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Full-Text Articles in Law

Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme Nov 2018

Will Delaware Be Different? An Empirical Study Of Tc Heartland And The Shift To Defendant Choice Of Venue, Ofer Eldar, Neel U. Sukhatme

Georgetown Law Faculty Publications and Other Works

Why do some venues evolve into litigation havens while others do not? Venues might compete for litigation for various reasons, like enhancing their judges’ prestige and increasing revenues for the local bar. This competition is framed by the party that chooses the venue. Whether plaintiffs or defendants primarily choose venue is crucial because, we argue, the two scenarios are not symmetrical.

The Supreme Court’s recent decision in TC Heartland LLC v. Kraft Foods LLC illustrates this dynamic. There, the Court effectively shifted venue choice in many patent infringement cases from plaintiffs to corporate defendants. We use TC Heartland to ...


The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Apr 2015

The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship at Penn Law

In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.

This paper is an effort to assist courts ...


Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2014

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship at Penn Law

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.

As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply ...


Against Settlement Of (Some) Patent Cases, Megan M. La Belle Jan 2014

Against Settlement Of (Some) Patent Cases, Megan M. La Belle

Scholarly Articles and Other Contributions

For decades now, there has been a pronounced trend away from adjudication and toward settlement in civil litigation. This settlement phenomenon has spawned a vast critical literature beginning with Owen Fiss’s seminal work, Against Settlement. Fiss opposes settlement because it achieves peace rather than justice, and because settlements often are coerced due to power and resource imbalances between the parties. Other critics have questioned the role that courts play (or ought to play) in settlement proceedings, and have argued that the secondary effects of settlement – especially the lack of decisional law – are damaging to our judicial system. Still, despite ...


Machine Learning And Law, Harry Surden Jan 2014

Machine Learning And Law, Harry Surden

Articles

This Article explores the application of machine learning techniques within the practice of law. Broadly speaking “machine learning” refers to computer algorithms that have the ability to “learn” or improve in performance over time on some task. In general, machine learning algorithms are designed to detect patterns in data and then apply these patterns going forward to new data in order to automate particular tasks. Outside of law, machine learning techniques have been successfully applied to automate tasks that were once thought to necessitate human intelligence — for example language translation, fraud-detection, driving automobiles, facial recognition, and data-mining. If performing well ...


Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2013

Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Faculty Scholarship at Penn Law

In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”

This article is an effort to help ...


Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman Apr 2013

Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman

Scholarly Articles

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 ...


Patent Law As Public Law, Megan M. La Belle Jan 2012

Patent Law As Public Law, Megan M. La Belle

Scholarly Articles and Other Contributions

Historically, patent litigation has been viewed and treated primarily as private law litigation, as opposed to public law litigation. This paradigm has begun to shift, however, as various stakeholders have come to acknowledge the profound impact that the patent system – and particularly invalid patents – have on the public at large. Yet, in order for a public law regime to succeed, there must be a host of enforcement mechanisms available, including the opportunity for privately-initiated litigation.

Public interest organizations have played a prominent role in the enforcement of certain public rights, such as free speech, equal protection, and environmental laws. While ...


Gat, Solvay, And The Centralization Of Patent Litigation In Europe, Marketa Trimble Jan 2012

Gat, Solvay, And The Centralization Of Patent Litigation In Europe, Marketa Trimble

Scholarly Works

No abstract provided.


Whose Rules Rule? Federal Circuit Review Of Divergent Uspto And District Court Decisions, Lisa Dolak Feb 2011

Whose Rules Rule? Federal Circuit Review Of Divergent Uspto And District Court Decisions, Lisa Dolak

College of Law - Faculty Scholarship

The potential utility of reexamination in the context of patent litigation has caught the attention of litigants, commentators, and the courts. However, concurrent litigation and reexamination proceedings proceed independently. Thus, in any given situation involving such proceedings, there is the possibility that the Federal Circuit will encounter issues in appeals from determinations of the district court and the U.S. Patent and Trademark Office relating to the scope or validity of the same patent claims, which issues have traveled to the court on separate tracks. And, because the courts and the USPTO approach claim construction and validity determinations differently, they ...


Standing To Sue In The Myriad Genetics Case, Megan M. La Belle Jan 2011

Standing To Sue In The Myriad Genetics Case, Megan M. La Belle

Scholarly Articles and Other Contributions

In recent years, the topic of gene patents has generated significant debate among medical researchers, biotechnology companies, academics, policymakers, and patent lawyers. The controversy implicates a wide range of legal and policy questions, including whether human genes should be patentable, and whether such patents stimulate or stifle innovation. In Association for Molecular Pathology v. Myriad Genetics, a high-profile case recently before the United States Court of Appeals for the Federal Circuit, a divided panel of the court addressed these questions. Before reaching the merits of the case, however, the court had to decide whether the plaintiffs had standing to sue ...


Lawyers Acting Badly, Or Not? Misconduct In Ip Litigation: Recent Examples And The Questions They Raise, Lisa Dolak Jun 2010

Lawyers Acting Badly, Or Not? Misconduct In Ip Litigation: Recent Examples And The Questions They Raise, Lisa Dolak

College of Law - Faculty Scholarship

Misconduct in civil litigation is not a new phenomenon. Nor is it confined to particular types of cases. Because of their characteristic intensity. however, intellectual property cases may be more likely to inspire bad behavior than other types of cases. The associated pressures seem, on occasion, to lead litigants and trial lawyers to succumb to the temptation to step outside the bounds of vigorous advocacy.

Trial and appellate judges in a number of recent IP cases have wrestled with the issue of whether certain litigation tactics crossed the line between advocacy and abuse. For example, trial judges have recently rebuked ...


Is Novelty Obsolete? Chronicling The Irrelevance Of The Invention Date In U.S. Patent Law, Dennis D. Crouch Oct 2009

Is Novelty Obsolete? Chronicling The Irrelevance Of The Invention Date In U.S. Patent Law, Dennis D. Crouch

Faculty Publications

This paper presents a normative study of patent applicant use of invention-date rights during ex parte prosecution.


Peer To Patent: Collective Intelligence And Intellectual Property Reform, Beth Simone Noveck Jan 2006

Peer To Patent: Collective Intelligence And Intellectual Property Reform, Beth Simone Noveck

Articles & Chapters

No abstract provided.


Anticompetitive Settlement Of Intellectual Property Disputes, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley Jan 2003

Anticompetitive Settlement Of Intellectual Property Disputes, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

Faculty Scholarship at Penn Law

The overwhelming majority of intellectual property lawsuits settle before trial. These settlements involve agreements between the patentee and the accused infringer, parties who are often competitors before the lawsuit. Because these competitors may agree to stop competing, to regulate the price each charges, and to exchange information about products and prices, settlements of intellectual property disputes naturally raise antitrust concerns. In this paper, we suggest a way to reconcile the interests of intellectual property law and antitrust law in evaluating intellectual property settlements. In Part I, we provide background on the issue. Part II argues that in most cases courts ...


Controlling Opportunistic And Anti-Competitive Intellectual Property Litigation, Michael Meurer Jan 2003

Controlling Opportunistic And Anti-Competitive Intellectual Property Litigation, Michael Meurer

Faculty Scholarship

It is useful to think of intellectual property (IP) law both as a system of property rights that promotes the production of valuable information and as a system of government regulation that unintentionally promotes socially harmful rent-seeking. This Article analyzes methods of controlling rent-seeking costs associated with opportunistic and anti-competitive IP lawsuits. My thinking is guided to some extent by the analysis of procedural measures for controlling frivolous litigation, and analysis of antitrust reforms designed to control strategic abuse of antitrust law. These analogies lead me to focus on pre-trial and post-trial control measures that reduce the credibility of weak ...


Anticompetitive Settlement Of Intellectual Property Disputes, Mark D. Janis, Herbert J. Hovenkamp, Mark A. Lemley Jan 2003

Anticompetitive Settlement Of Intellectual Property Disputes, Mark D. Janis, Herbert J. Hovenkamp, Mark A. Lemley

Articles by Maurer Faculty

No abstract provided.


Declaratory Judgments - Germany, Edwin Borchard Jan 1933

Declaratory Judgments - Germany, Edwin Borchard

Faculty Scholarship Series

Other codes and statutes also provide for declaratory judgments. The Code of Criminal Procedure provides that, when the question as to whether an act is punishable depends upon the determination of a legal relationship, this issue shall be decided by the criminal court. The law of noncontentious jurisdiction provides that the Court of Registration (Registergericht) may postpone an order of registration which depends upon the determination of a disputed legal relationship until that dispute has been decided by declaration. Judgments upon disputed claims in bankruptcy and in execution proceedings are declaratory. By the law of associations, a member may sue ...