Engineering Law Professor Barich Class 2

Engineering Law Professor Barich Class 2

Reminders Links and materials at joebarich.com Coursepacks available at IUB Syllabus available online Exam 1 2/15, Exam 2 3/28 in class – Exam 3 5/3 via Zoom and Canvas Conflicts people – notify me in advance Pop Quizzes at any time – be sure you understand the materials as we go along Questions from last time? Joe Barich, 2024. 2

Class 1 Summary -1 Constitutional Law – The US Constitution is the supreme law – Ultimate people-government contract Congressional Powers – 18 specific enumerated powers – Patents and Copyrights – Create federal courts inferior to Supreme – Commerce Clause is used to support many laws Joe Barich, 2024. 3

Summary -2 Limitations on Congressional Power – Always have Habeas Corpus – No ex post facto laws – 10th Amendment States – Full Faith and Credit – Extradition Joe Barich, 2024. 4

Summary -3 Supreme Court – Seized for itself the power to declare laws “unconstitutional” – Gets to review for constitutional compliance: State Laws State Court Decisions State Executive Actions As well as Federal Laws, Decisions and Actions Joe Barich, 2024. 5

Summary -4 The Commerce Clause – Used as a basis for many laws since the 1930s that are outside the 18 enumerated powers – A few recent laws have been declared unconstitutional Engineers are called on to protect our constitutional freedoms – Few members of our society have the technological expertise to know when their rights are being trampled on Joe Barich, 2024. 6

Summary - 5 Congress – 100 Senators – 435 representatives Congressional Powers – Each Chamber has its own special powers Senate - treaties, appointments, impeach trial House – tax bills, impeachment articles – 18 specific enumerated powers in constitution, but commerce clause Joe Barich, 2024. expansion 7

Summary - 6 To become a law – Bill is introduced (any member) – Referred to committee – Committee - hearing, amendment, action – Chamber - debate amendment, action – Concordance with other chamber – President – veto, sign, “delay 10 and it’s in”, “delay 10 and pocket veto” Joe Barich, 2024. 8

Summary - 7 Learn to work with Lobbyists – Regardless of industry, they are useful for aligning interests of government with your company (e.g., get money) – Many government programs Presidential “laws” – Executive orders – Signing statements Joe Barich, 2024. 9

Summary - 8 Treaties – 3 ratification procedures – Treaty (can go beyond 18 listed powers, can’t contradict constitutional protections) – Congressional-Executive Agreement – Sole Executive Agreement Congressional Law – USC Agency Regulations – CFR States have their own constitutions providing at least as much rights as US Federal laws may preempt state laws Joe Barich, 2024. 10

Federal Agencies - 1 Created to help administrate various aspects of the government Vast number of Federal Agencies – see links for a listing – including: – Independent Federal Agencies SBA (Small Business Association) EPA, NASA, SSA (Social Security) – Federal Executive Departments (Cabinet) Defense, Justice, Labor, Commerce Joe Barich, 2024. 11

Federal Agencies - 2 Most Agencies are in the Executive Branch – Cabinet of the President – Created by Congress, but overseen by President Head nominated by President and approved by Congress Agency head serves at pleasure of President Agencies can have (limited) legislative, judicial, and executive power Agencies expanded around the time of the new deal – National Labor Relations JoeBoard, Barich, 2024. etc. 12

Federal Agencies - 3 Most Agencies are governed by the Administrative Practices Act (APA) – 5 U.S.C. 500 et seq. (1946) 4 Main Goals – Require agencies to keep the public informed of their organization, procedures and rules – Provide for public participation in the rulemaking process – Establish uniform standards for the conduct of formal rulemaking and adjudication – Define the scope of judicial review Joe Barich, 2024. 13

Agency Rulemaking In the statute creating the Agency? – Legislative Rule – a rule specifically recited in the agency’s authorizing statute – Interpretive Rule – implements a statutory objective, but is not explicit in the statute Substantive or Procedural? – Substantive Rule – Direct impact on rights – Procedural Rule – mere procedure What evidence can be submitted? Joe Barich, 2024. How many pages should submissions be? 14

How Agencies Make Rules 1 have various Different agencies rulemaking authority by statue, but Agency drafts a Proposed Rule Publish in Federal Register as “Notice of Proposed Rulemaking” Invite Public Comment Revision to Rule Issue Final Rule – Also published in Federal Register – Then codified in CFR Joe Barich, 2024. 15

The Federal Register Official journal of the federal government – Includes just about everything – Published daily – Proposed agency rules are published in the Federal Register and become part of the CFR when final Compiled by Office of the Federal Register within the National Archives and Records Administration and printed by the Government Printing Office Public domain (As are all U.S. govt works) Joe Barich, 2024. 16

Agencies 1 2 Joe Barich, 2024. 2010. 17

How Agencies Make Rules 2 What if you don’t like the rule? – Public comment and lobby for change – Sue Agency in Federal Court (Judicial Review) – Injunction to prevent them from implementing their rule Courts give deference to Agency rulemaking But Agency rules can be found to exceed the scope of the Agency’s authorizing statute or run contrary to it be too vague to be enforced (potential for Joe Barich, 2024. unfair enforcement) 18

Example – Proposed PTO Rules Patent and Trademark Office (PTO) Proposed Rules - 2007 – Rules proposed limits on patent applications Limited number of claims Limited number of Continuation applications Likely to impair ability to obtain your patent – Published in Federal Register – Solicited Comment Comments were overwhelmingly negative PTO implements Rules anyway Joe Barich, 2024. 19

Proposed PTO Rules - 2 PTO (Commissioner Dudas) sued by Tafas and GSK in the Eastern District of Virginia to prevent the rules from going into force District Court agrees and enjoins PTO – “Because the USPTO’s rulemaking authority under 35 U.S.C. § 2(b)(2) does not extend to substantive rules, and because the Final Rules are substantive in nature, the Court finds that the Final Rules are void as ‘otherwise not in accordance with law’ and ‘in excess of 20 Joe Barich, 2024. statutory jurisdiction [and] authority.’ 5

Proposed PTO Rules - 3 Commissioner Dudas Appeals New Administration, New Commissioner Kappos engages community, walks away from rules – “The USPTO should incentivize innovation, develop rules that are responsive to its applicants’ needs and help bring their products and services to market,” Kappos said. “These regulations have been highly unpopular from the outset and were not well received by the applicant community. In taking the actions we are announcing today, we hope to engage the applicant community more effectively on improvements that will help make the USPTO more efficient, responsive, 21 Joe Barich, 2024.

Agency Judicial Power Often, the Agency’s rules call for a hearing when the Agency exercises judicial power – FCC, National Labor Relations Board, PTO Agency hearing determinations may be appealed to Federal Courts once the remedies available at the agency are exhausted PTO- Patent Trial and Appeal Board - Federal District Court (DC) - Federal Circuit Court of Appeals - Supreme Court – Example – In re Bilski Joe Barich, 2024. 22

Agencies Can Sue You Agencies can investigate and bring an action against you – SEC - Stock Trading – FCC – Indecency Fine for fleeting expletives and brief nudity struck down for insufficient notice, but FCC may revise – EPA - Polluting Action may be for money and/or other remedy – Injunction to stop polluting or clean up – Violating injunction is contempt of court Joe Barich, 2024. 23

Engineers and Agencies - 1 You will be dealing with many agencies and their rules in your professional career Many agencies provide useful services – Ex - Small Business Association (SBA) Agencies also have: – Programs that will pay for R&D – Technology transfer - SBIR, STTR – Large procurement budgets Joe Barich, 2024. 24

Engineers and Agencies - 2 Many of the rules you will operate under in practice come from agencies – FCC (spectrum), EPA, Customs, PTO Be aware of agency rules that impact you Monitor agency rulemaking and comment when desirable Take action when necessary Agencies can also be lobbied Joe Barich, 2024. 25

Professional “Laws” Fail to follow professional practices? – Lose your License? Fail to follow technical standards? – Patent Infringement? Fail to follow company policy? – Involuntary unpaid vacation? Joe Barich, 2024. 26

Professional Licensing -1 Certain professions are subject to licensing – Lawyers – Doctors – Engineers – Undertakers, etc. Typically enforced by state statutes and agency – Division of Professional Regulation – Illinois Attorney Registration and Disciplinary Commission – “The Bar” Joe Barich, 2024. 27

Professional Licensing - 2 Licensing body makes and enforces professional standards – Inputs from those in practice – Continual evolution as to best practice Engineering license is required for many projects, especially structural & civil, govt. Professional standards are not the same as negligence standards – License typically only removable by agency, not court Joe Barich, 2024. 28

Illinois Engineer Licensing 1 Professional Engineering Practice Act of 1989 - 225 ILCS 325 Division of Professional Regulation Illinois Administrative Code TITLE 68: PROFESSIONS AND OCCUPATIONS CHAPTER VII: DEPARTMENT OF FINANCIAL AND PROFESSIONAL REGULATION SUBCHAPTER b: PROFESSIONS AND OCCUPATIONS PART 1380 THE PROFESSIONAL ENGINEERING PRACTICE ACT OF 1989 Joe Barich, 2024. 29

Illinois Engineer Licensing 2 225 ILCS 325/10 requirements for PE: –4 –4 –8 –8 year degree years of experience hour fundamentals exam (EIT) hour practical exam 225 ILCS 325/14 your PE seal – Must officially stamp plans – Penalties if done negligently Joe Barich, 2024. 30

Illinois Engineer Licensing 3 engineer's seal on “The use of a professional technical submissions constitutes a representation by the professional engineer that the work has been prepared by or under the personal supervision of the professional engineer or developed in conjunction with the use of accepted engineering standards. The use of the seal further represents that the work has been prepared and administered in accordance with the standards of reasonable professional skill and diligence.” Better find out the standards and be sure to employ them Don’t take and use somebody’s seal – Don’t allow employer to pressure you to sign 31 Joe Barich, 2024. off on plans you have not personally reviewed

Standards Setting -1 Why have standards? – So that devices can interoperate predictably – Large company – want to publish how your devices work so that secondary developers can make add-on products – Inter-company – several companies working in same area pool patents on the standard and take licenses – Small company – so your device is compatible with as many customers as possible Joe Barich, 2024. 32

Standards Setting - 2 Many standards setting bodies – ISO – International Standards Organization – IEEE – Institute of Electrical and Electronics Engineers – W3C - World Wide Web Consortium – MPEG LA – Motion Pictures Expert Group Licensing Authority – Bluetooth SIG – Blu-Ray Disc Association Joe Barich, 2024. 33

How Are Standards Set? - 1 “Inclusive” Model (IEEE) – Initiate Project Can be initiated by anyone, but needs IEEE Standards Board Approval – Develop Working Group Primarily individuals, not corporations – Write Draft – Ballot Draft – Final Approval IEEE Standards Board Review Committee – Publish – Reaffirm – 5 year validity period Joe Barich, 2024. 34

How Are Standards Set? - 2 “Proprietary” Model – MPEG LA, Blu-ray – Only large companies with needed IP are typically invited to join – Procedure is generally similar Initial draft Revisions Approval Publish – Pool IP and grant license to all – Much more control by large players Joe Barich, 2024. 35

Standards Setting Concerns Both “Inclusive” and “Proprietary” may involve patents, but may not Standards setting may involve antitrust (unlawful anti-competitive/monopoly) activities – Justice Dept., FTC concerns Required disclosure of IP rights that may be infringed – no “hold up” Members agree to license “essential” IP RAND - Reasonable And NonDiscriminatory – Sometimes FRAND (Fair) Joe Barich, 2024. 36

RAND Royalty Licensing MPEG LA Failure to pay exposes you to potential suit on 39 pages of patents from 20 companies MPEG-2 encoding or decoding hardware or software (DVD player, iPhone, computer) – 2/unit after January 2010 – Down from 4/unit before January 2002 MPEG-2 packaged media (DVD) – 0.016 /unit after January 2010 – Down from 0.04 /unit before Sept 2001 Joe Barich, 2024. 37

Rambus and the JEDEC Rambus joins the Joint Electron Devices Engineering Counsel (JEDEC) Tries to interest them in implementing Rambus patented tech in the standard Later withdraws from JEDEC and refuses RAND licensing Result: Massive litigation – District courts, Federal Trade Commission – Huge fees Joe Barich, 2024. – Still litigating 20 years later 38

Suggestions Insist on RAND licensing and disclosure Watch out for “essential” technology definition – define broadly Advance agreement as to licensing payment can be good Include customers, not just manufacturers in standards body Note: Eventually underlying patents will expire Joe Barich, 2024. 39

Your Company’s “Law” - 1 Your employment with your company is governed by the Employee Handbook – Your “agreement” for employment – Sets forth your company’s policies and procedures for dealing with employees – Can be published online – Ignorance is no legal excuse – Binding on you even if you don’t sign it – even if you did not know it existed – Also binding on the company! Joe Barich, 2024. 40

Your Company’s “Law” - 2 Several sections required by law – Family Medical Leave Act (FMLA) Additional various state requirements Company must follow its own procedures – Failure may be discrimination or unlawful – Example: Can sue company for wrongful termination if they did not follow termination procedure in the Joe Barich, 2024. handbook 41

Questions? See you next class! Next Time: Courts and Lawsuits Joe Barich, 2024. 42