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What’S So Special About Patent Law?, Michael Goodman
What’S So Special About Patent Law?, Michael Goodman
Fordham Intellectual Property, Media and Entertainment Law Journal
The widespread belief that patent law is special has shaped the development of patent law into one of the most specialized areas of the law today. The belief in patent law’s exceptionalism manifests itself as two related presumptions with respect to the judiciary: first, that generalist judges who do not have patent law expertise cannot effectively decide patent cases, and second, that judges can develop necessary expertise through repeated experience with patent cases. Congress showed that it acquiesced to both views when it created the Federal Circuit and the Patent Pilot Program. In recent years, however, the Supreme Court has …
The Riddle Of The Mysterious Patent Dance Wrapped In An Enigma: Is The Patent Dance Of The Bpcia Optional Or Mandatory?, Dov Hirsch
Fordham Intellectual Property, Media and Entertainment Law Journal
Recently, the nature of one of the aspects of the Biosimilar, Price, Competition, and Innovation Act of 2009 (“BPCIA”) has been called into question: Is the “patent dance,” the structured patent dispute resolution process of the BPCIA, mandatory or optional? A mandatory patent dance requires a biosimilar applicant to comply with all its requirements, while an optional patent dance allows the biosimilar applicant to opt out of the entire dance if it so chooses. This question is important because it has the potential to affect that delicate balance of the BPCIA. This Note focuses on some of the consequential implications …
Obviousness As Fact: The Issue Of Obviousness In Patent Law Should Be A Question Of Fact Reviewed With Appropriate Deference, Ted L. Field
Obviousness As Fact: The Issue Of Obviousness In Patent Law Should Be A Question Of Fact Reviewed With Appropriate Deference, Ted L. Field
Fordham Intellectual Property, Media and Entertainment Law Journal
One of the most common defenses that an accused infringer raises in a patent infringement lawsuit is that the patent claims at issue are invalid for obviousness. The question of obviousness is based on several factual determinations, and the U.S. Supreme Court and the U.S. Court of Appeals for the Federal Circuit should sensibly review these determinations with deference to the jury’s or trial court’s findings. But these courts instead treat the ultimate determination of obviousness as a question of law to be reviewed de novo. This Article challenges the correctness of this standard of review and argues that courts …