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Full-Text Articles in Law
The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang
The “Commercial Offer For Sale” Standard After Minnesota Mining V. Chemque, Campbell Chiang
Duke Law & Technology Review
The Supreme Court established a two-part test for determining when an invention is "on sale" under 35 U.S.C. §102(b) in Pfaff v. Wells Electronics, Inc. For the on-sale bar to be triggered, the invention must be "ready for patenting" and subject of a "commercial offer for sale." In Minnesota Mining & Manufacturing v. Chemque, Inc., the Federal Circuit expounded on what constitutes a commercial offer for sale. This iBrief explores what is considered a "commercial offer for sale."
Patenting Computer Data Structures: The Ghost, The Machine And The Federal Circuit, Andrew Joseph Hollander
Patenting Computer Data Structures: The Ghost, The Machine And The Federal Circuit, Andrew Joseph Hollander
Duke Law & Technology Review
Courts view "data structures," the mechanism by which computers store data in meaningful relationships, differently than do computer scientists. While computer scientists recognize that data structures have aspects that are both physical (how they are stored in memory) and logical (the relationships among the stored information), the Federal Circuit, in its attempts to set clear standards of the scope of patentability of data structures, has not fully appreciated their dualistic nature. This i-brief explains what data structures are, explores how courts have wrestled with setting a limiting principle to determine their patentability, and discusses the resultant impact on claim drafting.
U.S. Infringement Liability For Foreign Sellers Of Infringing Products, Troy Petersen
U.S. Infringement Liability For Foreign Sellers Of Infringing Products, Troy Petersen
Duke Law & Technology Review
With the ever-increasing international flavor of business comes an important question for United States patent holders and foreign manufacturers alike: Can a company be held liable for patent infringement in the United States for selling an infringing product abroad that is later imported into the United States?
Pfaff Revisited: How The Federal Circuit Has Elaborated On The “Ready For Patenting” Standard, Jennifer F. Miller
Pfaff Revisited: How The Federal Circuit Has Elaborated On The “Ready For Patenting” Standard, Jennifer F. Miller
Duke Law & Technology Review
In Pfaff v. Wells Electronics, Inc., the Supreme Court established a two-part test to determine when an invention is "on sale" for purposes of Title 35 U.S.C. §102(b). In addition to being the subject of a commercial offer for sale, an invention must be "ready for patenting" in order to be considered "on sale." Since Pfaff, the Court of Appeals for the Federal Circuit has had numerous opportunities to expound upon how inventors can fulfill the latter condition. This iBrief will discuss the factors the Federal Circuit has determined are indicative of an invention's "ready for patenting" status.
3d Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?, Ben Quarmby
3d Molecular Structures: Patentable Subject Matter Under 35 U.S.C. §101?, Ben Quarmby
Duke Law & Technology Review
With the advent of protein engineering, the determination of a protein’s 3D structure has taken on a whole new importance. This has prompted some to call for the United States Patent and Trademark Office [USPTO] to break with tradition and allow patents on the three-dimensional structural information of proteins. This iBrief will discuss whether such information would constitute patentable subject matter under 35 U.S.C. §101, and how much protection patents on this information could actually confer.
Fairplay Or Greed: Mandating University Responsibility Toward Student Inventors, Carmen J. Mccutcheon
Fairplay Or Greed: Mandating University Responsibility Toward Student Inventors, Carmen J. Mccutcheon
Duke Law & Technology Review
Over twenty years have passed since the enactment of The Patent and Trademark Law Amendments Act (Bayh-Dole Act) and universities continue to struggle with their technology transfer infrastructures. Lost in that struggle are those who could be considered the backbone of university research: the students. Graduate and undergraduate students remain baffled by the patent assignment and technology transfer processes within their various institutions. Efforts should be undertaken by universities to clarify the student's position in the creative process.
A Putative Inventor’S Remedies To Correct Inventorship On A Patent, Campbell Chiang
A Putative Inventor’S Remedies To Correct Inventorship On A Patent, Campbell Chiang
Duke Law & Technology Review
Inventorship is a required component of patents issued in the United States, and the penalty for filing a patent with incorrect inventorship is harsh: possible invalidation of the entire patent. This iBrief explores the background on inventorship in the United States patent system, and various remedies such as 35 U.S.C. §116, 35 U.S.C. §256, and interference proceedings in correcting errors in inventorship. This iBrief will then discuss the usefulness of these various remedies to a putative inventor who was left off the inventorship of a patent.
Sealing The Coffin On The Experimental Use Exception, Jennifer Miller
Sealing The Coffin On The Experimental Use Exception, Jennifer Miller
Duke Law & Technology Review
In a petition for writ of certiorari, Duke University requests that the Supreme Court reverse a Federal Circuit holding that, in its view, "seals the coffin on the experimental use exception for private universities." This iBrief discusses the Federal Circuit's decision in Madey v. Duke University and its possible effects on the progress of science.
Software Patent Law: United States And Europe Compared, Michael Guntersdorfer
Software Patent Law: United States And Europe Compared, Michael Guntersdorfer
Duke Law & Technology Review
Software is a global business. Patents are increasingly the protection of choice; as a consequence, international software patent laws are of growing importance to software vendors. This article focuses on European patent law and how it differs from United States law in regards to software technology. Statutes and relevant case law of both unions are discussed and compared, providing an introductory secondary source for scholars and practitioners.
Patent Royalties Extending Beyond Expiration: An Illogical Ban From Brulotte To Scheiber, Michael Koenig
Patent Royalties Extending Beyond Expiration: An Illogical Ban From Brulotte To Scheiber, Michael Koenig
Duke Law & Technology Review
A recent decision by the Seventh Circuit Court of Appeals, Scheiber v. Dolby Laboratories, Inc., called into question, yet dutifully applied, the somewhat disfavored Supreme Court patent case of Brulotte v. Thys Co. For thirty-eight years, Brulotte has served as an absolute prohibition on the collection of any patent royalties extending beyond the expiration date of the patent. As Justice Douglas stated in writing for the eight-Justice majority, "a patentee's use of a royalty agreement that projects beyond the expiration date of the patent is unlawful per se." Ostensibly, this concise and easily-applied exposition of the law seems sensible enough. …