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Volume 2019 — Issue 2 (Fall)

“The Test of Inventiveness in Chinese Patent Jurisprudence: Recent History, Cases, and Analysis”  by: Ada Yue Wang

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Juristic effort to discern inventiveness or non-obviousness occupies the center of patent law’s theoretical gravity. What kind of invention deserves a governmental grant of economic exclusivity often hinges on the purpose of the patent law as defined by the lawmakers. China enacted its first Patent Law in the 1980s and has experienced several doctrinal changes. How the inventiveness standard in the Chinese patent law developed poses at once a question of political history and legal theory. Current scholarship abounds in illumination of the historical and socio-economic factors driving the development of the inventiveness standard in Chinese patent jurisprudence. While this paper also sheds light on the political and economic history of the Chinese patent law legislation, it will try to stand apart from the current literature by means of its focus on the jurisprudential development behind the doctrinal changes in the Chinese inventiveness standard.

During the investigation of this issue, the paper identifies the two doctrinal systems from whom the Chinese patent jurists purported to borrow their ideas: the EU problem-solution approach and the U.S. non-obviousness approach. This paper makes the case that in recent years Chinese patent jurists have made the momentous choice for the EU approach. This choice must further be evaluated by mapping the profound philosophical differences between the two contrasting approaches. Ultimately, this paper argues that the choice reflects the Chinese patent jurists’ confidence in the greater capacity for objectivity, juridical consistency and uniformity of the problem-solution approach to the inventiveness determination.

“All Fun and (Mind) Games? Protecting Consumers from the Manipulative Harms of Interactive Virtual Reality” by: Yusef Al-Jarani 

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Information technologies increasingly influence our daily lives. While mostly benign, revolutionarily affective technologies are emerging that pose potential autonomy, economic, and privacy harms to consumers. Interactive virtual reality, or VR gaming, is arguably chief among them. But despite its rapid adoption by consumers (often for use by children) and its demonstrable power to manipulate human cognition and behavior, the law is ill-equipped to curtail its harms. This is owed to a general incognizance of the now-extensive research on the technology’s manipulative effects and the consequent lack of discussion in public forums on how best to constrain them, both doctrinally and practically. This Article aims to enlighten lawmakers, jurists, and the general public about the effects of interactive VR, demonstrate how First Amendment doctrine permits the constraint of its manipulative harms, and illustrate what those constraints might look like in practice. In doing so, it raises the question: what or who is being played—the game or the consumer? 

“From Industry Sandbox to Supervisory Control Box: Rethinking the Role of Regulators in the Era of FinTech” by: Cheng-Yun Tsang

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Rapid developments of financial technology (fintech) and the unbundling of financial services have given rise to greater collaboration between financial institutions and fintech innovators. Such collaboration takes four major forms: Third-party service relationships, data-sharing arrangements, regulatory experiments, and industry consortia. Each type of collaboration presents certain risks or governance issues to the consumers, the participating firms, and the financial market as a whole, and hold different ramifications for the existing regulatory regime. This paper argues that a novel regulatory approach is needed to help the regulators continuously identify, evaluate, and address the issues as these fintech-era collaborations deepen. This paper proposes that with the proper use of supervisory technology (SupTech), regulators can turn current initiatives, such as industry sandboxes, into supervisory control boxes to effectively regulate fintech-era collaborations and shift current practices into a new paradigm of technology-enabled regulation.

“Obstacles to Transatlantic Harmonization of Data Privacy Law in Context" by: W. Gregory Voss 

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Globalization seems to call for the harmonization of laws, especially in sectors affecting global business, and this is all the truer with respect to laws affecting the technology industry, with the facility of its cross-border communications networks. Data privacy law on both sides of the Atlantic benefits from common origins but eventually divergence occurred, causing compliance challenges for companies and the potential halting of cross-border data flows from the European Union to the United States. Harmonization could possibly obviate such difficulties, and there is a window of opportunity to achieve this with discussion in the United States of a potential federal data privacy law.

After setting out the historical context, this study posits and details three major obstacles to full-scale transatlantic harmonization of data privacy law, from the perspective of what has become the predominant data privacy model— that of the European Union. These are: laissez-faire policy and neoliberalism in the United States (and resulting focus on self-regulation there), the lobbying power of the U.S. technology industry giants in a conducive U.S. legislative system, and differing constitutional provisions on both sides of the Atlantic. Each of these elements makes attaining true harmonization more difficult, if not impossible. Nonetheless, corporate action in the United States might have given some hope of a de facto harmonization of practices, although hopes have not led to the equivalent of harmonization of laws. Political and other realities provide further context, leaving reason to be doubtful about the prospects of true transatlantic harmonization of data privacy law. Finally, certain areas for improvement in the context of U.S. legislative action are discussed.

Notes

"#280 Characters Of Legal Trouble: Trump, Twitter, And The Presidential Records Act" by Jessica L. Roberts
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"Don’t Ask Me What To Do, Just Let Me Sue You: Why We Need Clear Guidelines For Website Accessibility Under Title III Of The Americans With Disabilities Act" by Christina T. Haleas
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"Get A Warrant: Balancing Individual Privacy Rights Against Governmental Interests Through Textalyzer Technology" by Edward Wells III
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