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Volume 62, Issue 6
Inequitable Conduct in Retrospective: Understanding Unclean Hands in Patent Remedies

 By T. Leigh Anennson & Gideon Mark | 62 Am. U. L. Rev. 1441 (2013)

There are critical challenges facing patent rights and remedies. The defense of inequitable conduct in the patent process is a controversial and prominent concern. It is one of the most significant judicially-created doctrines in patent jurisprudence and has been the subject of intense interest in the patent community. The United States Supreme Court’s ruling in eBay Inc. v. MercExchange, L.L.C. instructs that patent law is not an island, but rather is part of the broader law of equity and its remedies. Initially heeding that instruction, the Federal Circuit in Therasense, Inc. v. Becton, Dickinson & Co. unanimously decided to rehear en banc the issue of inequitable conduct in light of its origins in equity and unclean hands. Regrettably, the majority ultimately enounced the doctrine’s heritage and reinvented the defense purely on policy grounds. Although the majority still called cheating in obtaining a patent monopoly inequitable conduct, there is little equity left. 

It Wasn't an Accident: The Tribal Sovereign Immunity Story

By William Wood | 62 Am. U. L. Rev. 1587 (2013)

In its latest pronouncement on the subject, the Supreme Court suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies that tribal sovereign immunity is an accidental doctrine that developed with little analysis or reasoning. The Court, however, overlooked important history, context, and (some of its own) precedent which shows that the doctrine arose quite intentionally through relationships negotiated across centuries between the United States and the Indian nations involved in the foundational tribal immunity cases. Indeed, the doctrine’s origins and the principles underlying it date back as far as those for the federal, state, and foreign governments’ immunities, and, historically, the reasoning and justifications for these doctrines are the same. Although the Kiowa Court upheld tribal immunity, it did so grudgingly and only after disparaging its own precedent, misconstruing the doctrine’s origins, questioning whether to perpetuate it, and inviting Congress to abrogate it.

COMMENT: Slaying the Jurisprudential Beast: Virginia's Flawed Multi-Factor Approach to Differentiating "Ordinary Building Materials" from "Equipment" and "Machinery" Under Code § 8.01-250

By Meredith Renegar | 62 Am. U. L. Rev. 1737 (2013)

Virginia Code section 8.01-250 voids all claims against design professionals, contractors, subcontractors, and suppliers arising out of defective improvements to real property when not brought within five years of the incorporation of that improvement. However, manufacturers and suppliers of ill-defined “equipment” and “machinery” are exempted from the statute’s protection. Given the relatively short statute of repose for improvements to real property in the Virginia Code, the threshold question of whether something is “equipment” or “machinery” has been a central issue in many tort cases before the Virginia courts. 

Through a line of cases originating with the Supreme Court of Virginia’s 1985 decision in Cape Henry Towers, Inc. v. National Gypsum Co., Virginia courts have assembled a multi-factor test to distinguish the term of art, “ordinary building materials,” from “equipment” or “machinery.” This Comment argues that this sprawling and continuously growing factor-based approach, in which no one factor is controlling, is overly cumbersome and nebulous. It leads to inconsistent applications and results that offend modern ideals of advancement and technology.

Rebalancing Public and Private in the Law of Mortgage Transfer

 By John Patrick Hunt, Richard Stanton, & Nancy Wallace | 62 Am. U. L. Rev. 1529 (2013)

The law governing the United States’ $13 trillion mortgage market is broken. Courts and legislatures around the country continue to struggle with the fallout from the effort to build a twenty-first century global market in mortgages on a fragmented, archaic legal foundation. These authorities’ struggles stem in large part from the lack of clarity about the legal requirements
for mortgage transfer, the key process for contemporary mortgage finance. 

This Article argues that American mortgage transfer law is unclear in two distinct respects and offers suggestions for fixing the law. It is currently unclear whether a recorded mortgage assignment is needed to make sure that a mortgage transferee has a protected interest in the mortgage. It also is unclear whether a recorded assignment is needed to make sure that the transferee can lawfully foreclose on the mortgage. Revisions to the Uniform Commercial Code adopted around the turn of the century may be interpreted as doing away with preexisting laws arguably requiring parties to record their ownership interests to protect those interests and to foreclose on the mortgage. But the interaction
of these revisions and preexisting state recording laws is most unclear, with consequences for borrowers, investors, and securitization arrangers. 

COMMENT: How Many is "Any"?: Interpreting § 2252A's Unit of Prosecution for Child Pornography Possession

By Christina M. Copsey | 62 Am. U. L. Rev. 1675 (2013)

Individuals convicted for possession of child pornography should not receive drastically different sentences based solely on the statute under which they are convicted. Yet courts interpret the current statutory scheme in this way. 

Depending on which of two statutes a prosecutor chooses to bring charges under, and on which circuit has jurisdiction, the same defendant could receive one count of possession—or ten counts or one hundred counts. This discrepancy results from a slight difference in phrasing between two nearidentical statutes: 18 U.S.C. § 2252(a)(4)(B) and § 2252A(a)(5)(B). Under § 2252, a defendant may only be convicted of one count of possession for all illicit materials simultaneously possessed in one place, and sentencing is tailored to the number of images possessed, among other factors. Under § 2252A, however, individuals can be convicted of a separate count for each physical storage device or each type of storage medium utilized. Both statutes are currently in effect, leading to the potential for widely disparate punishments for similar levels of possession. 

COMMENT: Going for Gold: The Meaning of "Commercial Activity" in the Foreign Sovereign Immunities Act in the Race for Buried Treasure in Sunken Shipwreck

By Zhen Song | 62 Am. U. L. Rev. 1771 (2013)

The theory of absolute sovereign immunity once provided broad jurisdictional immunity protections to foreign states and their properties from adjudication in U.S. courts. However, in the last century, Congress and the Supreme Court have both taken significant steps, in conformity with developments in international law, to limit the doctrine’s application exclusively to acts that are sovereign in nature. Enacted in 1976, the Foreign Sovereign Immunities Act codified several exceptions to sovereign immunity,
one of which was for commercial activity. Since then, courts have struggled to define the scope of “commercial activity” in claims involving foreign states.