Ghost in the New Machine: How Alice Exposed Software Patenting's Category Mistake, 16 N.C. J. L. & Tech. 623 (2015)
The Alice Court's characterization of computer programming has effectively repudiated, inter alia, the doctrine that programming a general-purpose computer creates a patent-eligible "new machine." This Article revisits In re Bernhart, the first holding based on the "new machine" principle, concluding that the Court of Customs and Patent Appeals committed a category mistake in conducting its nonobviousness analysis. This suggests that § 101 has a unique role to play in ensuring the analytical coherence of the other tests for patentability, and that step two of the Mayo/Alice test could helpfully enforce the doctrinal distinction between a patent-eligible "method or means" and an unpatentable "result or effect."

Alappat Redux: Support for Functional Language in Software Patent Claims, 66 SMU L. Rev. 491 (2013)
The Federal Circuit has suggested in some recent cases that any algorithm can serve as adequate structural support for a means-plus-function element in a software patent claim under § 112(f). A recent proposal by Mark Lemley fully endorses this proposition and seeks its broader application. The concept of an algorithm, however, is too slippery to serve as the basis for such a rule. In this Article, I argue that this overreliance on the algorithm concept originated in a revisionist gloss on the Federal Circuit's 1994 Alappat decision. Informed by a closer reading of what Alappat actually has to say about claim construction under § 112(f), I propose a more stable "concrete causation" standard that is applicable to all technologies, but would be especially well-aligned with the reforms in the software field intended by Lemley's proposal.

Computational Complexity and the Scope of Software Patents, 39 Jurimetrics 17 (1999)
This article proposes that the reverse doctrine of equivalents should allow as a defense to software patent infringement those improvements in computational complexity that are superlinear in the parameters of the problem solved by the underlying algorithm, and presents four independent rationales for such an approach.

On Abstraction and Equivalence in Software Patent Doctrine:  A Response to Bessen, Meurer and Klemens, 16 J. Intell. Prop. L. 197 (2009)
Recent books by Professors James Bessen and Michael Meurer and by economist Ben Klemens have argued that software warrants technology-specific treatment in patent doctrine. This article argues that the authors' categorical claims about software are unsupported by computer science, and therefore cannot support their sweeping proposals regarding software patents as a matter of law. Such proposals remain subject to empirical examination and critique as policy choices, and are unlikely to be achieved through judicially developed categorical distinctions.

Gene Probes as Unpatentable Printed Matter, 20 Fed. Cir. B.J. 528 (2011)
This article argues that the printed matter doctrine is applicable to DNA oligonucleotide molecules because they are disposed to store nucleotide sequence information in a manner analogous in all relevant respects to other substrates that may be more intuitively recognizable as information storage media, such as laser-printed text on paper.

Artful Prior Art and the Quality of DNA Patents, 57 Ala. L. Rev. 975 (2006)
This article argues that a focus on disclosed molecular structure in evaluating DNA patent claims has resulted in a significant discrepancy between the prior art that is available to the patent system and the scientific community’s understanding of the state of the art. To illustrate and address this problem, this article presents an example of an “artfully drafted” prior art reference: a digital document [On the Preparation and Utilization of Isolated and Purified Oligonucleotides, CD-ROM (2002)] that discloses the sequences of 11 million oligonucleotides (short DNA molecules) and methods of making and using each, which was derived from the previous scientific literature without further inventive skill, and has now been cited in more than 30 pending prosecutions.

Research in the Shadow of DNA Patents, 87 J. Pat. & Trademark Off. Soc'y 846 (2005)
In recent years, the Federal Circuit and the Patent Office have characterized the legal doctrines governing the patentability of DNA molecules as essentially settled. This Article argues that the factual premises underlying those doctrines are increasingly being undermined by ongoing developments in biotechnology. Specifically, it may soon be possible to demonstrate that the patenting of DNA molecules retards the identification and sequencing of so many other useful DNA molecules that patent-driven DNA research is a self-defeating enterprise. To this end, this Article provides quantitative evidence of the preclusive effects of DNA patenting on specific laboratory procedures in genetic research.

The Ontological Function of the Patent Document, 74 U. Pitt. L. Rev. 263 (2012) 
With the passage and impending implementation of the “first-to-file” provisions of the America Invents Act of 2011, the U.S. patent system must rely more than ever before on patent documents for its own ontological commitments concerning the existence of claimed kinds of useful objects and processes. This Article provides a comprehensive description of the previously unrecognized function of the patent document in incurring and securing warrants to these ontological commitments, and the respective roles of legal doctrines and practices in the patent system’s ontological project. Among other contributions, the resulting metaphysical account serves to reconcile competing interpretations of the written description requirement that have emerged from the Federal Circuit’s recent jurisprudence, and to explain why the patent system is willing and able to examine, grant and enforce claims reciting theoretical entities. While this Article is entirely descriptive, it concludes by identifying promising normative and prescriptive implications of this work, including the formulation of an appropriate test for the patent-eligibility of software-implemented inventions in the post-Bilski era.

The Elusive "Marketplace" in Post-Bilski Jurisprudence, 34 Campbell L. Rev. 663 (2012)
The Supreme Court's 2010 decision in Bilski v. Kappos appears to have provided inadequate guidance to the courts and the Patent Office regarding the scope of the abstract-ideas exclusion from patentable subject matter.  Federal Circuit Chief Judge Randall R. Rader, however, appears to have found in that decision a clear vindication of his own view that the machine-or-transformation test is incorrectly grounded in "the age of iron and steel at a time of subatomic particles and terabytes," and thus fails, for example, to accommodate advances in "software [that] transform[] our lives without physical anchors."  Chief Judge Rader has subsequently authored a series of opinions identifying the "marketplace" as an operational context in which a claimed invention is not likely to be unpatentably abstract.  This article argues that this reliance on the "marketplace" is untenable and should form no part of patent-eligibility doctrine.

Decoding Microsoft: A First Principles Approach, 40 Wake Forest L. Rev. 1 (2005)
Applying the methods developed in “Antitrust Analysis in Software Product Markets,” this article argues that the courts, the litigating parties, and most commentators misconstrued the Microsoft tying claim by relying on the inaccurate intuition that the allegedly tied software products were comprised of software code. The article reviews the complex litigation history of the tying claim, pointing out where these errors occurred. The article then reexamines the tying claim under each of the three proposed alternative approaches (the Jefferson Parish, “facially plausible benefits” and rule of reason standards), and concludes that the factual record on remand to Judge Kollar-Kotelly would have supported tying liability and that Microsoft now enjoys illegitimately acquired monopoly power in the market for Web browser software products.

Installed Base Opportunism and the Scope of Intellectual Property Rights in Software Products, 10 Wake Forest Intell. Prop. L.J. 323 (2010)
In contrast to the D.C. Circuit’s dismissal of Microsoft’s copyright counterclaims, antitrust challenges to IBM’s current mainframe licensing practices thus far have encountered broad judicial deference to IBM’s patent rights. The purpose of this Article is to analyze and critique these contrasting approaches and to situate the current litigation and investigation involving IBM in the still-unsettled doctrinal context at the intersection of intellectual property and antitrust law.

A Case of Insecure Browsing: Exploring Missed Opportunities in the Microsoft Antitrust Suit, Raleigh News & Observer, Sept. 30, 2004
As the deadline for certiorari passed, officially ending the Microsoft litigation, this op-ed article argues that the failure to redress Microsoft's tying conduct has resulted in serious security hazards and wasted judicial resources.

An Anti-Competitive Get Together, Raleigh News & Observer, Oct. 4, 2011 (with Barak Richman)
Determining how an acquisition or a merger will affect the larger economy is routinely complicated and often invites vigorous debate. But the proposed AT&T-T-Mobile deal presents an easy case.

Analyzing Mergers in Innovation Markets, 38 Jurimetrics 119 (1998)
This article presents a probabilistic framework for the analysis of mergers in innovation markets, and shows that this technique is preferable to the current approach in four ways.  First, it more thoroughly accounts for the uncertainty inherent in definitions of innovation markets and in allegations of anticompetitive effects in innovation markets.  Second, it more accurately measures the structural effects of a merger on a market that faces the prospect of technological change.  Third, it separates the fact-specific allegation that a merger will reduce the probability of successful innovation from the controversial general proposition that mergers hamper innovation.  Finally, it construes innovation markets in a way that clearly falls within the cognizance of Section 7 of the Clayton Act.

Antitrust By Chance: A Unified Theory of Horizontal Merger Doctrine, Note, 106 Yale L.J. 1165 (1997)
This note reinterprets the federal antitrust agencies’ Horizontal Merger Guidelines as an internally consistent system of statistical inference that accounts for the dynamic behavior of market structure.

Opening Up Facebook's Privacy Technology, Raleigh News & Observer, May 18, 2012
If the reverse-engineering study reported in Differential Privacy is correct about the kind of privacy technology Facebook is using, there is no reason for Facebook to keep its details secret.

Making the World Wide Web Safe for Democracy: A Medium-Specific First Amendment Analysis, 19 Hastings Comm. & Ent. L.J. 309 (1997)
This article provides theoretical and empirical analyses of the impact of the Web’s hyperlinked architecture on the structure of democratic discourse, and argues that the First Amendment does not foreclose redistributive, content-neutral regulation of media power on the Internet.

The Learned Hand Unformula for Short-Swing Liability, 91 Wash. L. Rev. 1523 (2016)
Section 16(b) of the Securities Exchange Act of 1934 allows for the recovery of short-swing profits realized by certain insiders from trading in a corporation’s stock within a period of less than six months. Three generations of corporate law students have been taught the “lowest-in, highest-out” formula that is intended to maximize the disgorgement of short-swing profits under section 16(b). Arnold Jacobs’s 1987 treatise presented two hypothetical examples where the formula fell short of the intended maximum, but courts, commentators, and practitioners have largely ignored these theoretical challenges to the formula’s validity. This Article identifies Gratz v. Claughton as the first reported real-world example of the formula’s failure. Ironically, Gratz has been taught and cited for more than sixty years as a leading authority for the formula’s use, not least because of its distinguished author, Judge Learned Hand. This Article argues that Gratz has been misunderstood and that Hand wisely adjudicated this complex case without prescribing or endorsing the formula in any way. It also shows that the formula has no need of Gratz’s endorsement, as long as the formula is correctly interpreted as limited to simpler cases where it is mathematically valid. It formalizes and extends Jacobs’s results by showing that the formula may fall short of the maximum by up to fifty percent when misused in more complex cases, and has actually fallen short in another more recent case. Finally, it provides online tools to enable practitioners and judges to calculate short-swing liability correctly in all cases.

Accurate Calculation of Short-Swing Profits Under Section 16(b) of the Securities Exchange Act of 1934, 22 Del. J. Corp. L 587 (1997)
This article provides a general method for accurately calculating short-swing profits under § 16(b) of the Securities Exchange Act of 1934, correcting the widely taught but potentially erroneous “lowest-in, highest-out” algorithm.

The KKK and Vietnamese Fishermen, in DIVERSTORY (working title) (Frank Wu, ed., forthcoming 2002)
This article describes the successful use of an antitrust claim in litigation in the early 1980s to protect a community of Vietnamese American fishermen from racial harassment and intimidation by a private army of white supremacists.

Hate's Harms Persist 25 Years After Raleigh Murder, Raleigh News & Observer, July 26, 2014
A racially motivated murder in Raleigh 25 years ago led to the first federal conviction of a person for hate crimes against an Asian-American.

We relate this decision directly to algorithmic issues by studying the complexity of hashing in the Block PRAM model of Aggarwal, Chandra and Snir, a shared-memory model of parallel computation which accounts for communication locality.  For this model, we exhibit a universal family of hash functions having optimal locality.  The complexity of applying these hash functions to the shared address space of the Block PRAM (i.e., by permuting data elements) is asymptotically equivalent to the complexity of performing a square matrix transpose, and this result is best possible for all pairwise independent universal hash families.  These complexity bounds provide theoretical evidence that hashing and randomized routing need not destroy communication locality, addressing an open question of Valiant.

Virtual Shared Memory: Algorithms and Complexity, 113 Info. & Computation 199  (1993) (with W.F. McColl)
We consider the Block PRAM model of Aggarwal et al.  For a Block PRAM model with n/log n processors and communication latency l=O(log n), we show that prefix sums can be performed in time O(l log n/log l), but list ranking requires time Ω(l log n); these bounds are tight.  These results justify an intuitive observation of Gazit et al. that algorithm designers should, when possible, replace the list ranking procedure with the prefix sums procedure.  We demonstrate the value of this technique in choosing between two optimal PRAM algorithms for finding the connected components of dense graphs.  We also give theoretical improvements for integer sorting and many other algorithms based on prefix sums, and suggest a relationship between the issue of graph density for the connected components problem and alternative approaches to integer sorting.

Permutations on the Block PRAM, 45 Info. Processing Letters 69 (1993)
In present-day parallel computers, the complexity of permuting N data items in shared memory varies, depending on whether large blocks can be used for communication.  The Block PRAM model of Aggarwal, Chandra and Snir is unique among shared-memory models of parallel computation in modeling this phenomenon.  We characterize the Block PRAM complexity of some useful classes of permutations, improving known results.

Complexity Issues in General Purpose Parallel Computing, D.Phil. thesis, University of Oxford (1991)