Litigation

**Jurisdictional Comparison and Analytical Commentary** The ongoing patent disputes surrounding CRISPR gene editing technology have sparked a global intellectual property (IP) battle, with far-reaching implications for biotech innovation, patient access, and IP strategy. This commentary will compare the approaches of the United States, Korea, and international jurisdictions, highlighting the complexities and challenges in navigating the CRISPR patent landscape. **US Approach:** The US Patent Trial and Appeal Board's (PTAB) ruling in favor of the Broad Institute for eukaryotic applications has established a precedent for CRISPR patent claims in the United States. However, the PTAB's decisions have been subject to criticism for being overly narrow, potentially stifling innovation and limiting access to CRISPR technologies. The US approach prioritizes patent holder rights, which may lead to increased litigation costs and delayed access to CRISPR-based therapies. **Korean Approach:** In contrast, Korea has taken a more proactive approach to regulating CRISPR technologies. The Korean Intellectual Property Office (KIPO) has implemented a more lenient patent examination process, allowing for broader claims and faster patent approvals. This approach has facilitated the development of CRISPR-based therapies in Korea, with companies like Samsung Biologics and Celltrion investing heavily in CRISPR research. However, this approach also raises concerns about patent quality and potential infringement issues. **International Approach:** Internationally, the European Patent Office (EPO) has taken a more

As a Civil Procedure and Jurisdiction Expert, I'll analyze the article's implications for practitioners and highlight relevant connections to case law, statutes, and regulations. **Procedural Requirements:** 1. **Venue and Jurisdiction**: The patent disputes surrounding CRISPR gene editing technology have been litigated across multiple jurisdictions, including the United States and Europe. Practitioners must be aware of the specific venue and jurisdictional requirements for each case, as exemplified by the Supreme Court's decision in **TC Heartland LLC v. Kraft Foods Group Brands LLC** (2017), which clarified the proper venue for patent cases. 2. **Patent Trial and Appeal Board (PTAB)**: The PTAB's ruling in favor of the Broad Institute for eukaryotic applications has significant implications for practitioners. The PTAB's decisions are subject to appeal to the Federal Circuit, as seen in **Cuozzo Speed Technologies, LLC v. Lee** (2016), which established the standard for reviewing PTAB decisions. 3. **International Patent Disputes**: The European Patent Office's (EPO) differing positions on related patents highlight the challenges of navigating international patent disputes. Practitioners must be aware of the EPO's procedures and the implications of obtaining or challenging patents in multiple jurisdictions. **Motion Practice:** 1. **Patent Invalidity Challenges**: The complex patent landscape surrounding CRISPR gene editing technology has led to numerous patent invalidity challenges. Practitioners must be

### **Jurisdictional Comparison & Analytical Commentary on Private Antitrust Enforcement** The article’s critique of U.S. private antitrust enforcement—highlighting how judicial restrictions on private litigation have weakened competition policy—finds partial parallels in **South Korea**, where private enforcement is statutorily robust but often constrained by high evidentiary burdens and institutional skepticism toward punitive damages. Meanwhile, **international approaches** (e.g., EU) increasingly favor hybrid public-private enforcement models, with damages directives facilitating compensation claims while maintaining public oversight. The U.S. debate thus reflects a broader tension: whether private enforcement should be revitalized as a corrective to weakened public enforcement (as Lancieri argues) or whether structural reforms (e.g., agency empowerment) are preferable—a divide that mirrors global variations in antitrust litigation culture. **Key Implications:** - **U.S.:** A revival of private enforcement would require overturning restrictive precedents (e.g., *Twombly/Iqbal*) and expanding standing rules, risking judicial backlash or legislative gridlock. - **Korea:** Strengthening private claims (e.g., via clearer damages standards) could align with its Fair Trade Commission’s (FTC) goals but may clash with corporate resistance and judicial caution. - **International:** The EU’s balanced approach (damages actions + public enforcement) offers a middle path, but U.S.-style adversarial litigation remains culturally distinct, complicating harmonization efforts

### **Expert Analysis of "Rethinking the Key Role of Private Antitrust Enforcement" (2025)** This article highlights the critical but often underappreciated role of private antitrust enforcement in shaping U.S. competition policy, particularly through Supreme Court jurisprudence. The empirical analysis of 474 antitrust decisions over 130 years suggests that private litigation has been the primary driver of major antitrust doctrinal shifts since the mid-1970s, often leading to weakened enforcement. Practitioners should note that this aligns with broader trends in standing and pleading standards (e.g., *Bell Atlantic Corp. v. Twombly*, 550 U.S. 544 (2007)), where stricter thresholds have limited private enforcement. Additionally, the article implicitly critiques the Supreme Court’s deferential approach to market power, which may conflict with legislative efforts like the **American Innovation and Choice Online Act (AICOA)** and **Open App Markets Act**, both of which seek to strengthen private enforcement mechanisms. **Key Statutory/Regulatory Connections:** - **Clayton Act § 4** (15 U.S.C. § 15) – Provides private right of action for antitrust violations. - **Twombly/Iqbal Pleading Standards** – Have significantly constrained private antitrust claims. - **FTC & DOJ Antitrust Guidelines

The article on ineffective assistance of counsel claims illuminates a critical intersection between procedural rigor and substantive justice in criminal litigation. In the U.S., the Strickland standard imposes a formidable barrier to relief, requiring proof of both deficient performance and prejudice, a threshold that appellate courts frequently uphold. This contrasts with South Korea, where constitutional guarantees of effective counsel are more explicitly codified, and appellate review tends to adopt a more deferential posture toward claims of counsel inadequacy, facilitating greater avenues for appellate correction. Internationally, comparative frameworks—such as those in the European Court of Human Rights—further diverge by embedding procedural safeguards more directly into appellate review, often mandating a lower threshold for establishing prejudice. Collectively, these jurisdictional variations underscore the divergent balances struck between finality and fairness across legal systems, influencing counsel representation advocacy strategies globally.

The article highlights a critical procedural barrier: ineffective assistance of counsel (IATC) claims face a heightened standard under Strickland v. Washington, creating significant hurdles for post-conviction relief. Practitioners should note that appellate courts’ limited reversal rates for IATC claims—often lower than other issues—underscore the need for meticulous documentation and advocacy at trial to mitigate potential deficiencies. Statutorily, this aligns with the principle that appellate review of constitutional errors is deferential unless prejudice is demonstrably clear, as reaffirmed in Wainwright v. Sykes. Practitioners must anticipate these procedural constraints early in representation to preserve appellate avenues.

The article’s focus on procedural frameworks for de facto parentage recognition resonates across jurisdictions, particularly in the U.S., where state-level recognition of non-traditional familial roles has expanded significantly—mirroring Korea’s evolving recognition of quasi-parental responsibilities under family law reforms. Internationally, comparative approaches highlight a shared trend toward accommodating familial diversity: while the U.S. emphasizes procedural clarity and statutory codification, Korea integrates familial recognition through judicial discretion within broader welfare-oriented frameworks, and international bodies (e.g., UNICEF, Hague Convention) advocate for child-centered, inclusive definitions of caregiving. The procedural lens adopted by Tang’s analysis offers a transferable model for jurisdictions grappling with similar tensions between evolving family structures and legal standing, suggesting that procedural standardization—whether via codification, judicial precedent, or administrative guidelines—may serve as a universal tool for equitable adjudication. These cross-jurisdictional parallels underscore the broader litigation imperative: adapting procedural frameworks to reflect societal change without compromising due process.

The article on de facto parentage in Volume 2025, No. 6, is procedurally significant for practitioners because it frames de facto parentage claims through a procedural lens, offering novel insights into the steps courts should follow and the impact of procedural deviations on establishing de facto parentage. This aligns with evolving statutory trends, such as the 2024 Restatement of the Law: Children and the Law, the 2002 ALI Principles of the Law of Family Dissolution, and the 2017/2018 Uniform Acts, which collectively recognize functional parentage. Practitioners should consider these procedural frameworks when advising clients on parentage disputes, as they may influence standing and procedural outcomes. Regarding the access-to-justice crisis, the discussion of systemic delays in Canada and the U.S. connects to longstanding reforms like those referenced in cases such as **Hryniak v. Mauldin** (SCC 2014), which emphasized expedited adjudication, and **American Bar Association reports** on court congestion. These connections underscore the ongoing need for procedural innovation to mitigate justice delays.

The article "The Discrimination Presumption" highlights the pervasive issue of employment discrimination, underscoring the need for a more effective approach to address this concern. A comparative analysis of US, Korean, and international approaches reveals distinct differences in their approaches to tackling employment discrimination. While the US relies on a burden-shifting framework, such as the McDonnell Douglas test, to establish employment discrimination claims (Title VII of the Civil Rights Act of 1964), Korea has implemented a more comprehensive anti-discrimination law that incorporates a presumption of discrimination (Article 3 of the Act on the Prohibition of Discrimination and the Guarantee of Equal Treatment). Internationally, countries like the European Union have adopted a more robust approach, emphasizing a strict liability standard and a presumption of discrimination in employment cases (Directive 2000/78/EC).

As a Civil Procedure & Jurisdiction Expert, I'll provide domain-specific expert analysis of the article's implications for practitioners. The article discusses the pervasive nature of employment discrimination, which has significant implications for practitioners handling employment law cases. From a procedural perspective, this means that plaintiffs in employment discrimination cases may have a more difficult time establishing a prima facie case, which can impact their standing to sue. The Supreme Court's decision in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), established the prima facie case framework for employment discrimination claims, which requires plaintiffs to show that they were qualified for the position, were subjected to an adverse employment action, and were replaced by someone outside their protected class. In terms of pleading standards, the article highlights the challenges faced by plaintiffs in establishing a discrimination claim. The Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), established the pleading standard for federal civil cases, which requires plaintiffs to plead facts that are sufficient to show that they have a plausible claim for relief. In the context of employment discrimination cases, this means that plaintiffs must plead specific facts that demonstrate a plausible claim of discrimination, which can be a challenging task given the pervasive nature of employment discrimination. From a jurisdictional perspective, the article's implications are less clear-cut, but it is worth noting that the Supreme Court's decision in Tyson Foods, Inc. v. Bouaphakeo