The Intellectual Property and Technology Forum Journal at Boston College Law School (IPTF Journal) is a legal publication dedicated to providing readers with rigorous, innovative scholarship, timely reporting, and ongoing discussion from the legal community concerning intellectual property and technology law. IPTF Journal is designed, edited, and published by students at Boston College Law School. Our articles are available freely on our website (<a href="https://sites.bc.edu/iptf/">https://sites.bc.edu/iptf/</a>). They are also available on Westlaw.

Intellectual Property and Technology Forum

Adaptive Software as Medical Devices (SaMDs) play an increasingly critical role within clinical settings, assisting physicians with illness detection, diagnosis, and analysis. Use of Artificial Intelligence/Machine Learning (AI/ML) techniques, such as deep machine learning and neural networks, lends adaptive SaMDs unparalleled analytical power, but not without risks. Adaptive SaMDs are typically “black-box,” meaning that they compute data such that no one can determine how it rendered outputs. “Transparency,” in the form of explainability, is frequently raised in policy discussions as a solution to track when the SaMD has erred in computing outputs. The FDA, in seeking to uphold safety and efficacy, has recently released preliminary proposals that express a heavy need for pre-market transparency, specifically for adaptive SaMDs’ internal systems and operations. This Article argues that although some transparency is important to establish the initial trust in the SaMD, the goal of transparency being close to explainability is nonetheless a misplaced regulatory focus. The FDA should instead focus on developing a resilient and secure data-sharing infrastructure to facilitate high-quality data inputs for the SaMD to form complete and accurate medical predictions. Furthermore, the FDA should invest in detailing a robust post-market surveillance system that eases and incentivizes data volunteering.

Transparency is a Misplaced Regulatory Focus for Holding Adaptive Software as Medical Devices (SaMDs) Accountable

The Russian government has deliberately weakened intellectual property right protections for entities from “unfriendly countries.” Following Moscow’s invasion of Ukraine and the subsequent imposition of economic sanctions by the United States and its allies, the Kremlin launched policies targeting Western businesses as they withdrew from the Russian market. This Article analyzes three potential recourses—bilateral, multilateral, and non-governmental—impacted corporations and individuals could execute to hold Russia accountable for its discriminatory treatment. This Article argues that corporations should form partnerships with their respective governments to promote intergovernmental dialogue through mechanisms such as treaties, as well as undertake litigation in Russia’s domestic courts to enforce their rights. 

Crime and Punishment: Holding Russia Accountable for Weakening Foreign Entities’ Intellectual Property Rights

Law enforcement throughout the United States uses facial recognition technology to make arrests, despite proof that reliance on this mechanism for identifying subjects has led to several wrongful arrests. Due to the United States’ lack of comprehensive federal data privacy laws, most Americans are unaware that their photos and data make up the information that facial recognition databases use to make these arrests. This Article examines the current state of facial recognition technology and data privacy laws in the United States and the European Union. Moreover, it advocates for a federal data privacy law that accommodates current and future facial recognition technologies. The proposed law draws inspiration from successful existing laws and incorporates new kinds of provisions to protect populations that existing laws exclude and neglect. 

Facial Recognition in the Eyes of the Law

Humanity is currently losing the fight against climate change. As temperatures continue to rise, immediate and affirmative action must be taken to reduce greenhouse gas emissions. The development and implementation of technology that can mitigate climate change, known as “green technology,” will be critical moving forward. A commonly proposed method for incentivizing the development of green technology is strengthening intellectual property rights for companies who develop such technology. Nevertheless, considering the recent harmful role intellectual property rights played during the COVID-19 pandemic, it is unclear whether emphasizing increased access to patent rights for green technology will actually lead to significant development and innovation within the field of green technology.

Eighty Degrees in Boston, in April: A Problem Best Suited for Intellectual Property?

Autonomous vehicles are increasingly permeating the consumer marketplace. This trend has caused a conundrum in tort liability law. It is standard in product liability law for manufacturers to be held strictly liable for defective products, but there is a gray area when autonomous vehicles are involved in car accidents due to defects. This Article dissects various proposals concerning how the legal system should proceed regarding autonomous vehicle liability. This Article also advocates for federal regulation to define the legal personhood of autonomous vehicles in the eyes of the law. 

“Your Honor, the Car Crashed Itself”: Navigating Autonomous Vehicle Liability in an Age of Innovation

An emerging trend in intellectual property law is e-commerce platforms adjudicating infringement disputes. When platforms receive right holder complaints and decide whether to remove product listings, suspend the seller, or destroy the infringing inventory—intentional or not—they are acting as “courts,” applying unique “laws” and granting platform-style “remedies.” To provide a peek into this nascent realm of intellectual property alternative dispute resolution, this article first compiles what is known about platforms’ adjudication mechanisms, from complaint to decision, from enforcement to “appeals,” covering both platforms’ basic complaint systems and Amazon’s UPNEP/APEX program. Normatively, however, there are concerns that platforms are taking over the role of intellectual property courts, which this article explores. If not treated carefully, platform adjudication could erode due process, nullify substantive legal doctrines, and stunt intellectual property law development. Next, this article discusses the upsides of this new trend, including significant time and cost savings that must be acknowledged, and how platform adjudication can be a welcome addition alongside pre-existing compact intellectual property dispute resolution institutions in the public sector. Finally, by examining courts’ decisions on motions to enjoin platform adjudication, this article suggests that platform adjudication for resolving infringement disputes is here to stay.

The Secret Life of Platform Intellectual Property Adjudication

The life sciences industry is a vital sector of the American economy, and its success is reliant on the protection of patent holder rights. One common feature in life sciences patents is the genus claim, a claim type traditionally allowing the patent holder to claim a group of related species based on common functionality. A novel interpretation of “written description,” a required element for patent applications, has emerged in recent decisions by the Court of Appeals for the Federal Circuit. This new interpretation has caused concern among some members of the life sciences industry regarding the validity of genus claims in current patents and future patent applications. The majority-conservative Supreme Court could have resolved this issue in favor of patent owners, but failed to seize such an opportunity by denying the writ of certiorari in Juno Therapeutics, Inc. v. Kite Pharma, Inc. in November 2022. If the Court addresses the Juno decision in subsequent rulings, it will likely protect life sciences genus claims. Such protection would benefit patent owners because the validity of current patents and the predictability of new patents depend on such claims. These benefits would strengthen the structure of the patent system as a whole. Nevertheless, the Court, much to critics’ chagrin, remains silent for the time being.

The Supreme Court’s Missed Opportunity to Save Genus Claims in Life Sciences Patents

This Article evaluates the ramifications of modern trademark law in the context of sports apparel and logos. Collegiate and professional sports teams have utilized modern trademark law to enact a licensing regime where third-party companies must pay royalties to produce apparel with collegiate logos. This regime assumes the inherent value of trademarks on sports apparel is derived from their association with the teams they represent, not the logo itself. This Article examines various approaches courts have taken to address the dichotomy between the necessary consumer association and the reality that the logos themselves are what draw consumers. Most notably, this Article focuses on the recent ruling in Pennsylvania State University v. Vintage Brand, LLC (M.D. Pa. 2022). Finally, this Article considers how the Supreme Court could potentially resolve the confusion surrounding trademark rights in sports merchandising by affirming third-party disclaimers.

Disclaimers: The Solution to Source Confusion in Sports Merchandising?

In 2022, the Supreme Court overturned Roe v. Wade with its decision in Dobbs v. Jackson Women’s Health Organization, leaving many individuals anxious about the future of their privacy rights. With millions of people using period-tracking apps, there is a massive amount of sensitive data at stake, including data that criminal prosecutors could use to criminalize people for seeking or having an abortion. Some people are better protected because of their home state’s data privacy legislation, but most Americans are left with no data privacy law protecting their sensitive data. In an era of sophisticated tracking technology, the absence of comprehensive data protection legislation threatens the unprotected. A federal data privacy bill is currently in the House of Representatives, but it does not address the problems that those who can get pregnant will face in a world without Roe. Another proposed bill may offer more protection, but to adequately protect individuals who may become pregnant, Congress will need to provide explicit protections for reproductive data from prosecutorial overreach.

For My Eyes Only: How to Protect Digital Diaries of Reproductive Data in a World Without Roe

The COVID-19 pandemic continues to rage on in much of the world, severely affecting the health of millions. But citizens of high-income nations have accepted the pandemic to be over. The key to ending the pandemic globally across all nations is equal and efficient access to necessary COVID-19 therapeutics, including vaccines. This Article argues that least developed nations and their access to COVID-19 therapeutics, including vaccines, is negatively impacted by the TRIPS Agreement. International human rights law and the TRIPS Agreement remain incompatible, leading to disproportionate access of necessary therapeutics as systemic racism is perpetuated. Along with considering short term solutions, this Article urges that the TRIPS Agreement needs to be overhauled.

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