Law Commons^™

Certiorari, Universality, And A Patent Puzzle, Tejas N. Narechania

Tejas N. Narechania

Patent Injunctions On Appeal: An Empirical Study Of The Federal Circuit's Application Of Ebay, Christopher B. Seaman, Ryan T. Holte

Christopher B. Seaman

More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit. This Article represents the first comprehensive …

The Supreme Assimilation Of Patent Law, Peter Lee

Peter Lee

Although tensions between universality and exceptionalism apply throughout law, they are particularly pronounced in patent law, a field that deals with highly technical subject matter. This Article explores these tensions by investigating an underappreciated descriptive theory of Supreme Court patent jurisprudence. Significantly extending previous scholarship, it argues that the Court’s recent decisions reflect a project of eliminating “patent exceptionalism” and assimilating patent doctrine to general legal principles (or, more precisely, to what the Court frames as general legal principles). Among other motivations, this trend responds to rather exceptional patent doctrine emanating from the Federal Circuit in areas as varied as …

E-Obviousness, Glynn S. Lunney Jr.

Glynn Lunney

As patents expand into e-commerce and methods of doing business more generally, both the uncertainty and the risk of unjustified market power that the present approach generates suggest a need to rethink our approach to nonobviousness. If courts fail to enforce the nonobviousness requirement and allow an individual to obtain a patent for simply implementing existing methods of doing business through a computer, even where only trivial technical difficulties are presented, entire e-markets might be handed over to patent holders with no concomitant public benefit. If courts attempt to enforce the nonobviousness requirement, but leave undefined the extent of the …

Patent Misuse And Antitrust: Rebirth Or False Dawn?, Daryl Lim

Daryl Lim

This Article examines how two recent cases, F.T.C. v. Actavis and Kimble v. Marvel Enterprises Inc. could affect both the equitable defense of patent misuse and the patent-antitrust interface more generally. It begins by tracing the history of patent misuse and its reformulation into an “antitrust-lite” doctrine by the Federal Circuit. This Article presents new empirical data confirming this reformulation, and unveils the surprising influence of the Seventh Circuit and the Chicago School on that reformulation. The Article then explores Actavis and Kimble. It explains why Actavis will catalyze more antitrust challenges when patent rights are exercised, and why it …

Living With Monsanto, Daryl Lim

Daryl Lim

Bowman v. Monsanto Co. signaled the end of an era of seed saving. Farmers must buy new seed for replanting or risk patent infringement. The familiar rhetoric of oppressed farmers belies the fact that Monsanto’s success rests in part on farmers prizing its innovations. Current trends indicate that this reliance on Monsanto will continue. The Supreme Court correctly found for Monsanto. However, future cases must iron out the kinks in the Bowman decision. Despite the Court’s best intentions, inadvertence cannot shield farmers from patent infringement. The Court must also make it clear that patentees cannot use licensing restrictions to claw …

Living With Monsanto, 2015 Mich. St. L. Rev. 559 (2015), Daryl Lim

Daryl Lim

Empirical Studies Of Claim Construction, Jonas Anderson

J. Jonas Anderson

Hyperactive Judges: An Empirical Study Of Judge-Dependent "Judicial Hyperactivity" In The Federal Circuit, Ted L. Field

Ted L. Field

This article presents an empirical study of the extent to which individual judges of the U.S. Court of Appeals for the Federal Circuit—which has exclusive jurisdiction over patent appeals—engage in what William C. Rooklidge and Matthew F. Weil call “judicial hyperactivity.” This article defines “judicial hyperactivity” as a form of judicial activism in which a judge improperly “elevate[s] his or her judgment above that of another constitutionally significant actor (e.g., Congress, the President, [or] other Article III courts),” where this improper behavior is not necessarily driven by politics or ideology as is traditional judicial activism. This study considers the extent …

A Thousand Tiny Pieces: The Federal Circuit’S Fractured Myriad Ruling, Lessons To Be Learned, And The Way Forward, Jonathan R. K. Stroud

Jonathan R. K. Stroud

No abstract provided.

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Ryan G. Vacca

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …

The Use And Abuse Of Patent Reexamination: Sham Petitioning Before The Uspto, Raymond A. Mercado

Raymond A Mercado

This article investigates the susceptibility of the patent reexamination process to abuse and argues that “sham petitioning” in the reexamination context threatens to undermine the quid pro quo of the patent system, jeopardizing the objectives of innovation and disclosure by weakening the incentive of the patent right. Since reexamination casts a cloud on the validity of a patent and harms enforceability, the patent holder subject to such a proceeding instigated under false pretenses can be deprived of the economic benefits his patent should otherwise have afforded him. To say nothing of the possibility that any fraud on the part of …

Patent Reform Arrives -- Without Congressional Action, James R. Farrand

James R. Farrand

Abstract is on cover page of ms.

Authors are not shown on ms to allow anonymous review. Author names and affiliations are available via an email request to the lead author.

Lead author's e-address is james.farrand@aporter.com

Patent Law And The Two Cultures, Peter Lee

Peter Lee

A half century ago, author and physicist C.P. Snow warned of a “gulf of mutual incomprehension” between the liberal arts and sciences. Snow’s “Two Cultures” thesis is particularly relevant to patent law, a realm where law and science intersect. Drawing on Snow’s framework, this Article addresses challenges that arise when lay judges must engage, understand, and ultimately pass judgment on complex technologies. It first argues that technological subject matter imposes significant cognitive burdens on generalist judges. It then explores the “cognitive miser” model whereby lay persons adopt heuristics and defer to expertise to limit their engagement with technology. Drawing from …

Construing Patent Claims In Light Of The Specification Versus Importing Claim Limitations From The Specification: Is There Any Difference?, Robbie R. Harmer

Robbie R Harmer

Patent litigation often turns on the meaning of words in patent claims. Though litigants, licensees, assignees, and examiners at the U.S. Patent and Trademark Office (PTO) all must interpret, or construe, patent claims at some point in the lifetime of a patent, judges have the final say as to the scope and meaning of the words in patent claims. Judges’ interpretive methodologies raise questions about the relationship between the claims and the specification. The Federal Circuit, having exclusive appellate jurisdiction over patents, has established that courts should construe patent claims “in light of” the patent specification. On the other hand, …

A Question Of Deference: Contrasting The Patent And Trademark Jurisdiction Of The Federal Circuit, Brian Dean Abramson

Brian Dean Abramson Esq.

This article details the various routes by which a patent or trademark matter may fall within the purview of the United States Court of Appeals for the Federal Circuit, and the divergent jurisdictional approach taken by the Federal Circuit to these different areas of law. This article was a top five finalist out of 125 submissions to the Federal Circuit Bar Association’s 2009 George Hutchinson Writing Competition.

Improving The Federal Circuit's Approach To Choice Of Law For Procedural Matters In Patent Cases, Ted L. Field

Ted L. Field

Because of its virtually exclusive jurisdiction over patent cases from the entire country, the United States Court of Appeals for the Federal Circuit faces a unique situation with respect to choice of law for procedural matters in patent cases. Normally, in a non-patent-related case, a district court applies the procedural-law precedent of the U.S. Court of Appeals for the circuit in which the district court sits. However, because the Federal Circuit’s jurisdiction is based on subject matter rather than geography, the court has had to choose whether (1) to develop and apply its own precedent to procedural matters or (2) …

Asserting Foreign Patent Claims In U.S. Federal Courts: What’S Left After Voda V. Cordis?, Eric D. Chan

Eric David Chan

Patent law is inherently territorial; a patent covers infringing activity only within the borders of the nation in which it should granted. However, this makes enforcing patent rights worldwide a daunting challenge. Rather than recklessly extending the extraterritorial reach of U.S. patent law, a better alternative would be to assert claims for infringement of multiple foreign patents in a single, U.S. forum.

This paper focuses on the new barriers raised to the prospects for such consolidated, multinational patent infringement proceedings by Voda v. Cordis, decided by the Federal Circuit in February. Voda held that federal supplemental jurisdiction should almost never …