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An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
Thomas F. Cotter
In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …
Four Questionable Rationales For The Patent Misuse Doctrine, Thomas F. Cotter
Four Questionable Rationales For The Patent Misuse Doctrine, Thomas F. Cotter
Thomas F. Cotter
When a patent infringement defendant succeeds in proving that the patent owner has misused its patent, the patent is rendered unenforceable unless and until the misuse is purged. Case law has never clearly articulated precise criteria for determining the boundaries of the misuse doctrine, however. Although the misuse doctrine overlaps to some extent with substantive antitrust law, for example, under current law not every instance of misuse is necessarily an antitrust violation, and not every patent-related antitrust violation necessarily constitutes misuse. In this paper, I identify four possible justifications for the patent misuse doctrine that, in theory, could provide guidance …
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
Thomas F. Cotter
In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
Thomas F. Cotter
In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
Thomas F. Cotter
In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
Thomas F. Cotter
In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
Thomas F. Cotter
In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …
Optimal Fines For False Patent Marking, Thomas F. Cotter
Optimal Fines For False Patent Marking, Thomas F. Cotter
Thomas F. Cotter
Since January 1, 2010, plaintiffs have filed over three hundred lawsuits under 35 U.S.C. § 292, the false patent marking statute. Fueled in large part by recent Federal Circuit case law embracing an expansive interpretation of the statute, this uptick has alarmed some observers, who fear that patent owners whose products bear the numbers of expired or inapplicable patents could be liable for, literally, billions of dollars in fines. While Congress and the courts consider various responses, one issue that has failed to attract much notice thus far is the question of how to calculate appropriate fines for marking violations. …
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
Thomas F. Cotter
In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Essay proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
Thomas F. Cotter
In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
An Economic Analysis Of Patent Law's Inequitable Conduct Doctrine, Thomas F. Cotter
Thomas F. Cotter
In recent years, patent law’s inequitable conduct doctrine has attracted considerable attention from judges, legislators, patent lawyers and commentators, culminating most recently in the Federal Circuit’s decision to reconsider en banc several aspects of the doctrine in Therasense, Inc. v. Becton, Dickinson & Co. Building on the work of other scholars, this Article proposes an instrumental view of the doctrine as, ideally, a tool for inducing patent applicants to disclose the optimal quantity of information relating to the patentability of their inventions; it then presents a formal model of the applicant’s choices in deciding how much information to reveal. The …
I, Thomas F. Cotter
I, Thomas F. Cotter
Thomas F. Cotter
Many states confer upon natural persons a “right of publicity” that renders unlawful the unauthorized use of a person’s name or other indicia of identity for purposes of trade. Efforts to reconcile publicity rights with the First Amendment and with principles of copyright preemption, however, have differed radically from one state or circuit to another, as well as within the scholarly community. In this Article, we present a comprehensive framework for integrating both First Amendment and copyright preemption principles into standard publicity analysis. Our framework eliminates much of the incoherence found in contemporary right of publicity case law by adopting …
Integrating The Right Of Publicity With First Amendment And Copyright Preemption Analysis, Thomas F. Cotter
Integrating The Right Of Publicity With First Amendment And Copyright Preemption Analysis, Thomas F. Cotter
Thomas F. Cotter
Many states confer upon natural persons a “right of publicity” that renders unlawful the unauthorized use of a person’s name or other indicia of identity for purposes of trade. Efforts to reconcile publicity rights with the First Amendment and with principles of copyright preemption, however, have differed radically from one state or circuit to another, as well as within the scholarly community. In this Article, we present a comprehensive framework for integrating both First Amendment and copyright preemption principles into standard publicity analysis. Our framework eliminates much of the incoherence found in contemporary right of publicity case law by adopting …
Towards A Functional Definition Of Publication In Copyright Law, Thomas F. Cotter
Towards A Functional Definition Of Publication In Copyright Law, Thomas F. Cotter
Thomas F. Cotter
The questions of whether, when, and where an author has “published” her work of authorship traditionally has given rise to, and continues to give rise to, numerous consequences, including the protectability of the work under U.S. copyright law; the running of various time periods, including a grace period for registering the copyright and the termination of copyright in works made for hire; the applicability of fair use and other exceptions to copyright liability; and the imposition of the duty to deposit two copies of the work with the Library of Congress. Although the 1976 Copyright Act, unlike its predecessors, includes …
Fair Use And Copyright Overenforcement, Thomas F. Cotter
Fair Use And Copyright Overenforcement, Thomas F. Cotter
Thomas F. Cotter
Economic analysis has long suggested that there are two distinct categories of cases in which the fair use defense, which permits the unauthorized reproduction and other use of copyrighted materials, should apply: first, when the transaction cost of negotiating with the copyright owner for permission to use exceeds the private value of the use to the would-be user; and second, when the individual use is thought to generate some positive externality, such that the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn may exceed the value of the …
Fair Use And Copyright Overenforcement, Thomas F. Cotter
Fair Use And Copyright Overenforcement, Thomas F. Cotter
Thomas F. Cotter
Copyright’s fair use doctrine permits the unauthorized reproduction and adaptation of copyrighted expression under a variety of circumstances. Economic analysis posits that these circumstances can be roughly grouped into two categories: first, when the transaction costs of negotiating with the copyright owner for permission exceed the value of the use to the would-be user; and second, when the net social value of the use exceeds the value to the copyright owner of preventing the use, which in turn exceeds the value of the use to the individual user. Considerable anecdotal evidence, however, suggests that would-be users are often deterred from …