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- 35 U.S.C. § 271(b) (1)
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- Helferich (1)
- Inducement (1)
- Lear Inc. v. Adkins (1)
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Articles 1 - 6 of 6
Full-Text Articles in Law
Product Hopping: A New Framework, Michael A. Carrier, Steve D. Shadowen
Product Hopping: A New Framework, Michael A. Carrier, Steve D. Shadowen
Notre Dame Law Review
One of the most misunderstood and anticompetitive business behaviors in today’s economy is “product hopping,” which occurs when a brand-name pharmaceutical company switches from one version of a drug to another. These switches, benign in appearance but not necessarily in effect, can significantly decrease consumer welfare, impairing competition from generic drugs to an extent that greatly exceeds any gains from the “improved” branded product.
The antitrust analysis of product hopping is nuanced. It implicates the intersection of antitrust law, patent law, the Hatch-Waxman Act, and state drug product selection laws. In fact, the behavior is even more complex because it …
The First Amendment Walks Into A Bar: Trademark Registration And Free Speech, Rebecca Tushnet
The First Amendment Walks Into A Bar: Trademark Registration And Free Speech, Rebecca Tushnet
Notre Dame Law Review
This Article analyzes the First Amendment arguments against section
2(a)’s disparagement bar with reference to the consequences of any
invalidation on the rest of the trademark statute. My fundamental conclusions
are that In re Tam is wrongly reasoned even given the Supreme Court’s
increased scrutiny of commercial speech regulations, and that to hold otherwise
and preserve the rest of trademark law would require unprincipled distinctions
within trademark law. More generally, the Supreme Court’s First
Amendment jurisprudence has become so expansive as to threaten basic
aspects of the regulatory state; the result of subjecting economic regulations
such as trademark registration to …
(In)Valid Patents, Paul R. Gugliuzza
(In)Valid Patents, Paul R. Gugliuzza
Notre Dame Law Review
Increasingly, accused infringers challenge a patent’s validity in two different forums: in litigation in federal court and in post-issuance review at the Patent and Trademark Office (PTO). These parallel proceedings have produced conflicting and controversial results. For example, in one recent case, a district court rejected a challenge to a patent’s validity and awarded millions of dollars in damages for infringement. The Federal Circuit initially affirmed those rulings, ending the litigation over the patent’s validity. In a subsequent appeal about royalties owed by the infringer, however, the Federal Circuit vacated the entire judgment—including the validity ruling and damages award it …
Authorized Personnel Only: The Patent Exhaustion Doctrine After Helferich, Jeffrey W. Schmidt
Authorized Personnel Only: The Patent Exhaustion Doctrine After Helferich, Jeffrey W. Schmidt
Notre Dame Law Review
This Note will analyze the framework utilized by the Federal Circuit in Helferich to assess whether or not it follows Supreme Court precedent along with the public policies that govern American patent law. Part I provides a brief introduction to the patent exhaustion doctrine and the public policies surrounding the doctrine and patent law in general and discusses important Supreme Court cases that defined the doctrine. Part II discusses Helferich in detail and lays out some of the major differences between the approaches taken by the Federal Circuit and the one taken by the district court. Part III analyzes the …
The Supreme Court's Quiet Revolution In Induced Patent Infringement, Timothy R. Holbrook
The Supreme Court's Quiet Revolution In Induced Patent Infringement, Timothy R. Holbrook
Notre Dame Law Review
The Supreme Court over the last decade or so has reengaged with patent law. While much attention has been paid to the Court’s reworking of what constitutes patent-eligible subject matter and enhancing tools to combat “patent trolls,” what many have missed is the Court’s reworking of the contours of active inducement of patent infringement under 35 U.S.C. § 271(b). The Court has taken the same number of § 271(b) cases as subject matter eligibility cases—four. Yet this reworking has not garnered much attention in the literature. This Article offers the first comprehensive assessment of the Court’s efforts to define active …
Patent "Trolls" And Claim Construction, Greg Reilly
Patent "Trolls" And Claim Construction, Greg Reilly
Notre Dame Law Review
This Article explores the largely overlooked relationship between claim construction and patent assertion entities (patent “trolls”), finding that claim construction problems and trends benefit patent assertion entities. First, the Federal Circuit’s deep divide over the proper approach to claim construction creates uncertain patent scope, which is widely recognized as a core reason for the success of patent assertion entities. Second, case law and commentary increasingly endorse an approach to claim construction that relies on the “general meaning” in the technical field with limited reliance on the patent itself, which benefits patent assertion entities by increasing the breadth and uncertainty of …