Over the past three years, students in Columbia Law School’s Lawyering in the Digital Age Clinic have teamed up with the judges at New York City’s Office of Administrative Trials and Hearings and the Legal Aid Society to create a website to help people who had their cars confiscated during an arrest get their cars back.

The NYC Police Department can seize a car during the course of an arrest for a variety of reasons, including driving while intoxicated, drug possession, and weapons possession.  What many car owners and drivers who have had their cars taken away do not know is that there is a process for asking to have the car returned in a civil proceeding even if there is a concurrent criminal trial for the arrest.

The process by which they can do this is called a Krimstock hearing, named after a plaintiff in a class action brought by the Legal Aid Society specifically to challenge the police department’s practice of seizing a car without providing a prompt hearing.

The website provides a comprehensive guide for people who wish to bring a Krimstock hearing case, whether or not they have a lawyer.  It describes car owners’ rights and guides them step-by-step through the entire hearing process, from requesting a hearing to recovering the car from the police impound.   It includes a detailed description of the process, what to prepare, how to settle during a pre-hearing conference if they want to, what to expect during the hearing, and what to do/how to re-schedule if they cannot make their hearing date. There are also videos on different pages of the site made by the OATH judges that serve as special guides through the site.

The Krimstock hearing site can be found at www.law.columbia.edu/krimstock.

About the Clinic

The Lawyering in the Digital Age clinic at Columbia Law School was created more than 10 years ago to explore the impact of technology on law practice and the legal profession. The clinic is taught by Professors Conrad Johnson and Mary Marsh Zulack along with Brian Donnelly, Director of Educational Technology.

The clinic represents an innovative approach to teaching students to engage in effective contemporary legal practice. Student fieldwork projects are done in partnership with public interest organizations and with judges. A common theme for all of the fieldwork is to improve access to justice. Clinic students have collaborated with several Legal Aid and Legal Services organizations to help lawyers integrate technology into their practice.

The clinic has also partnered with judges on all levels of the judiciary in New York.  The Krimstock project with OATH, showcased in this STLR post, is just one example of clinic students helping to make an adjudicative system more accessible and legal
information more available to under-served communities. The clinic students hope that this innovative effort will be a model for using technology to create other resources and tools to provide greater access to justice in other legal arenas.

To learn more about the Lawyering in the Digital Age Clinic, visit here.

The next status conference for AT&T’s embattled T-Mobile merger proposal has been postponed until December 9, due to a scheduling conflict. AT&T and Deutsche Telecom, parent company of T-Mobile, have withdrawn their FCC applications after FCC Chairman, Julius Genachowski, expressed strong doubts that the $39 billion deal would serve the public interest, citing instead the likelihood of job losses and stifled competition.

HTC’s purchase of S3 Graphics Co. may not be as fruitful as originally anticipated. HTC made the $300 acquisition in hopes that Apple would have to license graphics technology or risk patent litigation, but the U.S. International Trade Commission declared last week that Apple’s Macs and iPhones did not infringe on two S3 patents. S3 and HTC still have other outstanding patent disputes with Apple.

Onlookers are turning a critical eye on Zynga as the company gears up for its IPO. Reports have surfaced about the hard-nosed culture of the startup, which has grown to 2,200 employees since its inception in January 2007 and produced social gaming blockbusters such as FarmVille and Words with Friends. In the wake of Groupon’s falling share price, others are concerned about the strength of Zynga’s business model, which requires ongoing development and large marketing budgets to stave off the user boredom.

ShopCity, a website that helps local businesses sell products, has filed a complaint and added to Google’s antitrust worries. ShopCity alleges that the search giant favors its own competing service, Google Places, and pushes ShopCity listings onto later results pages that few web surfers ever check.

Opposition to the proposed Stop Online Piracy Act continues to grow, with more than one million emails and 87,000 phone calls flooding Congress to date. If passed, SOPA would enable the Department of Justice and private rights holders to block access to sites accused of hosting infringing content.

• Sprint is urging the FCC to quickly hold hearings to rule on whether the transfer of spectrum licenses from T-Mobile to AT&T serves the public interest. AT&T’s proposed $39 billion acquisition of T-Mobile is currently under review by the FCC after the US Justice Department sued to block the proposal.

• Senators Blumenthal (CT) and Franken (MN) introduced a bill on Tuesday that would prohibit wireless companies from having contract clauses that require consumers to use binding arbitration rather than suing in the case of a contract dispute.

• On Wednesday, members of the House reviewed the FTC’s recommendations to the Children’s Online Private Protection. The proposed changes would require greater permission from parents of children under the age of 13 before information could be collected from them on the Web.

• Also on Wednesday, Senator Coons (DE) and Kohl (WI) proposed amendments to the pending Currency Exchange Rate Oversight Reform Act of 2011. The amendments would allow private federal civil actions for trade secret infringement and would allow Customs & Border Patrol to share information on suspected counterfeiters with US rights holders.

• Samsung wants courts in France and Italy to prohibit Apple’s iPhone 4S, claiming that the iPhone infringed two of its patents. Samsung and Apple are currently in around 20 patent infringement legal disputes.

• AstraZeneca returned to court this week to defend its US patent on Crestor, a multibillion-dollar cholesterol drug, against generic drug makers who are appealing a decision from the US District Court in Delaware. In June 2010, the court ruled that generic firms failed to prove the patent was invalid because it was obvious.

37 CFR 1.56 (Rule 56) establishes that there is a duty to disclose information to the Patent Office. The regulation states that “[e]ach individual associated with the filing and prosecution of a patent application has a duty of candor and good faith in dealing with the Office, which includes a duty to disclose to the Office all information known to that individual to be material to patentability.” The failure to disclose information could result in a later ruling of inequitable conduct and an invalidation of the patent.

In 1998 the Federal Circuit wrote, “inequitable conduct resides in failure to disclose material information… with an intent to deceive.” It is clear that inequitable conduct is made up of two distinct elements and they are: (1) intent; and (2) materiality. These two elements must each be proven by clear and convincing evidence.

Relationship of Office Actions to the Duty to Disclose

A recent question that has been debated among patent prosecutors is whether the duty to disclose material information extends to a duty to disclose the contents of previous office actions from related and/or unrelated patent prosecutions. More practically, patent prosecutors are worried that if they make a decision not to disclose the contents of a previous office action, that failure to disclose will later be used in an allegation of inequitable conduct that could invalidate the patent.

An office action is a response from the examiner at the United States Patent and Trademark Office to a filing by a patent prosecutor in the course of prosecuting a patent. An office action can be an allowance of the claims, a rejection of the claims pursuant to substantive patentability rules, or an objection to the claims pursuant to procedural rules. By its very nature, an office action merely represents the opinions and conclusions of the examiner who sent it and that examiner’s subjective interpretation of patent law and procedure. It is therefore unclear whether office actions fit within the definition of material information.

To answer the question whether office actions must be disclosed, it is therefore necessary to investigate the meaning of “material information” as it is set forth in Rule 56 to determine the extent of the materiality prong of the inequitable conduct test.

Material Information

Is an office action “information”?

Prior to determining whether an office action is material information, it must be determined whether it is information in the first place. As stated above, an office action represents the opinions and conclusions of an examiner at the USPTO based on the facts, arguments, and assertions put forth by the applicant in the patent application and in the prosecution history. It is possible that this definition does not bring office actions within the meaning of information, such that a categorical rule that they need not be disclosed can be established.

However, the language of the regulation and the Manual of Patent Examining Procedure (MPEP) suggests that such a narrow reading of the word “information” should not be endorsed. Rule 56 states that “all information” must be disclosed and it is therefore clear that the regulation is not referring to only prior art. The MPEP says that “the term “information” in Rule 56(a) is intended to be all encompassing.” The MPEP specifically mentions that all information must be disclosed, “regardless of the source.” There is a duty to disclose “information… as to other co-pending United States applications which are “material to patentability.”

The fact that neither the regulation nor the MPEP go into great detail about the meaning of “information” seems to indicate a broad definition of information, particularly when it is modified by the word “all.” This suggests that the “information” requirement will not provide an easy categorical rule as to whether office actions from other patent prosecutions need be disclosed. Rather, an office action from a different patent prosecution probably fits within the meaning of “information” and therefore its materiality must be analyzed in the same way as the materiality of any other information for which there may be a duty to disclose.

Materiality

Once it is established that an office action fits within the meaning of information, the entire disclosure question stems from the definition of materiality provided by the regulation. Rule 56(b) says that information is only material “it is not cumulative to information already of record or being made of record in the application, and (1) [i]t establishes, by itself or in combination with other information, a prima facie case of unpatentability of a claim; or 2) [i]t refutes, or is inconsistent with, a position the applicant takes in: (i) [o]pposing an argument of unpatentability relied on by the Office, or (ii) [a]sserting an argument of patentability.

There are two aspects to the materiality question, which can be referred to as timing and substance. With regard to timing, information is only material if it is not cumulative to information already of record. This means that regardless of the substantive nature of the information, if it has already been disclosed (or at least a way of obtaining it has been disclosed) then there is no duty to disclose it.

Not surprisingly, the majority of the focus of the case law has tended to be about the substantive materiality question addressed in Rule 56(1) and the standard has evolved over time. Early doctrine regarding materiality of information involved three tests that the court laid out in In re Multidistrict Litigation Involving Frost Patent. There was an objective ‘but for’ test, a subjective ‘but for’ test, and a ‘but it may have test’.[1]

More recently, there are two different tests that the CAFC has used in determining whether information is material. Prior to 1992, the courts used a reasonable examiner test, asking whether a reasonable examiner would have deemed the information material. This was based on the language of Rule 56 prior to its being changed in 1992.

In 1992, the language of Rule 56 was amended to its current form, involving a prima facie case of unpatentability. It appeared that the reasonable examiner test was no longer pertinent. However, recently, the court in Digital Control, Inc. v. The Charles Machine Works suggested that the reasonable examiner test was still alive and the prima facie test provides an additional test of materiality.

Is an office action “material”?

Cumulativeness

It is possible that the timing aspect of at least some types of office actions makes them inherently cumulative to information already of record such that the substantive question of materiality need not be addressed. With regard to cumulativeness, it should be noted that there is a potential difference between office actions from parent applications of the application at issue and office actions from unrelated applications. It is likely that in a regular patent application, office actions from other unrelated patent applications fit within the rule and qualify as information known to the individual and they are not cumulative to information already of record. Therefore, because office actions from other unrelated applications are not of record in the present application, there may be a requirement to disclose them, depending on their substantive materiality.

With regard to the question of disclosure in continuing applications of office actions from parent applications and other related applications, it is more questionable whether office actions are not cumulative. MPEP 609.02 says that it is “not necessary for the applicant to submit an information disclosure statement in the continuing application that lists the prior art cited by the examiner in the parent application” and that “the examiner of the continuing application will consider information which has been considered by the Office in the parent application.” Therefore, in the filing of a continuing application, it would appear that the office actions are cumulative to information already of record and the substantive question of materiality need not be addressed.

However, recently, the court in Larson Mfg. Co. of South Dakota, Inc. v. Aluminart Products Ltd. said that office actions from related co-pending patent applications can be material to prosecution. The court emphasized that the knowledge of a potentially different interpretation is clearly information that an examiner would want to have and therefore is material. Therefore, it is important to note that the court seemed to endorse the reasonable examiner test that was kept alive by the Digital Control court and the court seemed to somewhat merge the timing/substance questions in evaluating the materiality of office actions.

It therefore seems apparent that no categorical rule can be derived either with respect to unrelated office actions or with respect to related office actions based on their cumulativeness. Thus, with regard to the question of whether office actions must be disclosed to the PTO, it depends on an evaluation of the substantive nature of the information contained in the office action.

The substantive aspect of office actions

Assuming that the relevant materiality question is whether information creates a prima facie case of unpatentability and that the question of whether a reasonable examiner would want to have the information is still relevant, it seems that there is a requirement to disclose the contents of office actions.

Under the reasonable examiner test, which is still relevant according to the Digital Control court, a reasonable examiner would want to know about office actions from other patent prosecutions and to know about other examiners’ views on the subject matter. With regard to the language of the current Rule 56, an examiner’s opinions and conclusions based on the application, the prosecution history, and the prior art is probably enough to establish a prima facie case of unpatentability.

Furthermore, in 1992 the Federal Circuit in LaBounty Mfg v. U.S. Int’l Trade Comm’n established that there is a duty to err on the side of disclosure in ‘close cases.’ Essentially, when in doubt about whether the information should be disclosed, it is not simply a recommendation that the disclosure should be made but rather there is a duty to disclose. Additionally, disclosing earlier office actions from other prosecution can be used in subsequent litigation to show good faith and negate deceptive intent.

Conclusion

All of this doctrine seems to suggest that there is nothing unique about office actions with respect to the duty to disclose. Office actions are information. They are not necessarily cumulative to information already of record, even in cases of continuing applications. The fact that they consist of an examiner’s opinions and conclusions does not inherently mean that they cannot establish a prima facie case of unpatentability pursuant to Rule 56(1). Therefore, the materiality of previous office actions must be analyzed exactly the same way as all other information with respect to the duty to disclose.

Reactions

The new policy sparked an outcry, especially from librarians.  The protests are visible on the Web, from the Twitter hashtag #hcod to a small Facebook group to the website boycottharpercollins.com, whose sole mission is to promote a boycott of HarperCollins books.  The site reads, “Are we still boycotting HarperCollins?  Yes,” and it contains a page explaining the issue.  Protesters have also advertised “Librarians Against DRM” shirts (DRM stands for Digital Rights Management, which refers to technology employed to limit access to digital content).  Finally, librarians Sarah Houghton-Jan and Andy Woodworth released the eBook User’s Bill of Rights, a list of desired rights that emphasizes access to digital literary content without restrictions.  It also calls unacceptable the eBook licensing arrangements, whereby consumers do not own eBooks but rather purchase a license to access them.

The first news of the twenty-six checkout policy came from Steve Potash, CEO of OverDrive, an eBook distributer that carriers HarperCollins titles.  Potash wrote a letter to customers describing the change in HarperCollins’ policy.  He wrote, “[W]e have been required to accept and accommodate new terms for eBook lending as established by certain publishers” (emphasis in original).  OverDrive has since changed its ordering process to help address the disfavored HarperCollins policy.  OverDrive removed HarperCollins eBooks from their main catalog, instead segregating them in a separate catalog.  Libraries can thus more easily avoid purchasing the short-lived HarperCollins eBooks.

Why the sudden change, and why twenty-six checkouts?

HarperCollins released an open letter to librarians, explaining it’s new policy.  “[S]elling e-books to libraries in perpetuity, if left unchanged, would undermine the emerging e-book eco-system, hurt the growing e-book channel, place additional pressure on physical bookstores, and in the end lead to a decrease in book sales and royalties paid to authors.”  However, it seems that these arguments apply equally well to print books.  In fact, the arguments can be read as arguments against libraries themselves, not restricted to eBooks in libraries.  So what distinguishes eBooks from print books?

One major difference is the ease of copying and distributing eBooks, compared to hard copies.  This aspect of eBooks has already been addressed, as libraries have accepted the one-copy/one-user model.  That model mimics the hard copy reality that only one user can access one copy of a book at any given time.

Another difference is that eBooks are not subject to the usual wear and tear of hard copy books: rips, spine damage, and bent and marked-up pages.  Such wear eventually necessitates a paper book’s replacement.  Potash’s initial letter to customers noted many publishers’ concerns that “a single eBook license to a library may never expire, never wear out, and never need replacement.”  If the greater durability of eBooks is the only concern of publishers, one possible economic remedy is for publishers to set higher prices for eBooks.  In reality, just the opposite is done.  HarperCollins pointed out in its open letter that its eBooks generally cost 20% less than print versions.  Another solution may in fact be to renew eBook licenses periodically, the policy at the heart of the present controversy.  A more reasonable eBook lifespan might assuage the checkout limit opposition.

So is the twenty-six limit reasonable?  Given a two-week circulation period for eBooks, the twenty-six checkout limit amounts to one year of use.  A three-week circulation period leads to 1.5 years of use.  HarperCollins stated that the new policy resulted from many months of examination, but did not detail the decision process.  Librarians from Oklahoma’s Pioneer Library System undertook their own analysis, posting a YouTube video showing their physical inspection of hard copy books.  The video demonstrates that even books with 120 checkouts can still be in good enough condition to circulate.  Accordingly, the HarperCollins one-year circulation limit (based on a two-week circulation period) seems low.  A more agreeable limit might be the equivalent of two or three years of circulation.

The Unique Nature of Digital Content

Electronic media is fundamentally different from hard copies, creating novel challenges for content owners, particularly in the realm of protection.  Digital content can be replicated quickly and distributed.  A single purchased copy can thus wind up in the hands of multiple users simultaneously, flying in the face of Copyright law.  This problem is not unique to eBooks.  Digital movies, music, and computer software all face the same protection nightmares.

One major solution has been to license content rather than sell it.  Licenses enable restrictions on digital content, as was seen in Vernor v. Autodesk, Inc., a case that found that a purchaser of particular software was a licensee, not an owner (based on evaluation of the copyright owner’s explicit grant of a license and the restrictions placed on use and transfer of the software), and thus could not resell the software to another party.  Another pro-license case was ProCD, Inc. v. Zeidenberg, which recognized the validity of a shrink-wrap license, which is a license contained inside the purchased package.  Shrink-wrap licenses frequently accompany software.  Upon opening the package, a user can reject the license agreement by not installing the software and returning it.

Similar to software, eBooks have been licensed, not sold, enabling greater restrictions on eBooks.  The eBook User’s Bill of Rights, mentioned earlier, expressed dissatisfaction with the license arrangements.  Instead, it advocates ownership and application of Copyright’s First Sale doctrine, which permits a valid purchaser to transfer the copyrighted work to another.  If library purchasers were eBook owners instead of licensees, publishers would not be able to impose restrictions, such as caps on the number of circulations.  Publishers are unlikely to capitulate to such library demands, particularly as the eBook business booms among non-library consumers.

Who is Liable?

There are many theories of liability under which some combination of the medical professionals involved can be held liable.  Technicians may still be liable under a general negligence theory.    Hospitals can be found liable under agency or vicarious liability for the actions of its employees (or apparent employees) and under theories of corporate negligence, which recognize duties such as oversight and adoption of “adequate rules and policies.” See Thompson v. Nason Hospital, 591 A.2d 703.  Furthermore, physicians and nurses have reporting and oversight responsibilities which they may breach especially often where they are involved in reading X-ray scans.

One party that is probably less likely to be liable is the manufacturer.  In order to hold the manufacturer liable in such a case, plaintiffs would have to plead a design defect.  The majority of jurisdictions use a risk-utility analysis—essentially a two-prong balancing test requiring the plaintiff show that a reasonable alternative design would have reduced the plaintiff’s harm and that the defendant’s failure to adopt the reasonable alternative design has rendered the product unsafe. (See Restatement (Third) of Torts: Products Liability § 2(b))  Some courts use a consumer expectation test, where the point is to determine whether the product meets consumers expectations, however, even this standard might prove difficult in an area where consumers probably do not have very evolved or technical expectations.  Furthermore, the Restatement Third advocates an even higher standard for medical devices.  Section 6(c) articulates the standard, “A prescription drug or medical device is not reasonably safe due to defective design if the foreseeable risks of harm posed by the drug or medical device are sufficiently great in relation to its therapeutic benefits that reasonable healthcare providers, knowing of such foreseeable risks and benefits, would not prescribe the drug or medical device for any class of patients.” Id at §6(c).  Such a standard requires a plaintiff so show that the product is essentially of no benefit to any class of patients.  Thus, it would prove difficult to hold manufacturers liable for medical devices that have such wide spread acceptance, use, and benefit.

Preventative Solutions

As the article points out, legislative and institutional solutions are warranted.  State licensing requirements, regulation, and certification of technicians would undoubtedly reduce instances of lack of knowledge and dangerous use of the complicated technology.  Hospital policies that require continuing education, certification, and oversight would likewise contribute to more professional and knowledgeable employees.  Many of these suggestions are part of the Constancy, Accuracy, Responsibility and Excellence in Medical Imaging and Radiation Therapy (CARE) bill, a bill that would institute standards, certification, and education requirements for technicians and other imaging and radiation specialists. However, this bill has become a casualty to the political process.  Unfortunately, this gap in both liability and legislation leaves us uncertain as to whose responsibility it is to fill it.

Under the Patient Protection and Affordable Care Act signed into law last year, physicians and hospitals can receive a financial incentive of up to $63,750 if they switch from paper records to an EMR system. At the same time, starting with 2015 providers will be penalized by being denied a certain percentage of their Medicare and Medicaid collections if they do not switch from paper to electronic records.

Advantages and risks of an easier exchange of information among various medical providers

Especially for providers in a hospital or multi-specialty clinic, the centralized electronic storage of data brought about by the EMR greatly reduces logistical issues. Enhancing and streamlining the data flows ensures that providers can more easily coordinate their care with that of the patients’ other providers. From a financial perspective, a centralized database simplifies the billing of medical services.

The greatly increased flow of information also has its still unresolved issues, however. For example, physicians may receive unsolicited information from insurance companies about the medical condition of their patients that pertain to an unrelated specialty, such as, for example, an orthopedic surgeon who finds out by chance about an endocrinologic condition of one of his patients. Is this physician legally or ethically obligated to contact the patient’s primary care physician in order to ensure that the patient receives the endocrinologic care he needs?

Potentially increased malpractice risk

Many medical providers are concerned that implementing Electronic Health Records may increase rather than decrease their malpractice liability risk. Apart from possible mistakes stemming from the transition to a new and unfamiliar technology, other potential sources of errors are information entered incorrectly, crashes, “bugs” and other technical failures. Furthermore, documentation gaps may arise if the practice uses a combination of paper and electronic records. A recent study in the New England Journal of Medicine revealed that practices that use a combination of paper and electronic records have a higher rate of failure to inform patients of abnormal test results than practices that worked with either only paper or only electronic records. On the plus side, prescribing drugs electronically can reduce errors, as the Electronic Medical Records system analyses the patient’s existing medications and provides specific instructions and warnings to physicians regarding their compatibility with the drug to be prescribed. Also, paper records are often poorly legible – this potential source of error is eliminated by an EMR.

Potential benefits in medical research vs. abuse of data leakage

While EMRs currently are standalone systems used in a single organization, they can be theoretically expanded to cover entire networks of differing entities. That would entail a number of benefits, for example, in the area of medical research: data could be gathered quickly from a large number of patients. On the other hand, wide scale use of individual patient data raises serious privacy concerns. Limiting access to this sensitive medical data to those absolutely necessary (medical providers and billing clerks) is a serious concern. Medical data privacy is regulated by the Health Information Portability and Accountability Act (HIPAA).

Some commentators predict that the interoperability of EMR systems will lead to massive privacy breaches. The unauthorized access to such interconnected data by only one person would enable him or her to abuse a plethora of information.

Current technology does not yet adequately ensure that information will be adequately made anonymous. Insurance companies could potentially use electronic medical records to single out unwanted patients. Especially life insurance companies are very interested in this data.

Summary

Electronic Medical Records provide many convenient features to the medical community: ease of record-keeping and information sharing among various providers, storage of large amounts of data, as well as a better accountability regarding past occurrences. Therefore, despite its many potential drawbacks and unresolved risks, Electronic Medical Records will likely replace paper-based records in the next ten to fifteen years.

Predator Drones: Computations and Casualties

Almost 150 years ago, Herman Melville’s “A Utilitarian View of the Monitor’s Fight” recognized and lamented the dehumanizing efficiency of mechanized warfare, but even after the unprecedented rate of technological development since the Civil War, his description of the Monitor, the Union’s first iron-clad warship, seems hauntingly prescient of the Predator Drones used today in Iraq, Afghanistan and Pakistan:

Deadlier, closer, calm ‘mid storm;
No passion; all went on by crank.
Pivot, and screw,
And calculations…

While much has been said about the ambiguous morality of unmanned drone warfare and its potential for desensitizing violence, a surprisingly low-profile case (now settled) regarding the drones’ allegedly pirated and faulty positioning software exposes a new swathe of legal issues, namely the allocation of liability in the event of system error and/or failure when the machine or software used potentially contributes as much if not more to the decision-making process than the individual using the mechanism. As Melville later describes the “sailors”:

War yet shall be, but the warriors
Are now but operatives…

While the details of the case are hazy (and will remain so since the two parties have recently settled, upon which Netezza was acquired by IBM for $1.7 billion), ISSI alleged that Netezza illegally “hacked”  ISSIs’ Geospatial Toolkit and Extended SQL Toolkit and then packaged them with Netezza’s own data analysis programs, which Netezza sold to the CIA for use in unmanned Predator Drones.

Particularly unsettling is evidence that both companies, and perhaps the CIA itself, knew that the software was faulty and not ready for production, potentially causing the Drones to miss their targets by up to 40 feet. The question then, is, when civilians die because of faulty targeting software, who should be held responsible? The CTO of ISSI expressed concern that his company could be held liable, and this concern at least in part motivated ISSI’s lawsuit to enjoin the use of its software in the drones.

ALADDIN: Letting the Robots Decide

ALADDIN (Autonomous Learning for Decentralized Data and Information Networks), a joint project between the British defense contractor BAE systems and several of the top universities in England (including Oxford), reimagines the decision making process during warfare, disaster relief and other volatile high-risk situations. Essentially, by allowing the various robots or units (fire alarms, etc.) to bargain amongst themselves for resources and to determine various courses of action by comparing each units own data and assessment of the situation, the developers are optimistic that the decision-making process will be more effective than if a group of human beings, with all their notorious inefficiencies and inconsistencies, were to make such decisions.

However, ALADDIN seems to take “responsibility” even further out of human hands, and during war or disaster, decisions may result in the loss of life or other severe harms. If an ALADDIN-like program were to respond automatically, who should be held liable when the program decides on a disagreeable or morally reprehensible course of action? The Royal Academy of Engineering published a report exploring culpability in an automated world, even going so far as considering the idea of blaming a machine. The report ultimately concludes that most importantly, such problems need to be brought into the public forum so that as fully autonomous systems are introduced, society is prepared to handle the ramifications of utilizing such systems.

Google Autonomous Cars: Automatic for the People

Google recently announced that it has successfully developed automated cars. Like the ALADDIN Developers, Google is optimistic that its technology will result in fewer accidents and more efficient transportation overall. Using a wide array of sensors and high-speed data processors, Google claims to have driven 140,000 miles sans driver, with only one accident in which another driver apparently rear-ended Google’s automated vehicle.

While actual wide-scale use of automated driving systems is still a long way off, liability allocation will almost certainly be put in place before driverless vehicles are given the green light, and some practitioners are already exploring who would be held liable in the event of a crash. While product liability will play a large part when the navigation devices or systems fail, the human “driver” may still be held responsible, as any such system will likely contain a human override function in case of emergency or system failure.