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Full-Text Articles in Law
Physicalism And Patent Theory, Christopher A. Cotropia
Physicalism And Patent Theory, Christopher A. Cotropia
Law Faculty Publications
United States patent law’s view on the need for a physical embodiment of the invention, and the continued production and use of an embodiment, has varied over the last two centuries. In the early days, the requirement for “physicalism” was high, with the inventor being required to actually reduce the invention to practice prior to patenting, and enforceability was tied to “working” the claimed invention. By the early 1900s, these requirements of physicalism disappeared. This changing view on physicalism speaks volumes as to which major patent theory the law emphasizes, with physicalism supporting the incentive to invent theory and the …
(In)Valid Patents, Paul Gugliuzza
(In)Valid Patents, Paul Gugliuzza
Faculty Scholarship
Increasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment — including the validity ruling and damages …
Defending Breakthrough Innovation: The History And Future Of The State Of Patent Law, Max Oppenheimer
Defending Breakthrough Innovation: The History And Future Of The State Of Patent Law, Max Oppenheimer
All Faculty Scholarship
Congress, while enacting at least six major revisions to patent law since 1793, has left the definition of patentable subject matter essentially unchanged. The Supreme Court, on the other hand, has been uncomfortable with the concept for more than a century. Despite this long-standing discomfort, it has struggled to advance a theoretical basis for its concern. In a series of recent cases, it has finally developed a theory as to why certain types of inventions, although embraced by the statutory definition, are nonetheless unpatentable. The theory, in effect, abandons the federal government’s role in protecting those inventions. This article explores …
Coordination-Focused Patent Policy, Stephen Yelderman
Coordination-Focused Patent Policy, Stephen Yelderman
Journal Articles
This Article explores the practical consequences of an important shift that has recently taken place in patent theory. Although it was long agreed that the purpose of granting patents is to reward invention, today many scholars instead attempt to justify the patent system based on its role in facilitating information exchange and enabling technical coordination among firms. This change in justification is controversial, and its viability remains a fiercely contested question. But despite intense attention at the level of theory, little has been said about the consequences of this debate for patent policy itself. This Article addresses that void, developing …
United States Response To Questionnaire Concerning Applied Arts Under Ip Law: The Uncertain Border Between Beauty And Usefulness, June M. Besek, Robert E. Bishop, Jane C. Ginsburg, Philippa Loengard, Nathalie Russell
United States Response To Questionnaire Concerning Applied Arts Under Ip Law: The Uncertain Border Between Beauty And Usefulness, June M. Besek, Robert E. Bishop, Jane C. Ginsburg, Philippa Loengard, Nathalie Russell
Faculty Scholarship
ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.
The Unresolved Interpretive Ambiguity Of Patent Claims, Oskar Liivak
The Unresolved Interpretive Ambiguity Of Patent Claims, Oskar Liivak
Cornell Law Faculty Publications
Claims are at the heart of every major patent related issue. Most importantly, they determine a patent's potent rights of exclusion. Yet, we cannot predict how courts will set the exact boundaries of claims. This renders smooth operation of the patent system near impossible. For some time, scholars have theorized that a basic policy disagreement is a source of this uncertainty. Some judges favor narrower patents, some favor broader and judges will naturally tend toward their policy preference. Policy disagreements result in claim uncertainty. Recently, scholars Tun- Jen Chiang and Lawrence Solum have taken this view further arguing that this …
How Oracle Erred: Functionality, Useful Articles, And The Future Of Computer Copyright, Wendy J. Gordon
How Oracle Erred: Functionality, Useful Articles, And The Future Of Computer Copyright, Wendy J. Gordon
Faculty Scholarship
In Oracle v. Google (2015), the Federal Circuit addressed whether the " method header " components of a dominant computer program were uncopyrightable as " merging " with the headers' ideas or function. Google had copied the headers to ease the ability of third-party programmers to interact with Google's Android platform. The court rebuffed the copyrightability challenge; it reasoned that because the plaintiff's expression might have been written in alternative forms, there was no " merger " of idea and expression. But the Oracle court may have been asking the wrong question. In Lotus v. Borland (1995), the owner of …
Exhausting Patents, Wentong Zheng
Exhausting Patents, Wentong Zheng
UF Law Faculty Publications
A bedrock principle of patent law — patent exhaustion — proclaims that an authorized sale of a patented article exhausts the patentee’s rights with respect to the article sold. Over one hundred and fifty years of case law, however, has produced two conflicting notions of patent exhaustion, one considering exhaustion to be mandatory regardless of whether the patentee subjects the sale to express patent restrictions, and another treating exhaustion as a default rule that applies only in unconditional sales. The uncertainty surrounding the patent exhaustion doctrine casts a significant legal cloud over patent licensing practices in the modern economy and …
"Courts Have Twisted Themselves Into Knots": Us Copyright Protection For Applied Art, Jane C. Ginsburg
"Courts Have Twisted Themselves Into Knots": Us Copyright Protection For Applied Art, Jane C. Ginsburg
Faculty Scholarship
In copyright law, the marriage of beauty and utility often proves fraught. Domestic and international law makers have struggled to determine whether, and to what extent, copyright should cover works that are both artistic and functional. The U.S. Copyright Act protects a work of applied art "only if, and only to the extent that, its design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article." While the policy goal to separate the aesthetic from the functional is clear, courts' application of the statutory "separability" …