Risky Business: The Credit Crisis and Failure (Part I)

Olufunmilayo B. Arewa[*]

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Introduction

The credit crisis represents a watershed event for global financial markets and has been linked to significant declines in real economy performance on a level of magnitude not experienced since World War II.[1]  Recognition of the crisis in 2008 has been followed in 2009 and 2010 by a plethora of competing proposals in response to the credit crisis.[2]  The result has been a cacophony of visions, voices, and approaches.  The sheer noise that has ensued threatens to drown out the fundamental core questions that should be asked about the credit crisis.  Among the most important are questions about the relationships between risk, regulation, and failure.

The credit crisis can be viewed as a type of financial market network failure.[3]  The credit crisis underscores the complex and linked nature of contemporary financial markets, as well as the inherent difficulties regulators and industry participants face in managing complex and interconnected risks.  The credit crisis also demonstrates that neither industry participants nor regulators fully apprehended underlying financial market risks.  In recent years, financial products and financial markets have become increasingly complex and global.[4]  Although public commentary and policy discussions in the credit crisis aftermath focused on the implications of financial services firms that are “too big to fail,”[5] existing commentary devotes less attention to the network-like characteristics of financial markets and the implications of complex networks for financial markets.[6]  The impact of financial market networks is heightened by the pervasive cultures of trading and risk-taking that now characterize many market segments.[7]  The risk-taking associated with financial market trading activities is perhaps best illustrated by cases of individual traders who took on risky trading positions that significantly compromised or, in the case of Baring Brothers, destroyed the firms on whose account they trade.[8]

An Empirical Study of the Role of the Written Description Requirement in Patent Examination

Dennis Crouch[*]

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Introduction

An en banc Federal Circuit recently confirmed that § 112 of the Patent Act,[1] as properly interpreted, includes a written description requirement that is separate and distinct from the enablement requirement.[2]  The written description and enablement doctrines both encourage applicants to fully disclose their inventions, but the doctrines respectively focus on proof that the patentee (1) has possession of the invention;[3] and (2) has enabled others to make and use the invention.[4]  The en banc-challenger argued instead that the patent statute spells out a unified requirement of a written description that enables and that the separate written description requirement should be eliminated.[5]

The U.S. Patent & Trademark Office (USPTO) is the executive branch agency tasked with the responsibility of examining patent applications to determine whether patent rights should issue.[6]  Once a patent issues, the constitutionally guaranteed exclusive rights[7] can be enforced in federal courts.[8]  Although the USPTO has no direct role in the infringement dispute between the patentee Ariad[9] and the accused infringer Eli Lilly,[10] the government submitted an amicus curiae brief indicating its continued support for the written description requirement as a tool that the USPTO uses to eliminate claims during the patent examination process.[11]  The government argued in its brief that a separate written description requirement is “necessary to permit USPTO to perform its basic examination function.”[12]  However, when pressed during oral arguments, the government could not point to any direct evidence supporting its contention.[13]

This Essay presents the results of a retrospective empirical study of the role of the written description requirement in patent office examination practice.  It is narrowly focused on rebutting the USPTO’s claim that the separate written description requirement serves an important role in the patent prosecution process.  To the contrary, my results support the conclusion that it is indeed “exceedingly rare that the patent office hangs its case on written description.”[14]