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Full-Text Articles in Law
The Federal Circuit And The Patent Trial And Appeal Board, David O. Taylor
The Federal Circuit And The Patent Trial And Appeal Board, David O. Taylor
Faculty Journal Articles and Book Chapters
The U.S. Court of Appeals for the Federal Circuit holds a unique and powerful position in the patent system. It exercises exclusive jurisdiction over appeals in patent cases, which, short of Supreme Court intervention, empowers the court to set national patent law. But since passage of the America Invents Act, at least with respect to resolving often multimillion dollar disputes over patent validity, there is another, more powerful government institution: the Patent Trial and Appeal Board. Given its significant new power over disputes regarding patent validity, the Patent Trial and Appeal Board has been the subject of numerous disputes resolved …
Justice Breyer And Patent Eligibility, David O. Taylor
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.
Patent Eligibility And Investment, David O. Taylor
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 …
Amending Patent Eligibility, David O. Taylor
Amending Patent Eligibility, David O. Taylor
Faculty Journal Articles and Book Chapters
The Supreme Court’s recent treatment of the law of patent eligibility has introduced an era of confusion, lack of administrability, and, ultimately, risk of under-investment in research and development. As a result, patent law — and in particular the law governing patent eligibility — is in a state of crisis. In this Article I show why, despite this crisis, it is highly unlikely that the Supreme Court will correct itself and solve these problems. I therefore proceed to consider how Congress might — consistent with its constitutional authority — correct these problems through appropriate legislation. I identify principles that should …
Confusing Patent Eligibility, David O. Taylor
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 …
Legislative Responses To Patent Assertion Entities, David O. Taylor
Legislative Responses To Patent Assertion Entities, David O. Taylor
Faculty Journal Articles and Book Chapters
While the existence of patent assertion entities is not new, in recent years they have proliferated, spawning debate concerning their impact on the patent system and, more broadly, on technological innovation. Despite the fear that they instill in their targets — or perhaps because of it — patent assertion entities arguably serve a beneficial purpose in the patent system. Theoretically they should be able to help individual inventors and small businesses, in particular, obtain a return on their investment in research and development. To the extent patent assertion entities assert patent claims that should be held invalid, not infringed, or …
Formalism And Antiformalism In Patent Law Adjudication: Rules And Standards, David O. Taylor
Formalism And Antiformalism In Patent Law Adjudication: Rules And Standards, David O. Taylor
Faculty Journal Articles and Book Chapters
The United States Court of Appeals for the Federal Circuit exists at least in part to achieve goals related to patent law that the Supreme Court singularly failed to achieve. Since the Federal Circuit’s inception just over thirty years ago, however, critics have shifted blame for problems with the patent system from the Supreme Court to the Federal Circuit. A common criticism that has gained strength is that the Federal Circuit engages in overly formalistic rule-based adjudication in patent cases. One aspect of this criticism is that the Federal Circuit too often creates rules to govern patent law. In this …