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Articles 1 - 15 of 15
Full-Text Articles in Intellectual Property Law
Third-Party Interests And The Property Law Misfit In Patent Law, Sarah Rajec
Third-Party Interests And The Property Law Misfit In Patent Law, Sarah Rajec
Faculty Publications
Courts and scholars have long parsed the characteristics of patent grants and likened them, alternately, to real or personal property law, monopolies, public franchises and other regulatory grants, or a hybrid of these. The characterizations matter, because they can determine how patents are treated for the purposes of administrative review, limitations, and remedies, inter alia. And these varied treatments in turn affect incentives to innovate. Patents are often likened to real property in an effort to maximize rights and allow inventors to internalize all of the benefits from their activities. And courts often turn first to real property analogies when …
Patent Law’S Purposeful Ambiguity, Craig Allen Nard
Patent Law’S Purposeful Ambiguity, Craig Allen Nard
Faculty Publications
The ambiguity of language is an unremarkable, yet persistent force within our legal system. In the context of patent law, ambiguity presents a particularly acute dilemma; namely, while describing technological innovations is a salient feature of the patent system, affecting the validity and scope of one’s property right, the blunt nature of language makes this task particularly difficult. This paper argues to address this vexing fixture, patent doctrine purposely embraces ambiguity as a linguistic accommodation that provides measured flexibility for actors to claim and describe their innovations. It should not be surprising, therefore, that some of patent law’s most venerable …
Legal Fictions And The Role Of Information In Patent Law, Craig Allen Nard
Legal Fictions And The Role Of Information In Patent Law, Craig Allen Nard
Faculty Publications
The common law plays a prominent role in the development of American patent law. Judicial stewardship of the patent space can be seen as an institutional advantage, one that compares favorably to punctuated, and potentially more distortive or inartful, congressional action. The common law allows for a certain flexibility, and despite its deep allegiance to tradition, crust forms more readily on statutory law than the common law. One of the tools that reflects this institutional litheness is the use of legal fictions, which have been employed by judges in various areas of the law seemingly since the beginning of the …
Free Trade In Patented Goods: International Exhaustion For Patents, Sarah R. Wasserman Rajec
Free Trade In Patented Goods: International Exhaustion For Patents, Sarah R. Wasserman Rajec
Faculty Publications
Modern international trade law seeks to increase global welfare by lowering barriers to trade and encouraging international competition. This “free trade” approach, while originally applied to reduce tariffs on trade, has been extended to challenge non-tariff barriers, with modern trade agreements targeting telecommunication regulations, industrial and product safety standards, and intellectual property rules. Patent law, however, remains inconsistent with free-trade principles by allowing patent holders to subdivide the world market along national borders and to forbid trade in patented goods from one nation to another. This Article demonstrates that the doctrines thwarting free trade in patented goods are protectionist remnants …
Regulatory And Judicial Implementations Of Patent Law Flexibilities, Sarah R. Wasserman Rajec
Regulatory And Judicial Implementations Of Patent Law Flexibilities, Sarah R. Wasserman Rajec
Faculty Publications
No abstract provided.
Operating Efficiently Post-Bilski By Ordering Patent Doctrine Decision-Making, Dennis D. Crouch, Robert P. Merges
Operating Efficiently Post-Bilski By Ordering Patent Doctrine Decision-Making, Dennis D. Crouch, Robert P. Merges
Faculty Publications
Now that the Supreme Court has decided Bilski v. Kappos, there is an enormous amount of speculation about the case’s impact on patent applicants, litigants, and other participants in the patent system. Most of the commentary is concerned with the holding in Bilski, how this holding will be applied by courts and the Patent Office, and ultimately, the effect of the holding on inventors, and those who hold and seek patents.
Introduction: The Law, Technology & The Arts Symposium: The Past, Present And Future Of The Federal Circuit, Craig Allen Nard
Introduction: The Law, Technology & The Arts Symposium: The Past, Present And Future Of The Federal Circuit, Craig Allen Nard
Faculty Publications
Introduction to The Law, Technology & the Arts Symposium: The Past, Present and Future of the Federal Circuit, Cleveland, Ohio.
In Defense Of Geographic Disparity, Craig Allen Nard
In Defense Of Geographic Disparity, Craig Allen Nard
Faculty Publications
A response to Margo A. Bagley, Patently Unconstitutional: The Geographical Limitation on Prior Art in a Small World, 87 Minn. L. Rev. 679 (2003).
The Festo Decision And The Return Of The Supreme Court To The Bar Of Patents, John F. Duffy
The Festo Decision And The Return Of The Supreme Court To The Bar Of Patents, John F. Duffy
Faculty Publications
No abstract provided.
Toward A Cautious Approach To Obeisance: The Role Of Scholarship In Patent Law Jurisprudence, Craig Allen Nard
Toward A Cautious Approach To Obeisance: The Role Of Scholarship In Patent Law Jurisprudence, Craig Allen Nard
Faculty Publications
This article explores the role of secondary authority in patent law jurisprudence. I reviewed every Federal Circuit published opinion from 1982 (the year of the court's creation) to 2000. I discuss the results of my empirical research and explore why scholarship has a place in the Federal Circuit's patent law jurisprudence. I ultimately urge the court to be cautiously more receptive to secondary authority when deciding patent cases.
Process Considerations In The Age Of Markman And Mantras, Craig Allen Nard
Process Considerations In The Age Of Markman And Mantras, Craig Allen Nard
Faculty Publications
This article asserts that although notions of uniformity and certainty have always been part of patent law parlance, since the Federal Circuit's decision in Markman v. Westview Instruments, Inc., these noble ends have achieved mantra status. In Markman, the Federal Circuit, in the name of uniformity and certainty, characterized claim interpretation as a question of law subject to de novo review, thus positioning itself as the arbiter of claim meaning. If the Federal Circuit is unwilling to exercise greater obeisance toward district court claim interpretations, this article argues that to achieve uniformity and certainty in the context of de novo …
A Theory Of Claim Interpretation, Craig Allen Nard
A Theory Of Claim Interpretation, Craig Allen Nard
Faculty Publications
This article explores the proper scope of judicial power in patent law by focusing on the Federal Circuit's theories of claim interpretation. A study of the court's claim interpretation jurisprudence reveals two schools of interpretation. I characterize these approaches as (1) hypertextualism, which is the predominant interpretative theory; and (2) pragmatic textualism, which is gradually asserting itself. The hypertextualist judge has an expansive view of judicial power, characterizing claim interpretation as a question of law subject to de novo review. This highly formalistic approach stresses textual fidelity and internal textual coherence, but eschews extrinsic evidence as an interpretive tool, portraying …
Certainty, Fence Building, And The Useful Arts, Craig Allen Nard
Certainty, Fence Building, And The Useful Arts, Craig Allen Nard
Faculty Publications
In "Certainty, Fence Building, and the Useful Arts," 74 Ind. L.J. 759-800 (1999), the author, based upon contract theory, economic theory, and an empirical survey of federal district court judges, proposes that the United States adopt a patent opposition proceeding. Whereas United States trademark law allows for the publication of and third-party opposition to the issuance of a federal trademark, American patent law, unlike European and Asian patent systems, allows for no such proceeding regarding the patentability of a claimed invention before issuance.
Legitimacy And The Useful Arts, Craig Allen Nard
Legitimacy And The Useful Arts, Craig Allen Nard
Faculty Publications
The fundamental question this Article addresses is who should be primarily responsible for making patent validity determinations: the courts5 or the Patent and Trademark Office (“PTO”)?6 Which entity *517 would best serve the constitutional goal of promoting the progress of the useful arts?
Deference, Defiance, And Useful Arts, Craig Allen Nard
Deference, Defiance, And Useful Arts, Craig Allen Nard
Faculty Publications
My objective in this Article is to demonstrate that the PTO's patentability determinations are questions of policy and, therefore, the Federal Circuit's standards of review, as applied to these determinations, are unsound. With respect to the Commissioner's statutory interpretations, I intend to demonstrate that the court's “traditional factors of statutory construction,” which are used in such a way as to avoid deferring to the PTO, result in irrational decisions, or at the very least, an alternative theory of interpretation no more convincing than that put forth by the PTO. My principle assertion, grounded in both doctrine and policy, is that …