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Full-Text Articles in Law
Forward To The Past, Michael Risch
Forward To The Past, Michael Risch
Michael Risch
The Supreme Court’s decision in Bilski v. Kappos - banning all patents claiming ‘‘abstract ideas,’’ but refusing to categorically bar any particular type of patent - represents a return to the Court’s past patentable subject matter jurisprudence. In so returning, the Court determined that business methods could potentially be patentable. This Supreme Court Review article discusses what is essentially a restart: lower courts and the PTO must remake the law using the same precedent that led to the rigid rules rejected by the Court in Bilski. Part I discusses Mr. Bilski’s patent application and the Court’s ruling that it is …
Patent Challenges And Royalty Inflation, Michael Risch
Patent Challenges And Royalty Inflation, Michael Risch
Michael Risch
Eliminating bad patents is supposed to be a good thing, and so federal law allows any interested party to challenge a patent's validity almost any time. But the law goes a step further than merely conferring broad challenge rights. It also makes them nearly impossible to contract away. Instead, federal law voids any agreement not to challenge a patent. While a contract ordinarily signifies a final resolution of all issues covered by its terms, no such peace exists in patent licensing. This inalienability of patent challenge rights comes at a cost, a cost borne by many patent licensees and their …
Reinventing Usefulness, Michael Risch
Reinventing Usefulness, Michael Risch
Michael Risch
Patent law includes one of this country’s oldest continuous statutory requirements: since 1790, and without variance, inventors are only entitled to patent “new and useful” inventions. While “newness” receives constant attention and debate, usefulness has been largely ignored. Usefulness has transformed into the toothless and misunderstood “utility” doctrine, which requires that patents only have a bare minimum potential for use. This article seeks to reinvent patentable usefulness. It is the first comprehensive look at usefulness and it reasons that a core benefit of the requirement is to aid in the commercialization of inventions. The article then proposes two ways that …
A Brief Defense Of The Written Description Requirement, Michael Risch
A Brief Defense Of The Written Description Requirement, Michael Risch
Michael Risch
This essay provides a brief defense of the much maligned "written description" requirement in patent law. Many argue that there is no such requirement, and that a patent specification that enables a person having ordinary skill in the art (the PHOSITA) to make and use the invention is sufficient, even if the specification contains no description of the invention. This essay briefly describes the dispute, and then raises an important but under-theorized argument in favor of a separate written description requirement. The essay accepts the persuasive grammatical reading of the statute proposed by opponents of a separate written description requirement. …