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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 …
Patent Claim Interpretation Review: Deference Or Correction Driven?, Christopher A. Cotropia
Patent Claim Interpretation Review: Deference Or Correction Driven?, Christopher A. Cotropia
Law Faculty Publications
This Article examines the Federal Circuit's review of claim constructions by lower tribunals to determine whether the Federal Circuit defers to lower court constructions or is making its own, independent determination as to the "correct" construction and ultimate result in the case. The data collected from 2010 to 2013 indicates that the Federal Circuit affirms about 75% of lower court claim interpretations. While this finding is itself surprising, even more surprising is that these reviews do not appear to be driven by deference. Instead, the Federal Circuit is less likely to correct constructions that resulted in a patentee loss below, …
Predictability And Nonobviousness In Patent Law After Ksr, Christopher A. Cotropia
Predictability And Nonobviousness In Patent Law After Ksr, Christopher A. Cotropia
Law Faculty Publications
In KSR International Co. v. Teleflex, Inc., the Supreme Court addressed the doctrine of nonobviousness, the ultimate question of patentability, for the first time in thirty years. In mandating a flexible approach to deciding nonobviousness, the KSR opinion introduced two predictability standards for determining nonobviousness. The Court described predictability of use (hereinafter termed "Type I predictability" )-whether the inventor used the prior art in a predictable manner to create the invention-and predictability of the result (hereinafter termed "Type II predictability")-whether the invention produced a predictable result-both as a means for proving obviousness. Although Type I predictability is easily explained as …
Information May Want To Be Free, But Information Products Do Not: Protecting & Facilitating Transactions In Information Products (Reprint), Kristen Osenga
Information May Want To Be Free, But Information Products Do Not: Protecting & Facilitating Transactions In Information Products (Reprint), Kristen Osenga
Law Faculty Publications
Information products-products that are used to organize, provide context, and distribute information-have gone largely unprotected by intellectual property regimes. As a result, producers of information products, such as databases and software, have resorted to alternative mechanisms to protect their investments. These mechanisms have resulted in both over-protection and under-protection ofthe information products. Further, the uncertainty in the boundaries of coverage, coupled with the resort to self-help mechanisms, may well inhibit, rather than facilitate, information flow. What is needed is a sui generis protection scheme for information products that clearly defines the boundaries and protection requirements for these works and that …
What Is The "Invention"?, Christopher A. Cotropia
What Is The "Invention"?, Christopher A. Cotropia
Law Faculty Publications
Patent law is in flux, with recent disputes and changes in doctrine fueled by increased attention from the Supreme Court and en banc activity by the Federal Circuit. The natural reaction is to analyze each doctrinal area involved on its own. Upon a closer look, however, many patent cases concern a single, fundamental dispute. Conflicts in opinions on such issues as claim interpretation methodology and the written description requirement are really disagreements over which "invention" the courts should be considering. There are two concepts of invention currently in play in patent decisions. The first is an "external invention" definition, in …
Strength Of The International Trade Commission As A Patent Venue, Christopher A. Cotropia
Strength Of The International Trade Commission As A Patent Venue, Christopher A. Cotropia
Law Faculty Publications
The data suggests that the ITC is here to stay and almost all patent enforcement actions will take place, at least in part, in the ITC. The landscape of patent enforcement has permanently changed, and the ITC is a solid part of it. This Article reaches these conclusions by first, in Part I, describing the unique features of the ITC that make it a favored venue of patentees. Part II describes the Federal Circuit's decision in Kyocera and the various postulates as to its impact. Part III describes the study, the specific data obtained, and the results. Part IV analyzes …
Modernizing Patent Law's Inequitable Conduct Doctrine, Christopher A. Cotropia
Modernizing Patent Law's Inequitable Conduct Doctrine, Christopher A. Cotropia
Law Faculty Publications
This Article's main finding is that the inequitable conduct doctrine has the ability to improve patent quality as long as the inherent tendency to overcomply with the doctrine by overloading the USPTO with information is kept in check. The Article reaches this conclusion by proceeding in five parts. Part II describes the current thinking on the inequitable conduct doctrine, with particular focus on the major critiques of the doctrine and proposed legislative and administrative responses. Part III of the Article begins the construction of a fundamental, conceptual framework for the doctrine by explaining how it impacts both patent quality and …
Copying In Patent Law, Christopher A. Cotropia
Copying In Patent Law, Christopher A. Cotropia
Law Faculty Publications
Patent law is virtually alone in intellectual property (IP) in punishing independent development. To infringe a copyright or trade secret, defendants must copy the protected IP from the plaintiff, directly or indirectly. But patent infringement requires only that the defendant's product falls within the scope of the patent claims. Not only doesn't the defendant need to intend to infringe, but the defendant may be entirely unaware of the patent or the patentee and still face liability. Nonetheless, copying does play a role in some subsidiary patent doctrines, including damages rules, willfulness, and obviousness. More significantly, the rhetoric of patent law …
Counterclaims, The Well-Pleaded Complaint, And Federal Jurisdiction, Christopher A. Cotropia
Counterclaims, The Well-Pleaded Complaint, And Federal Jurisdiction, Christopher A. Cotropia
Law Faculty Publications
This Article proceeds as follows: Part I of the Article begins by laying the statutory and constitutional foundation of "arising under" jurisdiction. The current connection between "arising under" jurisdiction and federal question jurisdiction is discussed. Part I also fully sets forth the well-pleaded complaint rule, and discusses removal jurisdiction, which is governed by the concept of "arising under" jurisdiction. As necessary background to understanding the Court's reasoning in Holmes and why the case prompts a general discussion on federal jurisdiction implications, Part I concludes by defining a district court's jurisdiction over patent cases, the Federal Circuit's appellate jurisdiction over patent …