Law Commons^™

Justice Breyer And Patent Eligibility, David O. Taylor

Faculty Journal Articles and Book Chapters

Justice Breyer leaves the Supreme Court having left a significant mark on patent eligibility law. In Mayo Collaborative Services v. Prometheus Laboratories, he eliminated the ability to obtain patents on many useful applications of new (and even breakthrough) discoveries. The author discusses how Justice Breyer’s test for patent eligibility both contradicts the historical approach and has had pernicious impact on the patent system and investment in development of technology, including, and in particular, medical technologies.

Immoral Patents, David O. Taylor

Faculty Journal Articles and Book Chapters

Only to a limited extent have U.S. legislators recognized the moral and ethical implications of the patentability of controversial technologies. I find this absence of legislative debate curious for several reasons, including the fact that for decades there has been an intense public debate over the government’s involvement in, and regulation of, research and development related to biotechnology, including reproduction technologies, and particularly the use and destruction of embryonic stem cells, embryos, and fetuses—areas of considerable moral and ethical concern. Nor has there been debate regarding patentability with respect to other areas of concern, such as technologies that damage the …

Patent Eligibility And Investment, David O. Taylor

Faculty Journal Articles and Book Chapters

Have the Supreme Court’s recent patent eligibility cases changed the behavior of venture capital and private equity investment firms, and if so how? This Article provides empirical data about investors’ answers to those important questions. Analyzing responses to a survey of 475 investors at firms investing in various industries and at various stages of funding, this Article explores how the Court’s recent cases have influenced these firms’ decisions to invest in companies developing technology. The survey results reveal investors’ overwhelming belief that patent eligibility is an important consideration in investment decisionmaking, and that reduced patent eligibility makes it less likely …

Confusing Patent Eligibility, David O. Taylor

Faculty Journal Articles and Book Chapters

Patent law — and in particular the law governing patent eligibility — is in a state of crisis. This crisis is one of profound confusion. Confusion exists because the current approach to determining patent eligibility confuses the relevant policies underlying numerous discrete patent law doctrines, and because the current approach lacks administrability. Ironically, the result of all this confusion is seemingly clear: the result seems to be that, when challenged, patent applications and issued patents probably do not satisfy the requirement of eligibility. At least that is the perception. A resulting concern, therefore, is that the current environment substantially reduces …

Only A Pawn In The Game: Rethinking Induced Patent Infringement, W. Keith Robinson

Faculty Journal Articles and Book Chapters

A party that causes another to infringe a patent may be liable for induced infringement. Recently, the Supreme Court and the Federal Circuit have interpreted the inducement statute in a way that may be problematic. For example, in a suit for induced patent infringement a plaintiff must show that an accused party had specific intent to cause infringement. The defendant can rebut allegations of induced infringement by showing that he had a good faith belief that he did not infringe the patent. However, a defendant’s good faith belief that the patent is invalid is no longer a defense to inducement. …

Awarding Attorney Fees And Deterring 'Patent Trolls', W. Keith Robinson

Faculty Journal Articles and Book Chapters

A court may award attorney fees to a prevailing party in a patent trial under exceptional circumstances. Since 2005, courts had applied a rigid formula to determine whether a case was exceptional. In the summer of 2014, the Supreme Court rejected this rigid test. Instead, the Court held that an exceptional case is “simply one that stands out from others.” Finding a case exceptional, the Court said, was at the discretion of the district court and only reviewable on appeal for an abuse of discretion.

A little over a year later, one interesting question is: how do district courts now …

Patent Law Challenges For The Internet Of Things, W. Keith Robinson

Faculty Journal Articles and Book Chapters

In the near future, emerging technologies will allow billions of everyday devices to be connected via the Internet. This increasingly popular phenomenon is referred to as the Internet of Things (“IoT”). The IoT is broadly defined as technology that allows everyday devices to (1) become “smart” and (2) communicate with other smart devices. Estimates indicate that the market for smart devices, such as wearables, will grow to $70 billion dollars in the next ten years. Like many other emerging technologies, the entrepreneurs and companies developing these applications will seek patent protection for their inventions. In turn, the current U.S. patent …

Protecting American Innovators By Combating The Decline Of Patents Granted To Small Entities, W. Keith Robinson

Faculty Journal Articles and Book Chapters

The new patent laws and recent economic trends indicate that there is a difficult time ahead for small entities. American entrepreneurs and small businesses have created several of the major technological innovations in the past forty years. However, statistics indicate that patents granted to small entities have declined. In the wake of this trend, the U.S. Patent system has undergone significant changes. Currently, the United States Patent and Trademark Office (“USPTO”) is in the process of implementing the policies and procedures outlined in its five-year strategic plan. Further, the Leahy-Smith America Invents Act (“AIA”), the largest patent reform law since …