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We can work on CASE STUDY 19: Texahoma Highway Construction
After completing and discussing this case, you should be able to Calculate compensatory damages in patent infringement cases for lost profits and lost sales. Develop lost profit from margin erosion and lost profits from convoyed sales. Calculate interest on all lost profits. Texahoma is a fast-growing state in the American Southwest. The fast growth makes it necessary for the Texahoma State Department of Highways (DOH) to construct new highways and widen existing highways. The DOH carries out highway construction by means of competitive bidding by qualified highway construction companies. One of the qualified highway construction companies is Salsa Inc. Salsa has developed and registered a patent for containing noise caused by highway construction. This noise is very loud, and DOH has to pay compensation to homeowners and businesses located near highway construction projects. The Salsa patent effectively contains construction noise, and significantly lowers the amount of compensation paid by DOH to the home-owners and businesses dis- turbed by the din of highway construction. The Salsa patent is for a containing wall that is built on both sides of a highway under construction. The containing wall is 16 feet high, and consists of reinforced concrete posts that are grooved to accept concrete panels with matching tongues. The patent covers the posts and panels as a product, and also their method of manufacture. The wall is permanent, and remains to reduce traffic noise after highway construction is completed. The noise wall patent was issued in year 1. Both the posts and the panels are manufactured onsite from molds into which are poured liquid concrete, reinforced by steel rebar. The posts are 24 feet long, with 8 feet inserted and concreted into post holes, and 16 feet protruding above ground. The posts are on 16 foot centers, and support the 16 by 16 foot panels. These Salsa walls are known as noise walls. Since noise walls have proven very effective, DOH highway construction specifications since year 2 have included sound muffling standards that noise walls can meet, but which no competing product has been able to satisfy. When DOH introduced the sound muffling standards on January 1 of year 2, strong protests came from Salsaâs highway construction competitors, who feared that they could no longer compete for contracts against Salsa, and would be forced out of business. DOH responded by pointing out that highway contractors still had several options. They could develop new non-infringing noise walls that met the stan- dards, or they could arrange for Salsa to be their subcontractor for the noise wall portion of highway contracts, or they could purchase licenses from Salsa to use the Salsa patent in exchange for paying an agreed royalty.
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This leads to question of what qualifies to be a combatant, and whether it is lawful to kill each other as combatants. Combatants are people who are involved directly or indirectly with the war and it is lawful to kill âto shelter the innocent from harmâ¦punish evildoers (Begby et al (2006b), Page 290).However, as mentioned above civilian cannot be harmed, showing combatants as the only legitimate targets, another condition of jus in bello, as âwe may not use the sword against those who have not harmed us (Begby et al (2006b), Page 314).â In addition, Frowe suggested combatants must be identified as combatants, to avoid the presence of guerrilla warfare which can end up in a higher death count, for example, the Vietnam War. Moreover, he argued they must be part of the army, bear arms and apply to the rules of jus in bello. (Frowe (2011), Page 101-3). This suggests Frowe seeks a fair, just war between two participants avoiding non-combatant deaths, but wouldnât this lead to higher death rate for combatants, as both sides have relatively equal chance to win since both use similar tactics? Nevertheless, arguably Frowe will argue that combatant can lawfully kill each other, showing this is just, which is also supported by Vittola, who states: âit is lawful to draw the sword and use it against malefactors (Begby et al (2006b), Page 309).â In addition, Vittola expresses the extent of military tactics used, but never reaches a conclusion whether itâs lawful or not to proceed these actions, as he constantly found a middle ground, where it can be lawful to do such things but never always (Begby et al (2006b), Page 326-31). This is supported by Frowe, who measures the legitimate tactics according to proportionality and military necessity. It depends on the magnitude of how much damage done to one another, in order to judge the actions after a war. For example, one cannot simply nuke the terrorist groups throughout the middle-east, because it is not only proportional, it will damage the whole population, an unintended consequence. More importantly, the soldiers must have the right intention in what they are going to achieve, sacrificing the costs to their actions. For example: if soldiers want to execute all prisoners of war, they must do it for the right intention and for a just cause, proportional to the harm done to them. This is supported by Vittola: ânot always lawful to execute all combatantsâ¦we must take account⦠scale of the injury inflicted by the enemy.â This is further supported by Frowe approach, which >
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This leads to question of what qualifies to be a combatant, and whether it is lawful to kill each other as combatants. Combatants are people who are involved directly or indirectly with the war and it is lawful to kill âto shelter the innocent from harmâ¦punish evildoers (Begby et al (2006b), Page 290).However, as mentioned above civilian cannot be harmed, showing combatants as the only legitimate targets, another condition of jus in bello, as âwe may not use the sword against those who have not harmed us (Begby et al (2006b), Page 314).â In addition, Frowe suggested combatants must be identified as combatants, to avoid the presence of guerrilla warfare which can end up in a higher death count, for example, the Vietnam War. Moreover, he argued they must be part of the army, bear arms and apply to the rules of jus in bello. (Frowe (2011), Page 101-3). This suggests Frowe seeks a fair, just war between two participants avoiding non-combatant deaths, but wouldnât this lead to higher death rate for combatants, as both sides have relatively equal chance to win since both use similar tactics? Nevertheless, arguably Frowe will argue that combatant can lawfully kill each other, showing this is just, which is also supported by Vittola, who states: âit is lawful to draw the sword and use it against malefactors (Begby et al (2006b), Page 309).â In addition, Vittola expresses the extent of military tactics used, but never reaches a conclusion whether itâs lawful or not to proceed these actions, as he constantly found a middle ground, where it can be lawful to do such things but never always (Begby et al (2006b), Page 326-31). This is supported by Frowe, who measures the legitimate tactics according to proportionality and military necessity. It depends on the magnitude of how much damage done to one another, in order to judge the actions after a war. For example, one cannot simply nuke the terrorist groups throughout the middle-east, because it is not only proportional, it will damage the whole population, an unintended consequence. More importantly, the soldiers must have the right intention in what they are going to achieve, sacrificing the costs to their actions. For example: if soldiers want to execute all prisoners of war, they must do it for the right intention and for a just cause, proportional to the harm done to them. This is supported by Vittola: ânot always lawful to execute all combatantsâ¦we must take account⦠scale of the injury inflicted by the enemy.â This is further supported by Frowe approach, which >
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