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Full-Text Articles in Law
To Construe Or Not To Construe: At The Interface Between Claim Construction And Infringement In Patent Cases, Jason R. Mudd
To Construe Or Not To Construe: At The Interface Between Claim Construction And Infringement In Patent Cases, Jason R. Mudd
Missouri Law Review
This Article examines the blurring of this interface in both the "procedural" and "substantive" contexts. Part I discusses the background and modem legal framework for classifying claim construction as a pure question of law that is answered prior to and separate from the issue of infringement. Part II analyzes the claim construction-infringement boundary in a procedural context by examining the stages of a case at which these inquiries are typically performed and the degree to which courts construe claims "in a vacuum," without reference to the accused product. This Part explains that courts are becoming increasingly accepting of and often …
Secret Prior Art: Does Prior Art In A Provisional Patent Application Bar Future Patents, Kyle Gottuso
Secret Prior Art: Does Prior Art In A Provisional Patent Application Bar Future Patents, Kyle Gottuso
Missouri Law Review
This Note will examine whether prior art found in a provisional patent application can (and should) act as prior art to defeat a subsequent application by a second inventor. In looking at this issue, this Note will ask if Giacomini can be reconciled with the principles and policies that underlie patent law. To do so, this Note will first review the facts and holding of Giacomini. Then this Note will survey the patent statutes, giving particular attention to those statutes that deal with priority and prior art. Next, this Note will examine the reasoning of the Giacomini court. Finally, this …
Forward: Symposium On Evolving The Court Of Appeals For The Federal Circuit And Its Patent Law Jurisprudence, Dennis D. Crouch
Forward: Symposium On Evolving The Court Of Appeals For The Federal Circuit And Its Patent Law Jurisprudence, Dennis D. Crouch
Missouri Law Review
As I discuss below, conditions on the ground have changed in the few short months following the Symposium. Congress has now acted, and the Patent Office will soon have additional authority. These changes play directly into the arguments of our Symposium authors and make their results even more important.
Ongoing Confusion Over Ongoing Royalties, The, Mark A. Lemley
Ongoing Confusion Over Ongoing Royalties, The, Mark A. Lemley
Missouri Law Review
In eBay Inc. v. MercExchange, L.L.C., the United States Supreme Court correctly concluded that courts had both the power and the responsibility to decide whether a successful patent owner needed injunctive relief and whether the imposition of that relief would unduly harm either the defendant or the public. The Court's application of the traditional four-factor equity test led, for the first time, to a significant number of cases in which courts found patent infringement but refused to enjoin continued infringement. That, in turn, has raised the question "what happens then?" As a matter of policy, the basic answer seems clear: …
Patent Law's Unpredictability Doctrine And The Software Arts, Greg R. Vetter
Patent Law's Unpredictability Doctrine And The Software Arts, Greg R. Vetter
Missouri Law Review
Part II reviews these insights from the Norden model generally. Part III brings these insights to the disclosure doctrines for software patents, with particular emphasis on the unpredictability factor for undue experimentation within enablement. The model corresponds well with enablement and best mode but does not correspond as well with other disclosure-prompting doctrines whose role is related to defining the claim. Thus, the review in Part III of written description, definiteness, and means-plus-function (§ 112 T 6) claim limitations helps establish the contours of applicability for the Norden model. The discussion of Part III also reviews the current state of …
Crafting A 21st Century United States Patent And Trademark Office, David Kappos
Crafting A 21st Century United States Patent And Trademark Office, David Kappos
Missouri Law Review
Good morning. It is a privilege to be here representing the United States Patent and Trademark Office (USPTO). I want to thank the Missouri Law Review for the invitation and for hosting me here today. Moreover, I want to commend the University of Missouri for convening this important conference. These are critical topics, and today I want to focus on the key role the USPTO will play in shaping patent protections in the future. But let me first congratulate the members from the Federal Circuit who are present today for thirty years of excellence in addressing the most fundamental of …
Unpredictability In Patent Law And Its Effect On Pharmaceutical Innovation, Christopher M. Holman
Unpredictability In Patent Law And Its Effect On Pharmaceutical Innovation, Christopher M. Holman
Missouri Law Review
Part II of this Article summarizes the current R&D crisis confronting the pharmaceutical industry and the accompanying drop-off in innovative output from this important technological sector. Part III explains Mr. Armitage's "view from industry," which attributes a significant causative effect to unpredictability in the patent system. Part IV provides two Lilly case studies involving generic challenges to two of the company's important drugs, Gemzar and Strattera, in which the company has suffered as a result of this unpredictability. Part V identifies three distinct forms of unpredictability in patent law: unpredictability caused by the proliferation of loosely defined standards rather than …