Tort Law – Any business field is affected by many aspects that may give rise to wrongful acts which may be done by the business or by a different party to a business entity. Tort law thus comes in to deal with any sort of the civil wrongs which may arise in line of doing business, such as negligence which emanates from other sources than breach of contracts (David Ziemer, n.d.).
One of the significant court cases in this category is the Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928). This case is considered to be among the leading in the American tort law in regard to liability to an unanticipated plaintiff (David Ziemer, n.d.). When a civil wrong occurs, both the individual and business could be financially and legally responsible for the injuries caused as a result of negligence. One of the main factor relied upon when determining negligence include the breach of duty by the defendant which they owe to the plaintiff.
The case of Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 was handled by the New York Court of Appeals. In the case, Helen Palsgraf was the plaintiff and was waiting at the Long Island Rail Road station. She was on her way to take her kids to the beach. While boarding, two men tried to get on board before the plaintiff, and one dropped a package while being assisted by railroad employees, and it exploded. The explosion caused a huge coin-operated scale located at the platform to hit Palsgraf. She started stammering after the occasion and ultimately sued the railroad (Palsgraf, Punitive Damages, and Preemption, 2012). She argued that the railroad employees acted with negligence when they were aiding the man, and it was neglect that led to her harm.
The plaintiff first got a jury verdict in which she was to be compensated $6,000, but the decision was appealed by the railroad. On Appellate Division, Palsgraf got 3–2 decision and the railroad appealed once more. In the New York Court of Appeals, the railroad won the case as the court overturned the original jury verdict. It was ruled that there existed no negligence as the employees did not have the duty of care to Palsgraf while they were assisting the man to board because the injury was unforeseeable harm from helping an individual with a package.
A dissent was however made stating that the employee negligently extricated the package thus dislodging it without clear knowledge of the contents in it, thus leading to the explosion which broke the scale and harmed plaintiff who was an intending passenger (Teacher, Law, 2013). The dissention held that regardless of the duty to plaintiff, the doer of negligent act should be held to account for the threat caused to other people’s safety and all its immediate consequences.
The ruling may outwardly appear to be unfair because
if the employees had been more careful with the package, the harm could not
have occurred. However, I agree with the ruling in that it is based on the law
of tort, specifically under the liability clause. The law holds that a tort
liability only occurs in the event that the defendant breaches a duty of care,
which such defendant is owing to the plaintiff, and in turn this act of
negligence leads to injury being sued for. This is the concept which was
accepted in the American tort law after the ruling made by the New York Court
of Appeals (Teacher, Law, 2013). This case shows how the law deals with the proximate
cause of the injury in connection to negligence.
David Ziemer. (n.d.). Duty of care remains thorny
issue in Wisconsin law. Wisconsin Law Journal (Milwaukee, WI)
Palsgraf, Punitive Damages, and Preemption.
(2012). Harvard Law Review, 125(7), 1757–2012
Teacher, Law. (November 2013). Palsgraf v Long
Island Railroad – Case Brief
Apple Company is a US base incorporation incorporated in the US in the year 1976 by Steve jobs. Ever since then Apple Company has witnessed huge milestones in its production, distribution, and marketing of its electronic device majorly the apple phones (Johnson, Phan, Singer & Trinh, 2012). Currently, Apple Company is one of the largest us based companies listed on the stock exchange contributing significantly to the US GDP. Its forms one of the largest multinational companies offering the highest job opportunities both locally and internationally. The company has offered more than 60,000 jobs globally for both full time and part time.
International roles of Apple Company
Customarily, business is expected to deliver or play some roles in the economy. Some of the roles may be economical or social functions. Companies are to structure their overall operation to ensure that the end product of it all defines their contribution to the international business globally. Consequently, Apple Company is not an exceptions or immune to this role. It has to ensure that its functions in the international business by involving herself in various activities that benefit the global trade through its interplay with various economic factors. The discussed under are some of the roles of Apple Company in the international business.
Export promotion. Apple Company has expanded exports to many countries in which it has established its production processes. The apple come has established its production in many countries especially those countries from Asia. The key player comes from Irish and China. Reports and researches assessing the contribution of this on exports of these countries are astounding. It indicates that, for instance, China has mostly benefited from exports of apple products contributing to at least 8% on China’s GDP.
The same spill overs have passed on to other countries in which Apple have established its main production activities. This forms one of the primary roles of the company to support the trade activities of those countries in which they are operating in. In this way, Apple Company has played a major role in international business through export promotion.
Job creation. Apple Company is one of the largest giant multinational companies which have massively created thousands of job opportunities. Apple Company has over 700 production operations across the world. Statistics shows that the company has offered over 60,000 job opportunities globally either directly and indirectly. These jobs are provided either through their factory outlets or through their middlemen and intermediaries who are strategically situated in the various countries.
Revenue creation. Apple Company has largely contributed revenue generation of many countries. When companies operate in the international arena, they are subject to tax payment and other reparation laws which ensure that a certain percentage of revenues generated in those countries are retained and locally promote local activities. Apple has paid millions of taxes to these countries which have helped local people to enhance their lives through productive activities. (Hutt 2017)
Cultivation and promotion of innovation. This is one of the key roles they the company has played in the international business. When it comes to innovation, Apple Company stands conspicuous from the rest of other electronic or mobile phones producers. The company has the culture of developing and promoting innovations throughout its production process. This has led the company to win many global trophies as a leader of global innovation. Studies indicated that the company is strategically studying the markets niche and satisfactory innovating products which satisfy those needs. This innovation is not constrained in their key factory outlets, but it has diffused globally contributing to more innovation into the global business.
Enhance improvement in global supply chains. Apple Company has come up with one of the best supply chains in their marketing strategies. Customary, Apple Company does outsource their raw materials from many countries outside us. This means that they need to have proper supply and delivery channel that ensures that raw material is moved on time to production sites.
In the same way, such channels should ensure that products are moved and delivered to customers on time. In facts, Apple boost of the most efficient supply channels in the international business which other companies globally have adapted to in their supply chains.
Environmental protection role. Apple has had significant role in the international business environment. The company has come up with major policies that ensure the sustainability of the environment. This has involved low carbon emission policies that have ensured the company uses low carbon means like solar power plant to run their factories.
Effects of international laws on apple company operation
Globalization comes with the internationalization of business. Consequently, when businesses start trading internationally, they operate in different countries with varying jurisdiction and laws. In this way they are to ensure that they abide by those laws fully and in case they violate them, they are prosecuted, and sometimes their operations are shutdown. International laws have the ability to promote or totally dismantle business operations of a company which violates them. The discussed below are some of the effects of international laws effects on the operation of the apple company (Chan, Pun, & Selden, 2013).
International Taxation laws and effects on Apple performance. In the year 2016, the European Court ordered Apple Company to pay close to $14.5billion of tax the penalty to Irish government (Hunt 2017) The court held that the Irish government violated international tax law by meddling tax laws to favour Apple Company which resulted to the company pay less tax to Irish government (Heckemeyer & Overesch, 2013).
Also, the court ruled that Apple Company had not paid the entire required tax amount and other revenues from sales they had made in 20-14 and 2003. Such tax laws are just reducing the Apple’s operations in the international business as it has ended up suffering one of the largest financial losses ever. International tax laws have the ability to limit Apple operating activities. Apple has had in past major corrosive effects that resulted from tax avoidance in the United States.
This leads the company to pay in millions of money as the Senate ruling indicated that the company had strategically formulated strategies that they use to avoid tax. This too has affected the profitability margin of Apple Company. Responding to the Europeans Commission ruling in taxes, the chief executive officer of Apple Company warned that were likely to reduce their operations in Ireland risking over 1.5 million jobs in entire Europe. The effects of such international laws are simply just to reduce business operations.
International labour laws and the effects on Apple Company business. These are laws that are internationally accepted by all countries and which ensures employees’ rights are protected, and their work environment is safe. Occasionally, Apple Company has found itself in conflict with such laws when engaging with employees. In the year 2012, apple industry outlet located in China, Foxconn, was reported to have engaged minors as workers (Duhigg & Barboza 2012).
The company employed children and students in their factories which are against international labor laws. Several other employee cases have been lodged in the courts on claims of proper working conditions as well as employees being forced to work overtime. Violation of such international laws directly damages the reputation of a giant company like Apple (Sandoval 2013).
In 2014, Apple, Google, and Intel were fined $324 million in laws suits. Frequent labor laws have negative effects of damaging Apple reputation and stakeholders too. Regular penalties only have hindering effects on the performance of the Apple Company (Hunt 2017).
Approaches to global politics – Realistic approach
The approach is based on the premise that each country is seen to be in fight for its position in global arena while each is advancing its interests. In this way, a country will consequently reign supremacy over its borders and population. The states are seen as seemingly guarded against invertible threats against the freedom of its people and encroachment of potential threats on its borders (Gilpin 2011).
Under this approach, the attainment of economics, as well as the mobilization of economic power, is viewed as marshalling power over its borders. The main facets of realism include mercantilism, ethno nationalism, colonialism, and neo-colonialism. Colonialism is viewed as a major precursor to globalization while mercantilism is the smooth approach that promotes establishment of industries through subsidizing them and protecting them from international competition (Gilpin 2011).
Mercantilists advocates for free trade to enhance the realization of an end to political struggle. Realists presume of an international state structure as progressively more revolutionary, and they assume that all countries work in attaining their parochial interest. The approach characterizes international politics as being power centered focusing on power balance, and eventually, that war is unavoidable in the international states system (Baylis, Smith & Owens, 2013). The main advantage of realism is that it prioritized state political supremacy over an individual and that state should be the key player
Primarily, the liberalism approach to global politics seeks spreading of democratic as well as economic power to necessities the true picture of globalization. The approach also advocates for an economic path for a true realization of one economic and cultural global political order. Liberals fall out that a great room exists for collaboration and gain for all countries in international state politics. Also, liberalism unmoving believes that countries can still work from mutual benefits and avoid international politics (Baylis, Smith & Owens, 2013).
Liberalism can be traced about 200 hundred years ago to economic philosophers Adam Smith and David Ricardo. Liberalism has thrived in fame in the aftermath of World War 1 and world war 11. Even though limits have resulted in the incapability of liberalism to put up with the fruit that it so dynamically argued. Liberals’ mainly important role is based on the notion asserting that all accomplices in an organization of free trade markets are beneficiary (Baylis, Smith & Owens, 2013).
The main advantage of liberal is the advocacy of free trade in international political arena. They argue that little political restriction will automatically cause the trading parties to gain mutually. The second aspect here is that realism advocate and strongly prefers an individual to state politics. In global world, protectionism is necessary; this forms one as the major advantage of liberal as it vehemently fights against protectionism.
Use of globalization at Apple Company
Global outsourcing. Apple has applied outsourcing significantly to enhance its production. The company has its head office in the United States which is a nonmanufacturing office. Productions are located in Europe and Asia. The company does outsource it critical production raw, materials from many countries to their assembling plant globally. This is one of the key utilization of globalization by the apple company. Employees and innovators have also been outsourced globally as a result of globalization in trade laws and practices. Aided by globalization, Apple Company has been able to cut the high cost of production in the United States by strategically setting their operations in countries where production cost is low (Borrus & Zysman, 1997).
Apple has used the effects of globalization to establish one of the best online retail shops. Their customers can purchase company’s product all over the world with no limitation to geographical distance and be delivered to them on time. These online stores and websites can be translated into different languages for everybody who wishes to transact with the company.
The company has also structured its production process to move in line with globalization. The supply chains and value chains developed have been used to ensure that The Company remains competitive in global market. Globalization has also been used to do market segmentation and various market strategies by Apple Company. Through globalization, Apple Company can easily now segment international market for profitable returns and consistently shy away from those markets with low profits or markets which are risky.
It is clear crystal that Apple Company has grown over the years to be one of the world’s giants businesses globally. The company has set up its operational internationally in many strategic countries. By going international, Apple Company has been forced to operate within international trade laws which prescribed the nature of and ways in which accompany ought to conduct business at international levels. Such laws which have affected apples international business include tax laws, labor rational laws as well environmental laws. The major roles of Apple Company in international business include export promotion, job creation, and revenue generation among many others. Strategically, Apple Company has been affected by global business in areas such as outsourcing, redesign of supply chains, and establishment of online business among many others.
Baylis, J., Smith, S. and Owens, P., 2013. The globalization of world politics: an introduction to international relations. Oxford University Press.
Gilpin, R., 2011. Global political economy: Understanding the international economic order. Princeton University Press.
Sandoval, M., 2013. Foxconned Labour as the Dark Side of the Information Age: Working Conditions at Apple’s Contract Manufacturers in China.
Johnson, K., Li, Y., Phan, H., Singer, J. and Trinh, H., 2012. The Innovative Success that is Apple, Inc.
Duhigg, C. and Barboza, D., 2012. In China, human costs are built into an iPad. New York Times, 25.
Linden, G., Dedrick, J. and Kraemer, K.L., 2011. Innovation and job creation in a global economy: the case of Apple’s iPod. Journal of International Commerce and Economics, 3(1), pp.223-239.
Licht, Tine R., Max Hansen, Anders Bergström, Morten Poulsen, Britta N. Krath, Jaroslaw Markowski, Lars O. Dragsted, and Andrea Wilcks. “Effects of apples and specific apple components on the cecal environment of conventional rats: role of apple pectin.” BMC microbiology 10, no. 1 (2010): 13.
Heckemeyer, J. and Overesch, M., 2013. Multinationals’ profit response to tax differentials: Effect size and shifting channels.
Smith, J., 2012. The GDP illusion: value added versus value capture. Monthly Review, 64(3), p.86.
Chan, J., Pun, N. and Selden, M., 2013. The politics of global production: Apple, Foxconn and China’s new working class. New Technology, Work and Employment, 28(2), pp.100-115.
Borrus, M. and Zysman, J., 1997. Globalization with borders: The rise of Wintelism as the future of global competition. Industry and innovation, 4(2), pp.141-166.
Hunt, Elle. “Apple Paid No Tax In New Zealand For At Least A Decade, Reports Say”. The Guardian. N.p., 2017. Web. 29 Mar. 2017.
International Law Dissertation Statehood and Diplomatic Relations: One of the most deep rooted problems of international law is identity. Domestic law is obviously an amalgamation of rules regulating one’s behaviour in a local or national society. The complexity of international law is depicted directly by looking at whose behaviour it seeks to regulate. Who are subject to it? When do these perceived subjects become part of the international system of laws? While the answer to the first question is clear, and that is states, the second is difficult, complex and certainly not straightforward.
The reason being is that there is no academic conclusion as to when a territorial entity becomes formally a state, and therefore a subject of international law. Even more so, there is no conclusion between scholars and international lawyers alike as to whether statehood is a mere formality or an evidence of facts. The above, create further questions as to the very existence and practice of international law. It is of no coincidence that scholars studying international law have expressed concerns regarding the problems this debate entices. Others have rightfully stated that ‘very few branches of international law which are of greater, or more persistent, interest and significance for the law of nations than the question of Recognition of States’.
This dissertation project will attempt to analyse and explore as much as possible the various cases of entities bidding for recognition and acquisition of the status of statehood. It will also attempt to examine the implications of recognition as well as those of non-recognition and look into those cases of entities which have cast themselves as unique. Through this examination, one of the conclusions that can be extracted is that the birth of each state separately is a unique circumstance on its own.
Furthermore, the purpose of this dissertation is to compare the two main theories revolving around state creation drawing conclusions both from international legal documents as well as through pre-existing research held by distinguished scholars. In order to achieve the above, the paper has been constructed in such a way so as to offer an insight to as many issues that arise from the debate as allowed by the word limit, and achieve a conclusion as empirical as possible. The research will first overcome the most obvious of the obstacles it faces: the question of what comprises a state. Beyond the obvious description of a state, one needs to look into a number of its functions, such as the need to promote the welfare of its constituents.
1 – Introduction
2 – What is a State?
The Declaratory Theory
Territory and Self-Determination
Government and Sovereignty
Capacity to Enter into Diplomatic Relations
3 – State Creation
Self-Determination, Partition and the Use of Force
The Constitutive Theory
4 – Comparing the Constitutive and Declaratory Theories
The Reality of the ‘Politics of Recognition’
The Capacity to Enter into Diplomatic Relations
The Turkish Republic of Northern Cyprus
Case Law on Apple versus Samsung – Patent Infringement
Title: Apple Samsung Lawsuits – Cornish, W., Llewelyn, G. I. D., & Aplin, T. (2013) Intellectual property: patents, copyright, trade marks & allied rights.
Patent infringement can be described as an act of making, selling, using or offering to set an invention that has been protected by government for the rights of inventor. In this report, a case of Apple vs. Samsung has been analyzed and discussed using critical understanding by referring the literature. In addition to this, supporting cases are also analyzed to provide understanding in the area of legal risk management. The report concludes that patent infringement cases are very critical and differ according to legal requirements of different countries. From the analysis of the case study, it was found that Apple and Samsung are going through a long lasting battle of patent infringement. Both have faced serious consequences of this battle due to different legal perspectives.
Case Summary and Analysis
Apple and Samsung are two technology giants have their number of lawsuits between each other relating to tablets and smart phone designs. This technology battle is very significant because these two companies contribute almost half of the smartphone market share across the world. The two parties which are claiming each other are two major technology giants Apple and Samsung. However, it Apple remained in winning position in most of the cases. A brief description of the two parties has been provided before discussing the main issues of the case in order to give introduction to these two companies.
Apple is an American multinational electronic company that is often characterized for offering best quality and innovative electronic products such as tablets, smartphones, laptops etc. It was founded in California, America in 1976 by Steve Jobs and since then, the company has placed it in number one position in hardware and electronic industry. Its products iPhone and iPads are considered as revolutionary innovation in the electronic world.
Samsung group has five major business units including Samsung electronics company, Samsung telecoms etc. It is a South Korean multinational company that is comprised of number of subsidiaries and affiliated business organizations. The company was founded in 1938 by Lee Byung-chul and emerged as one of the largest electronics companies in the world.
Apple made the very first case against Samsung by suing it for four design patents on 5th January 2007. In response to the same, Samsung also filed a case against Apple for violating colour design patent of 193 screen shots of many iPhone graphical use cross points. Apple made a claim on its component provider Samsung in more than 10 countries including USA, South Korea, Germany, Australia, Netherlands, and Japan etc. Thus, the patent battle between Apple and Samsung has become an international case related to patent infringement. The key issue in this case is to identify if Samsung or Apple have infringed the patents of each other.
Apple has sued Samsung because the company is trying to protect its patent provided by the government for new invention. The issue has become more significant because Apple cannot protect all of its patents because technology is changing very frequently. In such a scenario, only specific features like “princh stretch” can be protected. Therefore, Apple won a court case against Samsung for $1.05 billion because of patent infringement by Samsung for copying a specific feature. Samsung also sued Apple for the same and won in few cases where it did not copy specific features. Both companies are major rivals in electronic industry and hold specific market share therefore, will never back down and accept that they were wrong. Thus, the battle is not going to end easily to the give case scenario.
What did Samsung Copy?
O’Rourke, M. (2011) Apple and Samsung Wage Patent War. Risk Management. 58(10). p.6.
Samsung had a basic production on tablets before Apple’s innovative product iPad launched. After launching of iPad 2, Samsung changed its designs of tablets and Google alleged Samsung to copy Apple’s iPad. The key design violations by Samsung are discussed here under:
Samsung infringed the design patent by introducing a feature of enlarging the text by double tapping on the screen. Thus, Samsung introduced the zooming feature that was being used by Apple in its iPads.
Apple was the first company that offered a feature of bouncing back after scrolling. Samsung also violated this design patent in its smartphones.
Ornament design was used by Apple in iPhone 3 that was used by Samsung for its future models. The shape of iPhone was rectangular in shape and the same was adopted by Samsung later.
Samsung was also alleged to copy the shape and feature of icon alignment in a row or column that is a user friendly interface. Samsung can with the same interface that is used in android systems of Samsung.
What did Apple copy?
In response to the above claims, Apple was also sued by Samsung because it was accused for using the same architecture design icons in iPhones which were used by the Samsung smartphones. Thus, Samsung electronics filed a lawsuit against Apple iPhone 5 which was released recently. Apple was accused to use the same features and GUI interface that was used by Samsung. Thus, Samsung alleged that Apple’s iPhone 5 shape is unreasonable rectangular shape which was copied by infringing the patents.
Federal Complaints in Court
Cusumano, M. A. (2013) The Apple-Samsung lawsuits. Communications of the ACM. 56(1). pp.28-31.
The following federal complaints were filed in the courts of various countries of which few lawsuits are stated below:
The South Korea court revealed that Samsung was in fault for infringing patents by violating Apple’s design patents. Nonetheless, the court also awarded the little damages to both Apple and Samsung. South Korean court gave the judgement in neither of the parties by banning the products of Apple and Samsung in the country. Samsung was ordered to stop marketing its 12 products and Apple was asked to ban iPhone 3gs and iPad 1 and iPad 2 in South Korean market.
Samsung was sued by Apple for two patent infringements in the federal court of Japan but court denied to take any action. The court held that the technology used by these two companies was different and therefore, complaint filed by Apple was stroked down by them.
According to statement of British court, galaxy product of the Samsung was not copied and iPad and galaxy are products with different technologies. By this judgement, Apple lost the case against Samsung in United Kingdom as court held that there was no point to claim.
In federal court of Australia, Apple was a clear winner because on this case of patent infringement, Samsung was found guilty in legal grounds and ordered to ban galaxy tab in Australian market.
United States of America
The USA case against Samsung is considered significant in this battle because court clearly favoured Apple and held that Samsung copied the technology used in iPhones and iPads. Thus, all the tablets and smart phones of Samsung were banned in USA and court also imposed huge penalty on Samsung.
Problems in Finding References
During this study, I found issues in reading and finding related literature because of unauthorized access on some website. There are many premium website which allow user to get data only on subscription. Due to financial constraints, I had to find alternatives which was time consuming and difficult. Furthermore, the other issue I faced during finding references was identification of appropriate key words. Patent infringement is a wider term and there are all unique cases relating to this. Thus, it was difficult to identify supporting cases and references for the same. For this, I used rational approach and identified the list of patent infringement cases. Then, I used key words based on initial literature review to solve this issue. I have used enough literature to create better understanding on this case and analyze the same.
Analysis and Reflection on Legal Grounds
From the analysis of the given case study, it was found that both Apple and Samsung are in losing position due to this patent war. On the one hand, Samsung has to pay penalty of billions and on the other hand Apple lost its reputation in few countries. However, Samsung been biggest loser in this battle because there were serious financial and reputational implications.
Crampes, C., & Langinier, C. (2002) Litigation and settlement in patent infringement cases. RAND Journal of Economics. pp. 258-274.
The patent laws in USA provide for granting patents to any person/organization invented new, ornamental and original design for an article for manufacturer. The manufacturing items under the scope of patent law include smartphones, peripheral, software icons and other automobile parts. However, it is important to note that three types of patents are there but the scope of this law does not cover utility patent. However, the patent rights granted to Apple being an American country is confined to the territory of USA and thus, there will be no effect in other countries. Almost every nation has its own patent law and a person who wants protection of any kind of patent in any country is subject to laws applicable on that particular country regarding patent infringement.
Bosworth, D. L. (2014) Intellectual property rights. Elsevier
The above discussed case is not applicable for a single country because Apple and Samsung have entered into an international battle by suing each other in more than 10 countries for patent infringement. The law suggests that before determining the patent infringement, it is important to compare overall appearance of the accused design and the claimed design. It was found that Apple won the battle in some countries like USA but it also lost the case in some countries. The decisions made by different federal courts were based on their patent regulations and guidelines. Thus, it will not be wrong to state that both Apple and Samsung were not able to effectively protect their intellectual property rights and faced difficulty. On the basis of legal grounds and analysis, the cost of these actions of Apple and Samsung and future implications of the same are presented below:
Cost of These Actions
Wingfield, N. (2012) Jury awards $1 billion to Apple in Samsung patent case. The New York Times (August 24, 2012).
Apple had claimed federal complaint on its supplier Samsung in many countries whereas Samsung also filed the case on Apple for copying 5 patents of Samsung. The cost of taking these actions remained too high for these two organizations because finally, some of the products of these companies were banned in some countries that caused huge loss to reputation of Apple and Samsung. In addition to this, this billion dollar patent dispute between these Samsung has led one of the biggest losses due to penalties for patent violations in legal history ever.
Lawsuits Future Implications
Jeruss, S., Feldman, R., & Walker, J. H. (2012). The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation.
There are serious implications of this legal battle that can be discussed in financial, reputational and market terms. Countries like South Korea banned some of the products of Apple and Samsung due to which the companies lost significant market share and reputation. Apple’s biggest competitor Google can re evaluate its product designs and strategies to protect itself from any legal action. The Apple remained in the strong position and therefore, it can become world’s most valuable company. Samsung lost the share value because of this patent battle that has made Apple to gain competitive advantage in long run.
Innogenetics Biotechnology is a company that is dealing with diagnostics assays, multi parameter testing and in the field of severe infectious diseases whereas Abbott labs is a health care company involved in activities like discovering medicines and new technologies for well being of people. Innogenetics was provided patent for the method of detecting a particular disease which was copied by Abbott labs. Innogenetics won $7 million against Abbott for infringement of patent. Although, Abbott gave an argument that the technology used was a raising technology. Court gave the judgement on the grounds that applicant is not required to convince specification. The technology was already known earlier therefore, innogenetics won the case. However, Innogenetics succeed in protecting the right to offer injunction in the market. From the analysis of the case study, it can be stated that Abbott was not able to defend itself on justifiable grounds because of pre existence of the technology.
Microsoft Corp. v. Motorola, Inc. (Fed. Cir., 2014)
The case of patent infringement was initially filed by Microsoft Inc. against Motorola in the District Court of Washington in year 2012. The reason for the claim was that Motorola was alleged to violate reasonable and non discriminatory agreement. During this US litigation, Motorola sued Microsoft in Germany for patent infringement. However, the patent battle has come to an end and the jury has ruled the case in favour of Microsoft and awarding the company $15 million in damages. The judgement was based on the argument that Motorola has breached the US agreement. From the analysis of the case study, it can be said that patent infringement cases are very complex to make decision because there is a thin line between current and new technology.
In this report, the case of Apple vs. Samsung has been analyzed using the existing literature including supportive cases and legal guidelines. It can be concluded that every country has its own regulation on patent protection. In the technological field, patent infringement cases are very common whether they are related to design, utility or knowledge. Thus, it is important to review each and every aspect of the case for taking the judgement. Legal application can be confined to a single territory in most of the cases therefore, before launching a product companies should ensure that no such legal agreements are breached. It can also be commented that patent cannot be considered as a right option all the time because in the case of infringement, the final decision takes a pretty long time. By the time, when decision is taken, technology may have reached the window of opportunity could have closed for patent owner that happened with Apple. However, the typical outcomes could be monetary damages, exclusion order, mediation, injunction relief and negotiated settlement.
Bosworth, D. L. (2014). Intellectual property rights and Lawsuits. Elsevier.
Cornish, W., Llewelyn, G. I. D., & Aplin, T. (2013) Intellectual property: Lawsuits patents, copyright, trade marks & allied rights.
Crampes, C., & Langinier, C. (2002) Litigation, lawsuits and settlement in patent infringement cases. RAND Journal of Economics. pp. 258-274.
Cusumano, M. A. (2013) The Apple-Samsung lawsuits. Communications of the ACM, 56(1). pp.28-31.
Is international humanitarian law an appropriate legal framework through which to fight against terrorism?
How International Humanitarian Law deals with terrorism
According to Jean Pictet, international humanitarian law constitutes a critical part of international public laws which largely focuses on the maintenance of humane ideals and protection of individuals in times of war. It is a “body of principles and norms intended to limit human suffering in times of armed conflict and to prevent atrocities” (Conte, 377). The international humanitarian law comprises of international treaty and customary law. Its main objectives involve protecting persons who are no longer taking part in the hostilities (such the sick, wounded as well as civilians) and restricting the parties the methods of warfare between parties to a conflict (Conte, 377). On the other hand, terrorism is defined as violence or threat to violence against the lives, property and wellbeing of innocent civilians (Gasser, 553).
The International humanitarian law neither provides an explicit definition of terrorism nor does it attempt to address the issue of terrorism directly. This may be due to the fact that terrorism, as a social phenomenon, has many aspects which vary from case to case (Gasser, 552). However, the law prohibits numerous acts committed in armed conflict, which would otherwise be considered as acts of terrorism if they were committed in times of peace (Conte, 378). Therefore, the international humanitarian law deals with terrorism in its capacity to deal with armed conflict.
While dealing with the issue of terrorism, the law seeks to draw a distinction between legitimate violence and acts of terrorism. According to the international humanitarian law, the right to use force or commit acts of violence in armed conflict is restricted to the armed forces, which preserve the right to choose the means of warfare (Gasser, 554). Additionally, such violence should only be directed to the armed forces of the other party and not the civilian population. In light of these provisions, the use of illegal means of warfare such as terrorism against ordinary civilians amounts to a crime which is punishable at the domestic and the international level.
When does terrorism amount to armed conflict?
The human international law, through the four Geneva conventions and two protocols identifies four categories of armed conflict; international armed conflict or occupation, wars of national liberation or self determination, non international armed conflict under common article 3, and non international armed conflict under additional protocol 2 (Conte, 378). Some people hold the view that terrorism does not amount to armed conflict because terrorism involves sudden peaks in violence with specific targets while armed conflict develops over a long period of time. In this view, terrorist actions cannot be qualified as armed conflict. However, terrorism acts can be perpetrated during war, and organized terrorists actions can initiate armed conflict.
Terrorism may amount to armed conflict as states retaliate against each other through terrorist attacks. The relationship between terrorism and armed conflict is also constantly evident in numerous warring situations. Terrorism may occur in the context of an ongoing protracted conflict, or lead to military intervention and war. Additionally, terrorism acts may result due to a reaction as a result of intervention in international armed conflict, which further intensifies an international armed conflict. In all these cases, terrorism serves to precipitate armed conflict or intensify an already existing armed conflict.
Are the rules of international or non international armed conflict applicable?
The rules of international and non international armed conflict apply to cases of terrorism in so far as such acts of terrorism occur in the context of armed conflict (Gasser, 555). Since the rules emphasize on the protection of civilian rights, it ensures that any actions that are directed towards the destruction of civilian property and lives, are not perpetrated. Since terrorism is an action that is directed towards the prohibited acts, it is deemed illegal according to the international humanitarian law, making the laws governing international and non international armed conflict relevant in cases of terrorism.
Other provisions of humanitarian law are also relevant in determining the role of international humanitarian law on terrorism. Such provisions include rules governing the protection of cultural property against hostile acts as well as legal protection often awarded to property containing dangerous forces. In the case provided, the state intends to fight against terrorism following a series of attacks on its military as well as its civilian population. However, the applicability of the law of armed conflict in the protection of the members of the armed forces is not self evident because what may appear to be a terrorist act in a civilian case may not appear to be so in the case of armed forces exchanges (Gasser, 557). However, given that the IHL law prohibits the use of weapons to cause unnecessary suffering to members of the opposing party indicates that terrorism acts against members of the military may be considered a crime (Gasser, 557)
Relevant legal rules to evaluate the question of collateral damages
According to the Merriam Webster dictionary, collateral damage refers to “an injury inflicted on something other than the intended target;” with specific reference to civilian casualties of a military operation (Catherwood & Horvitz, 87). In this case, military’s airplane attacks lead to death of civilians and the destruction of property owned by innocent civilians. Legally, collateral damage should involve unavoidable and unplanned damage to civilian personnel and property incurred while attacking a military objective. Therefore, the military is prohibited from engaging in actions for which they are entirely certain that they will result in massive collateral damages.
The international law does not prohibit collateral damage per se, since it is quite difficult to enact laws that prohibit accidents. However, international law relating to armed conflict restricts indiscriminate attacks that can potentially inflict harm to innocent civilians and their property. Indeed, the international humanitarian law dictates that an attack should be cancelled or suspended if it is expected to cause loss of civilian life or property that “would be excessive in relation to the concrete and direct military advantage” (Catherwood & Horvitz, 87). Article 51 further prohibits attacks using weapons whose impacts cannot be properly controlled.
The international humanitarian law further requires that in an international conflict, constant care should be taken to ensure that the civilian population is protected as well as their property. In this case, the military’s plane attack clearly fails to protect the civilians, who in turn lose their lives as well as their property. Consequently, on the face value, such military action may be considered as legally unjustifiable since the consequences were easily predictable. However, in order for such military action to be considered justifiable, the executors must demonstrate that the loss incurred by the civilian populations is insignificant compared to the loss that the state would have incurred if they had failed to retaliate.
Criteria for evaluating whether collateral damages are unlawful
Evaluating and assessment of collateral damages poses a number of challenges owing to the fact that both direct and indirect impacts of such actions must be weighed in order to determine their legality. The most common means of evaluation involves weighing the military necessity and the principle of proportionality against the collateral damages. The combination of the two principles gives rise to the conclusion whether such actions are legally justifiable or not. If the military action is deemed necessary in order to prevent the occurrence of a national crisis, and if the cost incurred during such actions is substantially low compared to the cost of inaction, then such military action is considered legally justifiable.
The direct and indirect impacts of such military actions should not lead to massive violation of human rights. The direct impacts refer to loss of lives and property during military actions. The indirect effects include long term medical trauma, illnesses and impact on the affected families. Military actions should be designed to protect the lives of civilians and not destroy them. Consequently, military actions that lead to destruction of civilians’ lives and property are obviously questionable in a court of law. However, if in this case, the loss of lives was unavoidable, probably because the plane contained terrorist who were set to perpetrate terrorism acts that would lead to massive losses of lives in the country including those of the civilians in the aircraft, then such military attacks would be justifiable.
The principle of discrimination forbids indiscriminate attacks that are not directed at a specific military action. Based on this principle, a military action must be necessitated by the need to accomplish at a specific military objective. Additionally, the principle dictates that parties to a conflict direct their operations against combatant and military objectives rather than property, persona and places. Therefore, military actions that are not motivated by a specified objective may be viewed as illegal.
Can military operations be launched against a military objective if children are surrounding it?
International law has created provisions which ensure the protection of the most vulnerable members of the population, including women and children, and prohibits actions that are aimed inflicting suffering to such members of the population. Additionally, other international laws relating to respect for human rights in armed conflict offer important guarantees for the protection of children in such incidences. Moreover, international law clearly stipulates that states and military forces actively spare children as well as women from the ravages of war. This is done by ensuring that children are protected against persecution, torture, punitive measures, degrading treatment and violence in the event of war.
Given the emphasis that is placed on the protection of children in armed conflicts, military forces may refrain from launching military operations against a military objective that involves children. The law clearly states that children should be subjected to special respect and protection during war, and should not be involved in direct hostilities during war. Consequently, the military should not direct their actions against children in their efforts to attack the other party. In fact, children who are orphaned or separate from their families in the event of war should, with the consent of the protecting power, be evacuated to a neutral region until such a time that the war subsides. Additionally, parties to the conflict are expected to ensure that children below the age of fifteen are excluded from taking part in direct hostilities and should not be recruited in the armed forces. These regulations remain valid for both international and non international armed conflict.
Rules governing the delivery of humanitarian aid in a non international armed conflict
According to article 18 of additional protocol 2 of the international humanitarian law, individuals subjected to armed conflict have a right to humanitarian assistance, and the parties to such conflict are under obligation to accept such humanitarian relief, which is critical for the survival of the population (Stoffels, 519). The civilians’ right to humanitarian assistance thrives from the principle of inviolability. States are obligated to ensure wellbeing and demonstrate respect for life and humanity for all individuals residing within their territories (Stoffels, 517). In this light, states must refrain from violating individual rights and must embrace measures necessary to ensure that such rights are not abused. This implies that states have a duty to ensure that civilians affected by armed conflicts are adequately supplied with resources critical, for their survival during such warring periods. If the state is not in a position to do so, then it should allow third parties to provide humanitarian aid to the affected population.
The humanitarian organization also have the right to provide humanitarian assistance, which entails the right to provide victims with relief supplies needed for their survival, as well as the right that such offer of aid not to be unreasonable denied by the concerned authorities (Stoffels, 521). States and other parties to the conflict are obligated to permit entry, passage, and access of humanitarian aid in their territories. In this light, states must authorize entry and passage of humanitarian aid for the affected populations, parties to the conflict must not obstruct such humanitarian efforts and the affected parties must actively ensure that humanitarian assistance is offered effectively, and that the humanitarian actors and their supplies are safe and secure (Stoffels, 521)
Humanitarian assistance is deemed acceptable if it adheres to the basic principles of humanitarianism, impartiality and neutrality. If the humanitarian assistance does not comply with these principles, and favors one party to the conflict over the other, the parties involved are at discretion to decline or sign authorization for such assistance. In such cases, humanitarian assistance is not protected as such under International humanitarian law (Stoffels, 539).
Authorization for the delivery of humanitarian aid
Historically, a state’s involvement in internal armed conflict is viewed as an issue that the international community should not interfere with, given that each country is considered to be a sovereign state (Dungel 1). Additionally, the responsibility to ensure proper nourishment and wellbeing of the civilians rests on the hands of the state. Therefore relief societies should only play an auxiliary role in assisting state authorities in the execution of this task (Dungel 1). According to this argument therefore, State A would require authorization from State B in order to distribute relief food to the rebel held area. Indeed, the international humanitarian law, in article 18 stipulates that, humanitarian organizations “have a right of initiative in offering relief actions” and that if civilians are suffering undue hardships owing to a lack of supplies essential for survival”, relief action should be undertaken but under the consent of the relevant authority (Dungel 1). Clearly, under these provisions, the authorization by the affected state is critical in enabling humanitarian actors to effectively deliver relief.
In this case, such authorization potentially threatens the principle of neutrality given that the region in question is that which is held by the rebels. Since the IHL stipulates that such authorization be provided by “high contracting power concerned” which is the government, it may be reluctant to authorize humanitarian aid provision in such areas (Dungel 1). Therefore, since the rebel group has de facto control over the territory in question, it is rational that the party be considered as a high contracting power. Therefore, authorization by state extends to the point where such aid is transported over the territory in which it controls, while the authorization for delivery of aid to the rebel held area lies in the hands of the rebel group.
Principals governing humanitarian aid
Humanitarian principles, in their broadest sense are based on international humanitarian law, and are designed to guide the work of humanitarian actors. The four key principles are; humanity, neutrality and impartiality.
Humanitarianism is founded on the basic principle of humanity, which according to the Red Cross is the desire “to prevent and alleviate human suffering wherever it may be found…to protect life and health and to ensure respect to the human being” (Volberg, 51). Under this principle, organizations, governments, military force s, among other institutions may feel obligated to provide aid to civilians affected by an emergency, and have a moral responsibility towards other members of humanity. Their main aim is to alleviate human suffering and contribute towards protection of life, health, wellbeing, and respect for human life. In this case, the military decision to provide humanitarian aid while at the same time providing military assistance may be driven by humanity considerations, in which the military is motivated to do so with the aim of alleviating human suffering for civilians.
According to the principle of neutrality, humanitarian actors should remain neutral in the conflict, and should not take sides with either of the conflicting parties. This ensures that organizations provide aid to all victims without any exceptions. Based on the principle of neutrality, the humanitarian actors should first and foremost focus on the material needs of the civilians while remaining distant to the political or social issues that have precipitated the armed conflict. However, in this case, State A’s military is already offering military assistance to one the parties to the non international armed conflict, which significantly compromises the neutrality of State A.
In conclusion, the principle of impartiality dictates that humanitarian actions are carried out based on the need, giving priority to the most urgent humanitarian needs. The principle of impartiality rejects discrimination and subjective distinctions in the provision of humanitarian aid. In this case, State A provides military assistance and later decides on distributing humanitarian aid , which raises the questions whether their actions are solely guided by the needs of the civilians, and whether the state has given priority to the most urgent cases of distress.
Catherwood, Christopher & Horvitz, Alan Leslie, encyclopedia of wars and genocide, New York: InfoBase Publishing Group.
Conte, Alex. Human rights in the prevention and punishment of terrorism, New York: Springer. 2010. Print.
Dungel, Joakim, a right to humanitarian assistance in internal armed conflicts respecting sovereignty, neutrality and legitimacy: practical proposal to practical problems.
Gasser, Hans-Peter, Acts of terror, “terrorism” and international humanitarian law, International Review of the Red Cross, volume 84 No 847. 2002.
Stoffels, Ruth Abril. Legal regulations of humanitarian assistance in armed conflict: achievement and gaps, International Review of the Red Cross, volume 86 no 855. 2004.
Volberg, Thorsten. The politicization of humanitarian aid and its effects on the principles of humanity, impartiality and neutrality, GRIN Verlag. 2007 Print.