Tuesday, November 01, 2016

Appellant Walker loses appeal against Harvard University in case involving copying of dissent in Bilski

Walker v. Harvard, Cosgrove, Weinreb, 2016 U.S. App. LEXIS 19164 (CA1 Oct. 24, 2016 ) was an appeal by former law student Walker of an unfavorable summary judgment decision.

The decision by CA1 includes a brief summary:

Between 2006 and 2009 Megon Walker ("Walker") attended Harvard Law School ("HLS"). Walker was a member of the staff of a student-run law journal, the Journal of Law and Technology ("JOLT"). During her final semester at HLS, Walker delivered a draft article (the "Note") to senior staff of JOLT. After concerns arose among the senior staff regarding the Note, an investigation was launched by HLS. The HLS Administrative Board (the "Board") subsequently held a hearing and found the Note contained plagiarism in violation of the HLS Handbook of Academic Policies (the "Handbook"). Walker received a formal reprimand and a notation regarding the matter was added to her transcript. Despite the reprimand, Walker graduated on time from HLS. However, after the notation was placed on her transcript, at least one law firm rescinded a lucrative offer of employment.

Seeking to have the notation removed from her transcript, Walker initiated this suit asserting claims for breach of contract and defamation against the President and Fellows of Harvard College ("Harvard")1; Ellen Cosgrove ("Cosgrove"), then-Dean of Students at HLS; and Lloyd Weinreb, a Professor at HLS and Chair of the Board in 2009 (together "Defendants").2 After the completion of discovery and a stipulation of dismissal as to some claims, Defendants filed their Motion for Summary Judgment. The district court granted summary judgment for Defendants on all counts and dismissed the action. Walker has appealed the ruling on two of the counts. After reviewing the issues de novo, we affirm.

At issue was proper citation in a comment about a patent case:

During her last year of law school, Walker applied to write a comment for JOLT on a recently decided patent case.
In early March, when JOLT staff began editing the Note, concerns arose that much of Walker's argument was derivative of the dissent in the case about which she was writing. The Article Editor for the Note prepared a summary of the draft for comparison with other publications and Ungberg compared the Note with the dissent from the case. On March 11, 2009, Volftsun, the JOLT staffer who had spoken with Walker at the IT Help area on February 16, 2009, sent an email offering to help Walker fix issues with the Note. Around the same time, Hamburger used Google to run searches on full sentences from the Note. He created an annotated version of the Note showing which sentences were copied from other sources. He stopped after documenting 23 instances. In mid-March, Hamburger and Kitzinger discussed their attribution concerns with Walker and then with Cosgrove, the Dean of Students.

As to legal standards:

Where, as here, a private-school student or former student sues a school alleging breach of contract, the standard of reasonable expectation applies. Schaer, 735 N.E.2d at 378; see also Driscoll, 873 N.E.2d at 1185-86. Under this reasonable [*10] expectation standard, courts ask, in interpreting the contractual terms, "what meaning the party making the manifestation, the university, should reasonably expect the other party [, the student,] to give it." Schaer, 735 N.E.2d at 378 (quoting Cloud, 720 F.2d at 724). A breach of contract is established if the facts show that the university has "failed to meet [the student's] reasonable expectations." Id.

The appellant lost:

Walker has not presented facts a student could have relied upon to form a reasonable expectation that the plagiarism policy had the meaning she is asserting. The HLS plagiarism policy refers to "[a]ll work submitted," a phrase that on its face applies to any student work for any academic or nonacademic exercise, whether in draft or final form, turned in to an instructor or student editor of an extracurricular law journal.

The district court decision [82 F. Supp. 3d 524; 2014 U.S. Dist. LEXIS 178301; Judge Rya Zobel] identifies the patent case in question as In re Bilski:

In plaintiff's third year of law school, JOLT accepted her application to write a case comment on In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc),

The dissent in Bilski, written by Judge Newman, involved three judges of the CAFC ( NEWMAN; MAYER; RADER ) and began:

The court today acts en banc to impose a new and far-reaching restriction on the kinds of inventions that are eligible to participate in the patent system. The court achieves this result by redefining the word "process" in the patent statute, to exclude all processes that do not transform physical matter or that are not performed by machines. The court thus excludes many of the kinds of inventions that apply today's electronic and photonic technologies, as well as other processes that handle data and information in novel ways. Such processes have long been patent eligible, and contribute to the vigor and variety of today's Information Age. This exclusion of process inventions is contrary to statute, contrary to precedent, and a negation of the constitutional mandate. Its impact on the future, as well as on the thousands of patents already granted, is unknown.

This exclusion is imposed at the threshold, before it is determined whether the excluded process is new, non-obvious, enabled, described, particularly claimed, etc.; that is, before the new process is examined for patentability. For example, we do not know whether the Bilski process would be found patentable under the statutory criteria, for they were never applied.

The innovations of the "knowledge economy"--of "digital prosperity"--have been dominant contributors to today's economic [page 977] growth and societal change. Revision of the commercial structure affecting major aspects of today's industry should be approached with care, for there has been significant reliance on the law as it has existed, as many amici curiae pointed out. Indeed, the full reach of today's change of law is not clear, and the majority opinion states that many existing situations may require reassessment under the new criteria.

Uncertainty is the enemy of innovation. These new uncertainties not only diminish the incentives available to new enterprise, but disrupt the settled expectations of those who relied on the law as it existed. I respectfully dissent.

As a footnote, Cosgrove was a student at UofChicago Law: 1988 – 1991 and was an associate dean/dean at Chicago during the years: 1995 – 2004 .


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