Volume 2013, No. 4


PDF link Software Patents and the Return of Functional Claiming

By Mark A. Lemley

Commentators have observed for years that patents do less good and cause more harm in the software industry than in other industries such as pharmaceuticals. They have pointed to a variety of problems and offered a variety of solutions.

While there is some truth to each of these criticisms, the real problem with software patents lies elsewhere. Software patent lawyers are increasingly writing patent claims in broad functional terms. Put another way, patentees claim to own not a particular machine, or even a particular series of steps for achieving a goal, but the goal itself. The resulting overbroad patents overlap and create patent thickets.

Patent law has faced this problem before. The Supreme Court ultimately rejected such broad functional claiming in the 1940s as inconsistent with the purposes of the patent statute. When Congress rewrote the Patent Act in 1952, it adopted a compromise position: patentees could write their claim language in functional terms, but when they did so the patent would not cover the goal itself, but only the particular means of implementing that goal described by the patentee and equivalents thereof. These “means-plus-function” claims permitted the patentee to use functional language to describe an element of their invention, but did not permit her to own the function itself however implemented.

Most software patents today are written in functional terms. If courts would faithfully apply the 1952 Act, limiting those claims to the actual algorithms the patentees disclosed and their equivalents, they could prevent overclaiming by software patentees and solve much of the patent thicket problem that besets software innovation.

PDF link Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation

By Jonathan Turley

The Article explores how past interpretations rely on historical practices and claims of congressional acquiescence as the basis for the broader interpretation of the Clause. Part I looks at the language and the original meaning of the Clause, particularly in light of the different (and longer) forms of recess that existed at the time. Part II explores how the relative clarity of the language and original meaning were gradually lost in a series of interpretations by past presidents—interpretations that reflected periods of sharp political divisions. These interpretations largely came from Attorneys General due to the general judicial avoidance by courts in addressing controversies over recess appointments. The latest such interpretation can be found in the recent detailed defense of the four recess appointments by the Obama Administration.

Part III specifically looks at the concept of an intrasession recess appointment as opposed to an intersession recess appointment. Using the Cordray appointment as an illustrative context, the Article shows how the current interpretation of the Clause takes the concept of a recess beyond any logical and credible point. Part IV looks more closely at one of the key elements of the broad interpretations used by past administrations: historical practice or congressional acquiescence.

PDF link Judge or Jury? How Best to Preserve Due Process in Wisconsin Termination of Parental Rights Cases

By Cary Bloodworth

The right to parent one’s own child is a fundamental right that requires due process protection from government interference. Since 1979, the Wisconsin Children’s Code has provided parents involved in termination of parental rights cases with the right to a jury trial as a way to safeguard their due process rights. In the 2013–14 Session, the Wisconsin Legislature will consider a bill that seeks to eliminate a parent’s right to a jury trial in termination of parental rights cases. Proponents of this change argue that jury trials are not in the best interest of the child because they delay permanency for children and that jury trials are more expensive.

This Comment argues that the right to a jury trial in termination of parental rights cases should be preserved in Wisconsin because it provides parents with an important due process safeguard. It analyzes the importance of jury trials in the termination of parental rights context using the three-factor test established in Mathews v. Eldridge, concluding that these factors weigh in favor of preserving a parent’s right to a jury trial. In doing so, it addresses the claims that jury trials delay permanency and are more expensive. Finally, it suggests alternative solutions that achieve timely permanency for children and reduce administrative costs without eliminating an important procedural protection.

PDF link Caregivers Uncared For: How to Fix Wisconsin’s Ex Post Facto Caregiver Law

By Courtney Lanz

There are few responsibilities as great as caring for someone’s child. In 2009, the Milwaukee Journal Sentinel began publishing a series of articles exposing a fraudulent scheme. Certain child-care providers were billing the state for children they were not actually caring for, resulting in millions of dollars in overpayments through the Wisconsin Shares program.

The Wisconsin State Legislature responded quickly by enacting 2009 Wisconsin Act 76, amending the existing law that regulates child-care licensing. Among the various amendments was a new provision permanently barring all individuals convicted of “fraudulent activity as a participant in the Wisconsin Works program” from obtaining or maintaining a child-care license or certification, or from even working as a caregiver. This provision applies retroactively without any exception for prior convictions.

Although well-intentioned, the permanent bar has had a punitive, over-inclusive effect on Wisconsin’s caregivers and licensed child-care providers. This Comment posits that this retroactive and permanent effect renders the law violative of Wisconsin’s Ex Post Facto Clause. Rather than overturn the law in its entirety, this Comment suggests three ways the legislature can resolve this defect by muting or eliminating its onerous impact. Finally, this Comment explains how petitioning the Wisconsin Department of Children and Families for a declaratory ruling can be beneficial to both the agency and the individual potentially affected by the law.