synonyms of strengthen
transitive verb
: to make stronger
intransitive verb
: to become stronger
All synonyms point to an increase
Collins Dictionary No Date (“strengthen,” https://www.collinsdictionary.com/us/dictionary/english/strengthen)
strengthen
(strɛŋθən IPA Pronunciation Guide)
Word forms: 3rd person singular present tense strengthens, present participle strengthening, past tense, past participle strengthened
1. TRANSITIVE VERB
If something strengthens a person or group or if they strengthen their position, they become more powerful and secure, or more likely to succeed.
Giving the president the authority to go to war would strengthen his hand for peace.
2. TRANSITIVE VERB
If something strengthens a case or argument, it supports it by providing more reasons or evidence for it.
He does not seem to be familiar with research which might have strengthened his own arguments.
3. TRANSITIVE VERB/INTRANSITIVE VERB
If a currency, economy, or industry strengthens, or if something strengthens it, it increases in value or becomes more successful.
The dollar strengthened against most other currencies.
Synonyms: increase in value, become stronger More Synonyms of strengthen
4. TRANSITIVE VERB
If something strengthens you or strengthens your resolve or character, it makes you more confident and determined.
Any experience can teach and strengthen you, but particularly the more difficult ones.
This merely strengthens our resolve to win the pennant.
Synonyms: bolster, harden, reinforce, give a boost to More Synonyms of strengthen
That’s why the term is understood to mean make “more durable”
Liu 23, Southwestern University of Finance and Economics, China. (Yaru, September 2023, “A Corpus-Based Comparative Study of English Synonyms: Taking Improve, Promote, and Strengthen as an Example,” Sch Int J Linguist Lit 6(9): 399-403. https://saudijournals.com/media/articles/SIJLL_69_399-403.pdf)
*bold and italics in original
The collocates of “strengthen” indicate its subtle implication, that is, to make something stronger or more durable. And the verb’s objects are usually the links between things such as relationship, cooperation, relation and bond. The following concordance lines serve to illustrate this point.
This may have strengthened Gloucester's hand in the region
to make something stronger
consensus on the need to strengthen consumer representation
to make something stronger
his government's commitment to strengthening relations between the United Kingdom
to make something stronger/more durable
2NC/1NR AT: Protection C/I
[WRITE EXTENSION OF INTREPRETATION—for example: our interpretation is that “protection” means_____; that’s our ____ evidence. Prefer this evidence because_____].
[N.B. when answering the aff’s counter-interp you should also let the judge know you are doing so, for example: “they say ‘protections’ aren’t limited to enforcement”]
Enforcement is the only way for courts to recognize the shield of rights
Bracey 6, JD Candidate @ UGA Law expected 2007. (Mose, Fall 2006, “NOTE: SEARCHING FOR SUBSTANCE IN THE MIDST OF FORMALITY: COPYRIGHT REGISTRATION AS A CONDITION PRECEDENT TO THE EXERCISE OF SUBJECT-MATTER JURISDICTION BY FEDERAL COURTS OVER COPYRIGHT INFRINGEMENT CLAIMS”, 14 J. Intell. Prop. L. 111, 133-134. Lexis accessed online via KU libraries)
a. Section 408. A number of application-approach courts "rely on the language of [the second clause of] § 408, that registration is not a condition of [*134] copyright protection." 173 Implicitly, these courts appear to take "copyright protection" at its face value, 174 [[Footnote 174 begins]] Protection is defined as "[t]he condition of being protected." The American Heritage Dictionary 995 (2d College ed. 1991). Protect, in turn, is defined as "[t]o keep from harm, attack, or injury; guard." Id. [[Footnote 174 ends]] as they construe that term to encompass the ability to prevent injury to a copyright rather than to merely convey legal recognition of the validity of a copyright. 175 Since the only means, plausibly considered by issuance-approach courts, of preventing such injury would be judicial enforcement of a copyright, these courts must infer from § 408(a) that the issuance of a certificate of registration or a denial of the same is not needed in order for a court to be competent to enforce a party's copyright. 176
That’s because “protection” is about actively defending against infringement
Herlihy 24, - J.D. Candidate, Case Western Reserve University School of Law (2024); Production Editor, Case Western Reserve Journal of International Law, Vol. 56. B.A., Art History & Anthropology, Hartwick College (2020). (Caitlyn, Spring 2024, “STUDENT NOTE: PROTECTING TRADITIONAL TRANSNATIONAL CULTURAL EXPRESSIONS IN THE UNITED STATES AND MEXICO”, 56 Case W. Res. J. Int'l L. 569, 572. Lexis accessed online via KU libraries)
[[Footnote 11 begins]]
When discussing TCEs, the terms "protection," "safeguarding," and "preservation" are sometimes incorrectly used interchangeably. Although the individual words are synonymous, when talking about IP, "protection" refers to defending intellectual creations from misappropriation or misuse where as "safeguarding" and "preservation" focus on promoting the viability, continued use and transmission of cultural heritage. WIPO TCE, supra note 2; Practical guide, supra note 2, at 27.
[[Footnote 11 ends]]
--AT: Includes Transfer of Patent
Doesn’t include transfer
Kang* and Yang** 2, *Managing Partner of the San Francisco office of Skjerven Morrill MacPherson LLP; Chair of the Firm's Software and Internet Practice Group. Mr. Kang represents technology companies in patent, trademark, trade secret, and IP lawsuits nationwide, and he counsels clients in licensing and patent prosecution. ** J.D. Candidate, Santa Clara University School of Law, 2002; Master of Comparative Law, Indiana University School of Law - Bloomington, 1997; LL.B, National Taiwan University, 1992. (Peter H.* and Jia Ann**, May 2002, “CASE NOTE:DOCTRINE OF INDIVISIBILITY REVIVED? NINTH CIRCUIT CONFIRMS COPYRIGHT EXCLUSIVE LICENSEE HAS NO RIGHT TO TRANSFER LICENSE ABSENT OWNER'S CONSENT: GARDNER V. NIKE, INC.”, 18 Santa Clara Computer & High Tech. L.J. 365, 370-371. Lexis accessed online via KU libraries)
In reaching this conclusion, the court's analysis focused on specific language in 201(d)(2), the so-called "protection and remedies" clause. 40 The second sentence of 201(d)(2) provides that, "the owner of any particular exclusive right is entitled, to the extent of that right, to all of the protection and remedies accorded to the copyright owner by this title." 41 The court interpreted 201(d)(2) as providing only "protection and remedies" to the owner of the exclusive right and not all the "rights" afforded to a copyright owner. 42 According to the court, the term "protection and remedies" includes the right for an exclusive licensee to sue in her own name, but does not include the right to transfer the exclusive license. 43 Furthermore, relying on the principle of statutory construction, the court held that the more specific term of 201(d)(2) prevails over the more general language of 101 and 201(d)(1). 44 Therefore, the court held that 201(d)(1) did not apply to the present case, and thus [*371] 201(d)(2) only provided "protection and remedies" but not the rights. 45
2NC/1NR AT: Enforcement =/= Injunctions (W/M Enforcement)—Revised
Prefer the narrower, literal meaning of “enforcement,” otherwise any action be “enforcement”
Zhang 3, L.L.M (London, 2000); Master of Laws (Xiamen, PRC, 1997); PRC-qualified lawyer, member of the Chinese Bar Association and member of Chinese Institute of Certified Public Accountants. The author is now a Ph.D researcher at the Department of Law, Soas, University of London. (Xin, Winter 2003, “ARTICLE:Implementation of the WTO Agreements: Framework and Reform”, 23 NW J. Int'l L. & Bus. 383, 393. Lexis accessed online via KU libraries)
Enforcement is a mechanism to force compliance with a particular standard through informal or formal procedures of dispute settlement and decisions implementation, which "implies compulsion to obedience." 39 [[Footnote 39 begins]] See Qureshi, supra note 11, at 51-53. In this context, the term "enforcement' is used in its narrower literal meaning. Some scholars argue that this term can have a wider meaning to include non-coercive measures designed to induce adherence to norms by the state (for example, the transparency obligations). In this regard, they actually expand the meaning of "enforcement' to cover all means of implementation. [[Footnote 39 ends]] It has the strongest sense of coercion, immediacy and particularity among four implementation mechanisms. Dispute settlement procedures constitute the core element of this mechanism, servi

Preview shortened. Download the file for the full document.