Law Commons^™

The "Evergreening" Metaphor In Intellectual Property Scholarship, Erika Lietzan

Akron Law Review

This article is a plea for changes in the scholarly dialogue about “evergreening” by drug companies. Allegations that drug companies engage in “evergreening” are pervasive in legal scholarship, economic scholarship, medical and health policy scholarship, and policy writing, and they have prompted significant policymaking proposals. This Article was motivated by concern that the metaphor has not been fully explained and that policymaking in response might therefore be premature. It canvasses and assesses the scholarly literature—more than 300 articles—discussing or mentioning “evergreening.” It catalogues the definitions, the examples, and the empirical studies. Scholars use the term when describing certain actions taken …

Managing Inequitable Conduct By Legislation And/Or Regulation, Alan J. Kasper

Akron Intellectual Property Journal

The defense of “inequitable conduct” in patent litigation is rooted in equity and derives, not from any legislative formulation or regulatory construct, but instead from the principles of “unclean hands.” In Precision Instrument Mfg. Co. v. Automotive Maintenance Mach. Co., the United States Supreme Court dismissed a case brought by a patent owner because the patent in suit and certain related contracts were “perjury tainted” and “inequitable conduct impregnated Automotive’s entire cause of action.” The Precision Instrument case and the only two other earlier decisions by the Supreme Court to consider an unclean hands defense, “involved overt fraud, …

Festo Corp. V. Shoketsu Kinzoku Kogyo Kabushiki Co.: A Fog Between The Bars, Mark R. Hull

Akron Law Review

This Note examines the interplay between the judicially-created patent law rules of prosecution history estoppel and the doctrine of equivalents. Part II explores the development of these rules as well as their effects and underlying goals. Part II also discusses landmark Supreme Court decisions regarding the doctrine of equivalents and prosecution history estoppel and how the Federal Circuit has applied these rules. Part III discusses the United States Supreme Court decision in Festo Corporation v. Shoketsu Kinzoku Kogyo Kabushiki Co.

Finally, Part IV analyzes the Festo decision, explains that the decision will likely increase the cost and complexity of patent …