The realization of a multifaceted self is an ideal one strives to realize. You realize such a self in large part through interaction with others in various social roles. Such realization requires a significant degree of informational privacy. Informational privacy is the ability to determine for yourself what others may do with your information. The realization of multifaceted selves requires informational privacy in public. There is no contradiction here. Informational privacy is a matter of control, and you can have such control in public. Current information processing practices greatly reduce privacy in public thereby threatening the realization of multifaceted selves. To understand why this is happening and to figure out how to respond, we analyze the foundations of privacy in public.Privacy in public consists in privacy by obscurity and privacy by voluntary restraint. Privacy by obscurity is essentially a matter of getting lost in the crowd. Privacy by voluntary restraint was perhaps first explicitly discussed by the great nineteen century sociologist, Georg Simmel. He was impressed by the fact that people voluntarily limit their knowledge of each other as interact in various social roles. Merchants and customers, students and teachers, restaurant customers and waiters, for example, typically exchange only the information necessary to their interaction in those roles and voluntarily refrain from requesting, disclosing, or otherwise discovering more. Advances in information processing have greatly reduced both privacy by obscurity and privacy by voluntary restraint. We focus on the latter. One reason is that, as privacy by obscurity declines, the need for privacy in public by voluntary restraint increases. We confine our attention to the private sector; however, given the current corporate-government surveillance partnership, constraining private information processing is an essential part of constraining governmental processing.Unlike privacy by obscurity, you need the cooperation of others to realize privacy by voluntary restraint. We explain the cooperation by appeal to informational norms, norms that define contextually varying permissions and restrictions on the collection, use, and distribution of information. Norm-implemented coordination is essential to privacy in public (in the form of voluntary restraint), and it is this coordination that advances in information processing and related business practices undermined. This happens in two ways. First, businesses exploit existing norms to create a debased form of "coordination" that serves their interests while eroding privacy in public. Second, technology-driven business innovation has created new forms of interaction not governed by relevant information norms. This lack of norms means the lack the coordination essential to privacy in public. As privacy in public disappears, multifaceted selves face the threat of disappearing — literally — from the scene. The solution is to establish n
{"title":"Self, Privacy, and Power: Is It All Over? (with R. Sloan)","authors":"Richard Warner","doi":"10.2139/SSRN.2401165","DOIUrl":"https://doi.org/10.2139/SSRN.2401165","url":null,"abstract":"The realization of a multifaceted self is an ideal one strives to realize. You realize such a self in large part through interaction with others in various social roles. Such realization requires a significant degree of informational privacy. Informational privacy is the ability to determine for yourself what others may do with your information. The realization of multifaceted selves requires informational privacy in public. There is no contradiction here. Informational privacy is a matter of control, and you can have such control in public. Current information processing practices greatly reduce privacy in public thereby threatening the realization of multifaceted selves. To understand why this is happening and to figure out how to respond, we analyze the foundations of privacy in public.Privacy in public consists in privacy by obscurity and privacy by voluntary restraint. Privacy by obscurity is essentially a matter of getting lost in the crowd. Privacy by voluntary restraint was perhaps first explicitly discussed by the great nineteen century sociologist, Georg Simmel. He was impressed by the fact that people voluntarily limit their knowledge of each other as interact in various social roles. Merchants and customers, students and teachers, restaurant customers and waiters, for example, typically exchange only the information necessary to their interaction in those roles and voluntarily refrain from requesting, disclosing, or otherwise discovering more. Advances in information processing have greatly reduced both privacy by obscurity and privacy by voluntary restraint. We focus on the latter. One reason is that, as privacy by obscurity declines, the need for privacy in public by voluntary restraint increases. We confine our attention to the private sector; however, given the current corporate-government surveillance partnership, constraining private information processing is an essential part of constraining governmental processing.Unlike privacy by obscurity, you need the cooperation of others to realize privacy by voluntary restraint. We explain the cooperation by appeal to informational norms, norms that define contextually varying permissions and restrictions on the collection, use, and distribution of information. Norm-implemented coordination is essential to privacy in public (in the form of voluntary restraint), and it is this coordination that advances in information processing and related business practices undermined. This happens in two ways. First, businesses exploit existing norms to create a debased form of \"coordination\" that serves their interests while eroding privacy in public. Second, technology-driven business innovation has created new forms of interaction not governed by relevant information norms. This lack of norms means the lack the coordination essential to privacy in public. As privacy in public disappears, multifaceted selves face the threat of disappearing — literally — from the scene. The solution is to establish n","PeriodicalId":424163,"journal":{"name":"Tulane Journal of Technology and Intellectual Property","volume":"116 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-02-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124834805","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The patent law's doctrines of prosecution history estoppel and equivalents have come head on in the Court of Appeals for the Federal District's decision Festo Corporation v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd. ("Festo"). The case, currently before the United States Supreme Court, involves issues relating to the scope of invention that should be afforded to patents in patent infringement actions. This decision threatens to shift dramatically and unjustifiably the balance struck by patent law and practice between patentees and alleged infringers in favor of infringers regarding the interpretation of patents. That is, the Festo decision, by expanding the applicability of prosecution history estoppel in patent infringement actions, substantially curtails a patentee's bases for obtaining a judicial finding of infringement under the doctrine of equivalents. In Festo, the Federal Circuit departed from United States Supreme Court precedent and its own longstanding and well-established practice of using a "flexible bar" approach to determine whether a patentee was estopped under the doctrine of prosecution history estoppel from asserting infringement under the doctrine of equivalents. The Festo Court adopted a much more stringent "complete bar" approach to determine whether prosecution history estoppel estops a patentee from asserting equivalents infringement. This "complete bar" approach limits substantially a patentee's ability to obtain a finding of infringement under the doctrine of equivalents. This article proposes that the Federal Circuit has not justified in abandoning its own precedent and Supreme Court precedent when it discarded the "flexible bar" approach in favor of the "complete bar" approach. I propose that Supreme Court and Federal Circuit precedent compel the conclusion that what the Festo Court has denominated as the "complete bar" approach is just an application of the "flexible bar" approach to a particular fact pattern. The Festo decision should be reversed by the Supreme Court and the "flexible bar" approach to prosecution history estoppel should be reinstated. I conclude that the Court of Appeals for the Federal Circuit had little or no basis for abandoning the "flexible bar" approach in favor of a nonexistent "complete bar" approach when making prosecution history estoppel determinations. The balance that has existed for many years between prosecution history estoppel and the doctrine of equivalents has served the United States patent system well and should not be altered. The Federal Circuit provided no sensible reason to alter this balance.
{"title":"Harmonizing Prosecution History Estoppel and the Doctrine of Equivalents in Patent Infringement Actions","authors":"Armando Irizarry","doi":"10.2139/SSRN.305499","DOIUrl":"https://doi.org/10.2139/SSRN.305499","url":null,"abstract":"The patent law's doctrines of prosecution history estoppel and equivalents have come head on in the Court of Appeals for the Federal District's decision Festo Corporation v. Shoketsu Kinzoku Kogyo Kabushiki Co., Ltd. (\"Festo\"). The case, currently before the United States Supreme Court, involves issues relating to the scope of invention that should be afforded to patents in patent infringement actions. This decision threatens to shift dramatically and unjustifiably the balance struck by patent law and practice between patentees and alleged infringers in favor of infringers regarding the interpretation of patents. That is, the Festo decision, by expanding the applicability of prosecution history estoppel in patent infringement actions, substantially curtails a patentee's bases for obtaining a judicial finding of infringement under the doctrine of equivalents. In Festo, the Federal Circuit departed from United States Supreme Court precedent and its own longstanding and well-established practice of using a \"flexible bar\" approach to determine whether a patentee was estopped under the doctrine of prosecution history estoppel from asserting infringement under the doctrine of equivalents. The Festo Court adopted a much more stringent \"complete bar\" approach to determine whether prosecution history estoppel estops a patentee from asserting equivalents infringement. This \"complete bar\" approach limits substantially a patentee's ability to obtain a finding of infringement under the doctrine of equivalents. This article proposes that the Federal Circuit has not justified in abandoning its own precedent and Supreme Court precedent when it discarded the \"flexible bar\" approach in favor of the \"complete bar\" approach. I propose that Supreme Court and Federal Circuit precedent compel the conclusion that what the Festo Court has denominated as the \"complete bar\" approach is just an application of the \"flexible bar\" approach to a particular fact pattern. The Festo decision should be reversed by the Supreme Court and the \"flexible bar\" approach to prosecution history estoppel should be reinstated. I conclude that the Court of Appeals for the Federal Circuit had little or no basis for abandoning the \"flexible bar\" approach in favor of a nonexistent \"complete bar\" approach when making prosecution history estoppel determinations. The balance that has existed for many years between prosecution history estoppel and the doctrine of equivalents has served the United States patent system well and should not be altered. The Federal Circuit provided no sensible reason to alter this balance.","PeriodicalId":424163,"journal":{"name":"Tulane Journal of Technology and Intellectual Property","volume":"25 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2002-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117066815","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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