Intellectual Property Law Commons^™

Patent policy is typically thought to be the product of the Patent and Trademark Office, the Court of Appeals for the Federal Circuit, and, in some instances, the Supreme Court. This simple topography, however, understates the extent to which outsiders can shape the patent regime. Indeed, a variety of administrative actors influence patent policy through the exercise of their regulatory authority and administrative power.

This Article offers a novel description of the ways in which nonpatent agencies intervene into patent policy. In particular, it examines agency responses to conflicts between patent and other regulatory aims, uncovering a relative preference for …

In 2010, the Federal Circuit issued ResQNet.com, Inc. v. Lansa, Inc., a landmark decision holding that settlement-related evidence can be compelling proof of damages in subsequent litigation. The effects of ResQNet were immediately evident. Some practitioners argued that ResQNet granted unlimited permission to use prior patent settlement agreements and related negotiations as evidence of damages for patent infringement. Some courts agreed, while others decided that the Federal Circuit’s ruling had no effect on Federal Rule of Evidence 408’s prohibition on the use at trial of settlement-related evidence to prove damages. Simply put, ResQNet wrought havoc on the standards for the …

The federal courts have struggled to define the role that prior third-party settlements should play in determining damages for patent infringement. Although the use of such evidence is governed by the Federal Rules of Evidence, appellate and district courts have failed to reach consensus regarding the appropriate application of these rules. Most recently, in ResQNet v. Lansa, the Federal Circuit noted that the most reliable evidence of damages for infringement may be a license that emerges from a previous settlement. This decision prompted a flurry of new rulings by district courts regarding the admissibility and discoverability of evidence of previous …

In 1999, the Supreme Court invoked state sovereign immunity to strike down provisions in the patent and trademark laws purporting to hold states liable for the infringement of these intellectual properties. These decisions ignited a series of criticisms, including allegations that sovereign immunity gives states an unfair advantage in the exercise of state-owned patent rights.

In particular, critics alleged two unfair advantages to state patentees. First, they alleged that states would favorably manipulate litigation. Second, they alleged that states would use their immunity from challenge to obtain broad patents or force private parties into licensing arrangements. An empirical study focusing …