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The Hidden Value Of Abandoned Applications To The Patent System, Christopher A. Cotropia, David L. Schwartz
The Hidden Value Of Abandoned Applications To The Patent System, Christopher A. Cotropia, David L. Schwartz
Law Faculty Publications
Some inventors abandon their patent applications without ever receiving a patent. Although patent scholars view such abandoned patent applications as essentially worthless, we question that conventional wisdom. Conducting an empirical analysis of a recently released patent application dataset in light of a 1999 change that requires publication of most abandoned applications, we find that the United States Patent and Trademark Office (USPTO) often uses abandoned applications as “prior art” when examining future patent applications. Abandoned applications thus generate an “administrative disclosure” that prevents the issuance of broader patent rights to later applicants. By narrowing the scope of new patents, abandoned …
Predictability And Nonobviousness In Patent Law After Ksr, Christopher A. Cotropia
Predictability And Nonobviousness In Patent Law After Ksr, Christopher A. Cotropia
Law Faculty Publications
In KSR International Co. v. Teleflex, Inc., the Supreme Court addressed the doctrine of nonobviousness, the ultimate question of patentability, for the first time in thirty years. In mandating a flexible approach to deciding nonobviousness, the KSR opinion introduced two predictability standards for determining nonobviousness. The Court described predictability of use (hereinafter termed "Type I predictability" )-whether the inventor used the prior art in a predictable manner to create the invention-and predictability of the result (hereinafter termed "Type II predictability")-whether the invention produced a predictable result-both as a means for proving obviousness. Although Type I predictability is easily explained as …
Patent Applications And The Performance Of The U.S. Patent And Trademark Office, Christopher A. Cotropia
Patent Applications And The Performance Of The U.S. Patent And Trademark Office, Christopher A. Cotropia
Law Faculty Publications
This Article reports data and analyses to facilitate answering these questions. The reported data was obtained from two sources. The first is the Workload Tables from the USPTO annual reports, called the "USPTO Performance and Accountability Reports," provided to the President, Congress, and public.' The second is data received from the USPTO in response to Freedom of Information Act ("FOIA") requests.3 From these two data sources, information such as the number of applications filed per year, the type of applications being filed and prosecuted, the pendency of these applications, and their disposition, including the number of them issued as patents, …
The Unreasonableness Of The Patent Office's 'Broadest Reasonable Interpretation' Standard, Christopher A. Cotropia
The Unreasonableness Of The Patent Office's 'Broadest Reasonable Interpretation' Standard, Christopher A. Cotropia
Law Faculty Publications
This article does what is long overdue: it fully explores the validity of the BRI standard. The previously articulated rationales behind the BRI standard are severely lacking. Not only does the BRI standard fail to provide the advantages touted by the courts that created the standard, the standard is contrary to both the patent statutes and the concept of a unitary patent system. It allows examiners to avoid difficult claim interpretation issues; it leads to improper and uncorrectable denials of patent protection; and it is incurably ambiguous. Given that the BRI standard is severely lacking, the courts and the USPTO …
Modernizing Patent Law's Inequitable Conduct Doctrine, Christopher A. Cotropia
Modernizing Patent Law's Inequitable Conduct Doctrine, Christopher A. Cotropia
Law Faculty Publications
This Article's main finding is that the inequitable conduct doctrine has the ability to improve patent quality as long as the inherent tendency to overcomply with the doctrine by overloading the USPTO with information is kept in check. The Article reaches this conclusion by proceeding in five parts. Part II describes the current thinking on the inequitable conduct doctrine, with particular focus on the major critiques of the doctrine and proposed legislative and administrative responses. Part III of the Article begins the construction of a fundamental, conceptual framework for the doctrine by explaining how it impacts both patent quality and …
Nonobviousness And The Federal Circuit: An Empirical Analysis Of Recent Case Law, Christopher A. Cotropia
Nonobviousness And The Federal Circuit: An Empirical Analysis Of Recent Case Law, Christopher A. Cotropia
Law Faculty Publications
This Article provides such an empirical study. The study examines all Federal Circuit cases over a four-year period considering the nonobviousness of a patent claim. Appeals from both patent infringement cases before district courts and pending patent applications and interferences before the United States Patent and Trademark Office (USPTO) are investigated. The study looks at the data in two levels of detail.