Law Commons^™

Free Trade In Patented Goods: International Exhaustion For Patents, Sarah R. Wasserman Rajec

Sarah R. Wasserman Rajec

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

Sarah R. Wasserman Rajec

No abstract provided.

An Overview Of Patent Prosecution, Frederick W. Dingledy

Frederick W. Dingledy

No abstract provided.

Rethinking Patent Law In The Administrative State, Orin S. Kerr

Orin Kerr

This Article challenges the Supreme Court's recent holding that administrative law doctrines should apply to the patent system. The Article contends that the dynamics ofpatent law derive not from public law regulation, but rather from the private law doctrines of contract, property, and tort. Based on this insight, the Article argues that administrative law doctrines such as Chevron and the Administrative Procedure Act should not apply within patent law, and that such doctrines in fact pose a serious threat to the proper functioning of the patent system.

U.S. Patent Extraterritoriality Within The International Context, Amy L. Landers

Amy L. Landers

The Interconnections Between Entrepreneurship, Science, And The Patent System, Amy L. Landers

Amy L. Landers

Foreword, David Olson

David S. Olson

No abstract provided.

Private Value Determinations And The Potential Effect On The Future Of Research And Development, Amy L. Landers

Amy L. Landers

Although the promise of an emerging patent market is thought to provide future benefits to invention, innovation, and the public, this essay examines the possibility that the aggregate influence of this activity could instead destabilize patent values in a manner that mirrors the "bubble" phenomenon that occurred in certain markets in the past. To the extent that this occurs, this would destabilize the patent system and might have negative consequences for the future of investment in research, development and innovation.

Our Divided Patent System (With J. Allison & M. Lemley) (Forthcoming), David Schwartz

David L. Schwartz

No abstract provided.

A Generation Of Patent Litigation, Michael Risch

Michael Risch

This study compares twenty-five years of litigation and patents of the ten most litigious NPEs (as of 2009) with a random group of cases and patents in the same yearly proportions. All cases involving every patent was gathered, allowing the life cycle of each asserted patent to be studied. The data includes litigation data, patent data, reexaminations, and other relevant data. This paper considers outcomes and patent quality. A future paper will examine innovation and markets. Unsurprisingly, the data shows that the studied NPE patents were found invalid and noninfringed about twice as often as the comparable nonNPEs. But there …

Patentable Subject Matter As A Policy Lever, Amy L. Landers

Amy L. Landers

Patents are intended to be used as instruments to further policy. One potent policy driver to accomplish such goals is through the legal construction and application of the term “invention." Internationally, various legal authorities have recognized that this definition can be crafted in ways that are targeted to have real-world consequences. In the U.S., the open-ended framework of the Patent Act's section 101 invites judicial interpretation to effectuate the law's purposes. Ideally, these determinations should rest on articulated, transparent reasoning so that, under a common law system, those policies can serve as touchstones to ensure that the relevant precedents are …

The Anti-Patent: A Proposal For Startup Immunity, Amy L. Landers

Amy L. Landers

The controversy surrounding the current implementation of the patent system is well known. Some question whether the system has become entirely dysfunctional and disincentives innovation, particularly as the law operates within some industries. Moreover, early stage companies, particularly those just beginning to gain success, are particularly vulnerable targets for lawsuits. Notably, these same companies can be rich sources of important technological innovation.

Because the U.S. has always had a patent system, it is impossible to understand the intended and unintended consequences of eliminating this form of intellectual property protection even in a limited manner. As economist Fritz Machlup stated in …

Applying Patent-Eligible Subject Matter Restriction, Jonas Anderson

J. Jonas Anderson

Restoring The Fact/Law Distinction In Patent Claim Construction, Jonas Anderson

J. Jonas Anderson

Trolls Or Great Inventors: Case Studies Of Patent Assertion Entities, Ryan Holte

Prof. Ryan T. Holte

There has been much debate about the economic harms caused by patent infringement lawsuits filed by patent holders who do not make or sell products covered by their own patents—entities pejoratively referred to as “patent trolls.” This debate has thus far been largely theoretical or based on broad industry-wide data. The purpose of this article is to present a focused empirical report that has previously been lacking—detailed information regarding the inventors themselves, the patent assertion entities (PAEs) that represent them, and the stories behind their patents. The research for this article centers on two instructive case studies: (1) MercExchange, L.L.C., …

Global Issues In Intellectual Property Law, Amy Landers, Michael Mireles, John Cross, Peter Yu

Amy L. Landers

This book is designed to facilitate the introduction of international, transnational, and comparative law issues into a domestic Intellectual Property course. The book is very accessible for law students and their professors. The book can be assigned or recommended as optional reading to supplement a domestic-only course to advance the students' understanding of their own system.

The Trespass Fallacy In The "Software Patent" Debate, Ryan Holte

Prof. Ryan T. Holte

In The Trespass Fallacy in Patent Law, Professor Adam Mossoff details how patent law jurisprudence and scholarship is dominated by an indeterminacy critique or “trespass fallacy” in two respects. Professor Mossoff’s essay, however, only briefly mentions the now paramount contemporary issue surrounding the more-focused “software patent” debate. In this short essay, I briefly discuss Professor Mossoff’s trespass fallacy analysis as it relates to “software patents” and the Supreme Court’s October 2013 Term case Alice Corp. Pty. Ltd. v. CLS Bank Int’l.

The "Progress Clause": An Empirical Analysis Based On The Constitutional Foundation Of Patent Law, Lori Andrews

Lori B. Andrews

Functionality And Graphical User Interface Design Patents, Michael Risch

Michael Risch

Modern designers of graphical user interfaces, or GUIs, have obtained design patent protection for creative computer software displays, a realm previously limited to copyright. The difference in protection is important because design patents do not traditionally allow the same defenses - life fair use - associated with copyright. Apple's nearly billion dollar judgment against Samsung, which included such a GUI patent, brought this issue to the forefront.

This article answers three emerging questions:

1. Aren't GUIs something that should be protected by copyright only? Why should there be a patent? The answer is relatively simple: the law has, since 1870, …

Framing The Patent Troll Debate, Michael Risch

Michael Risch

The patent troll debate has reached a fevered pitch in the USA. This peer reviewed editorial seeks to frame the debate by pointing out the lack of clarity in defining patent trolls and their allegedly harmful actions. It then frames the debate by asking currently unanswered questions: Where do troll patents come from? What are the effects of troll assertions? Will policy changes improve the system?

Understanding The Realities Of Modern Patent Litigation, In Symposium, Steps Toward Evidence-Based Ip (With J. Allison & M. Lemley), David Schwartz

David L. Schwartz

No abstract provided.

Unpacking Patent Assertion Entities (With J. Kesan & C. Cotropia) (Forthcoming), David Schwartz

David L. Schwartz

No abstract provided.

On Mass Patent Aggregators: A Response To Mark A. Lemley & A. Douglas Melamed’S Missing The Forest For The Trolls, David Schwartz

David L. Schwartz

No abstract provided.

Licensing Acquired Patents, Michael Risch

Michael Risch

Patents have always been licensed. Patents have always been acquired. Patents have even been acquired for the purpose of licensing new entrants. In short, there have always been secondary markets. But licensing acquired patents is a fairly recent business model. To be sure, there have been some historical exceptions but, for the most part, historical licensing and secondary markets primarily involved inventors (and their companies) and producers of products and services. While some of the same costs and benefits might apply to licensing of non-acquired patents by individuals or producing companies, examining the acquisition model improves analytical rigor. This essay, …

Intellectual Property Policy, Matthew Rimmer

Matthew Rimmer

Standards Of Proof In Civil Litigation: An Experiment From Patent Law (With C. Seaman), David Schwartz

David L. Schwartz

Standards of proof are widely assumed to matter in litigation. They operate to allocate the risk of error between litigants, as well as to indicate the relative importance attached to the ultimate decision. But despite their perceived importance, there have been relatively few empirical studies testing jurors’ comprehension and application of standards of proof, particularly in civil litigation.

Patent law recently presented an opportunity to assess the potential impact of varying the standard of proof in civil cases. In Microsoft Corp. v. i4i Limited Partnership, the Supreme Court held that a patent’s presumption of validity can only be overcome by …

The Rise Of Contingent Fee Representation In Patent Litigation, David Schwartz

David L. Schwartz

No abstract provided.

Rules Versus Standards: Competing Notions Of Inconsistency Robustness In Patent Law, David S. Olson, Stefania Fusco

David S. Olson

This Article applies a new paradigm from the field of computer science—inconsistency robustness (IR)—in order to analyze the competing ways in which the Supreme Court and Federal Circuit craft patent law standards and rules. The IR paradigm is a shift from the previous paradigm of inconsistency elimination. The new IR paradigm recognizes that modern, complex information systems must perform notwithstanding persistent and continuous inconsistencies. The focus on IR encourages system designers to recognize the reality of persistent inconsistency when building robust systems that can perform reliably. Legal systems regularly process a great deal of complexity and inconsistency, and thus, by …

Patent Contingent Fee Litigation, David Schwartz

David L. Schwartz

No abstract provided.

Paving The Path To Accurately Predicting Legal Outcomes: A Comment On Professor Chien's Predicting Patent Litigation (With J. Kesan & T. Sichelman), David Schwartz

David L. Schwartz

No abstract provided.