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Full-Text Articles in Law
Hit The Road, Jack: The Auto Industry As The Next Vehicle For Predatory Infringement, Kristen Osenga
Hit The Road, Jack: The Auto Industry As The Next Vehicle For Predatory Infringement, Kristen Osenga
Law Faculty Publications
While patents, patent litigation, and patent pools have been part of the automotive industry since the late-1800s, the prevalence of technology covered by standards and accompanying standard essential patents (SEPs) is much more recent. Today’s smart cars and the widespread incorporation of telecommunication and Internet of Things standards in vehicles raise concerns about how well the automotive industry will be able to adapt to this new SEP-laden future. This article predicts that predatory infringement of SEPs for two related reasons. First, although some industries, such as telecommunications, have long dealt with SEPs, the incorporation of standardized technology is more recent …
I 4 An I: Why Changing The Standard For Overcoming The Presumption Of Patent Validity Will Cause More Harm Than Good, John A. Morrissett
I 4 An I: Why Changing The Standard For Overcoming The Presumption Of Patent Validity Will Cause More Harm Than Good, John A. Morrissett
Law Student Publications
First, this paper describes the interests behind the presumption of patent validity and the historical treatment of the burden of proof required to overcome that presumption. While precedent does not bind the Supreme Court, it is important to consider how and why a particular standard has been applied in addition to Congress’s inaction in implementing a new standard. Second, this paper examines arguments in support of maintaining the status quo, changing to a preponderance of the evidence standard, and adopting a dual standard where some evidence must rise to the level of clear and convincing evidence while other evidence need …
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 …
A Penguin's Defense Of The Doctrine Of Equivalents, Kristen Jakobsen Osenga
A Penguin's Defense Of The Doctrine Of Equivalents, Kristen Jakobsen Osenga
Law Faculty Publications
There is no dearth of commentary about the doctrine of equivalents in patent law. Many articles proclaim the doctrine's death, often noting its passage with unbridled delight. Some articles provide empirical evidence to support the assertion that the doctrine of equivalents is dead. Others simply yearn for the doctrine to fade from use, pointing out that no court has "articulated a convincing rationale" for the doctrine's continued use. But maybe these scholars have it wrong. It may be true that the instances of doctrine of equivalents analysis in patent cases are on the decline and successful outcomes based on the …
Particularizing Patent Pleading: Pleading Patent Infringement In A Post-Twombly World, Jonathan L. Moore
Particularizing Patent Pleading: Pleading Patent Infringement In A Post-Twombly World, Jonathan L. Moore
Law Student Publications
The Supreme Court's recent jurisprudence has reinvigorated the role of pleading in civil litigation. As a result, in order to survive a motion to dismiss, plaintiffs must now include more detailed allegations that demonstrate a plausible entitlement to relief. This article examines how these changes interact with the pleading requirements for patent infringement litigation. In recent years, the number of patent infringement lawsuits has increased dramatically, in part because of lax notice pleading requirements. This patent litigation explosion imposes exorbitant costs on defendants and has a detrimental effect on innovation. As courts begin to apply the new plausibility pleading regime, …
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 …