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Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Michael J. Meurer, Craig Allen Nard
Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Michael J. Meurer, Craig Allen Nard
Faculty Scholarship
The doctrine of equivalents (DOE) allows courts to expand the scope of patent rights granted by the Patent Office. The doctrine has been justified on fairness grounds, but it lacks a convincing economic justification. The standard economic justification holds that certain frictions block patent applicants from literally claiming appropriately broad rights, and thus, the DOE is available at trial to expand patent scope and overcome these frictions. The friction theory suffers from three main weaknesses. First, the theory is implausible on empirical grounds. Frictions such as limits of language, mistake, and unforeseeability are missing from the leading cases. Second, there …
Random Numbers, Chaos Theory, And Cogitation: A Search For The Minimal Creativity Standard In Copyright Law, Ralph D. Clifford
Random Numbers, Chaos Theory, And Cogitation: A Search For The Minimal Creativity Standard In Copyright Law, Ralph D. Clifford
Faculty Publications
This article explores the second type of expressive work, those where there is a question if the author’s contribution is qualitatively sufficient, to determine how much creativity and of what type is required to sustain a copyright. Initially, the historic standards of creativity use before Fiest was decided in 1991 will be presented. Then, after a brief discussion of Fiest, the scientific basis of creativity will be explored. Next, the confusion regarding creativity that exists in the lower courts will serve to expose the source of misapplication of the law – a disconnect between how courts perceive creativity and …
Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Craig Allen Nard
Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Craig Allen Nard
Faculty Publications
The doctrine of equivalents (DOE) allows courts to expand the scope of patent rights granted by the Patent Office. The doctrine has been justified on fairness grounds, but it lacks a convincing economic justification. The standard economic justification holds that certain frictions block patent applicants from literally claiming appropriately broad rights, and thus, the DOE is available at trial to expand patent scope and overcome these frictions. The friction theory suffers from three main weaknesses. First, the theory is implausible on empirical grounds. Frictions such as limits of language, mistake, and unforeseeability are missing from the leading cases. Second, there …