Law Commons^™

The Implementation Of Fda Determinations In Litigation - Why Do We Defer To The Pto But Not To The Fda?, William G. Childs

Faculty Scholarship

This Article examines the possible inequity of the treatment of licensees' rights in tort litigation in comparison to patent rights in patent litigation. In particular, this Article presents the presumptions afforded from issued patents as a valid model for the proper treatment of FDA approval in litigation. Presently, most academic discussion proposes either preclusion of tort claims or leaving the system more or less as it stands. This Article, on the other hand, proposes a middle ground.

This Article begins by examining the differences between the USPTO and the FDA. In particular, the quantity and quality of the review provided …

Zurko, Gartside, And Lee: How Might They Affect Patent Prosecution?, Thomas G. Field Jr

Law Faculty Scholarship

Interactions between the PTO and the courts are more complex than for most agencies. PTO decisions may be challenged not only directly but also collaterally. In the latter context, the Supreme Court has sometimes been critical of the lax standards applied when issuing patents.

While being upheld in collateral review is the ultimate issue of concern to patentees, patents must first be obtained. Thus, this paper focuses on direct challenges to PTO actions--and more specifically, on the review arising under 35 U.S.C. §§ 141-44 as addressed in Zurko, Gartside, and Lee.

Since the Supreme Court reversed the …

Obvious To Whom? Evaluating Inventions From The Perspective Of Phosita, Rebecca S. Eisenberg

Articles

In this Article, I consider the possibility of giving the USPTO input from currently active technological practitioners in evaluating the obviousness of claimed inventions. Such input could potentially serve three useful functions. First, it could improve the accuracy of USPTO decisionmaking by providing access to the perspective of actual practitioners as to the obviousness of inventions from the perspective of the hypothetical PHOSITA. Second, it could help the USPTO document the evidentiary basis for rejections that rest in part upon tacit knowledge within technological communities. Third, it could provide a quality control mechanism that would improve the credibility of USPTO …