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Articles 31 - 60 of 84
Full-Text Articles in Law
Addressing Access To Medicine: The Influence Of Competing Patent Perspectives, Cynthia M. Ho
Addressing Access To Medicine: The Influence Of Competing Patent Perspectives, Cynthia M. Ho
Cynthia M Ho
Promoting access to affordable medicine for poor countries is considered important by a wide range of actors, including not only rich and poor countries, but also public health advocates, patent owners, and scholars. However, promoting access has been elusive. Public health advocates argue that access to medicine is increasingly difficult due to changes in domestic and international laws that limit access to unpatented and low-cost generic drugs by expanding the scope of patent rights. Patent owners and some countries deny these claims while simultaneously advocating for more expansive patent rights as necessary to promote innovation and development. This article addresses …
Patently Obvious: Why The District Court's Ruling In Association For Molecular Pathology V. Uspto Is Incomplete, Kristin Wall
Patently Obvious: Why The District Court's Ruling In Association For Molecular Pathology V. Uspto Is Incomplete, Kristin Wall
Kristin Wall
In March of 2010, the United States Court of Appeals for the Southern District of New York invalidated Myriad Genetics’ patents on the BRCA1/2 genes, which predict susceptibility to breast and ovarian cancer. Prior to this decision, the USPTO and the legal system at large accepted patents relating to human genes as patentable subject matter. In opposition to this standard, the District Court found that human DNA sequences are inherently products of nature and thus fail under 35 U.S.C. § 101.
The Court should not have stopped there, however. The Intellectual Property Clause of the U.S. Constitution creates a standard …
Brief Of Amicus Curiae In Support Of Affirmance, Ron D. Katznelson
Brief Of Amicus Curiae In Support Of Affirmance, Ron D. Katznelson
Ron D. Katznelson
No abstract provided.
Warranting Rightful Claims, Karen E. Sandrik
Warranting Rightful Claims, Karen E. Sandrik
Karen E. Sandrik
Damage awards for patent infringement have sky-rocketed and sparked significant debate in recent years. A part of this patent damage debate focuses on non-practicing entities, or so-called “patent trolls.” A patent troll is a patent owner that demands a royalty based on patented technology, yet does not actually make use of the technology to provide an end product or service. Patent trolls are known for their aggressive and opportunistic behavior. Their strategy is simple: create nuisance and inflict fear. Often, patent trolls employ this strategy against the buyers of goods that use the patented technology. Increasingly, those buyers are availing …
The Patent System And Climate Change, Joshua Sarnoff
The Patent System And Climate Change, Joshua Sarnoff
College of Law Faculty
The amount of greenhouse gas emissions and consequent climate changes and social responses will depend substantially upon the rapid development and widespread dissemination of a wide variety of new mitigation and adaptation technologies. The international approach adopted by the UN Framework Convention on Climate Change in Cancun will focus the worldwide innovation system more closely on private funding and markets, and thus on the acquisition of patents at the front end of the coming innovation pipeline. The choice to rely on private markets and patents is highly debatable. But it is certain to create substantial tensions for the patent system …
Closing One Loophole And Opening Another: Why Section 271(F) Patent Infringement Should Apply To Method Patents After Cardiac Pacemakers, Michael Silhasek
Closing One Loophole And Opening Another: Why Section 271(F) Patent Infringement Should Apply To Method Patents After Cardiac Pacemakers, Michael Silhasek
San Diego Law Review
This Comment will address the applicability of § 271(f) to method patents compared with other patented inventions-machines, manufactures, and compositions of matter. Part II will briefly discuss the primary purpose of the infringement statute, which is to encourage inventive action by granting rights to a patent holder. Part III will discuss the history of § 271(f) and the section's applicability to process patents. The Federal Circuit questioned the section's applicability to method patents, then affirmed it, then questioned it again, and then, most recently, rejected it. Part IV will examine other foreign activity that could lead to domestic infringement. Part …
Whose Rules Rule? Federal Circuit Review Of Divergent Uspto And District Court Decisions, Lisa Dolak
Whose Rules Rule? Federal Circuit Review Of Divergent Uspto And District Court Decisions, Lisa Dolak
College of Law - Faculty Scholarship
The potential utility of reexamination in the context of patent litigation has caught the attention of litigants, commentators, and the courts. However, concurrent litigation and reexamination proceedings proceed independently. Thus, in any given situation involving such proceedings, there is the possibility that the Federal Circuit will encounter issues in appeals from determinations of the district court and the U.S. Patent and Trademark Office relating to the scope or validity of the same patent claims, which issues have traveled to the court on separate tracks. And, because the courts and the USPTO approach claim construction and validity determinations differently, they can …
Patent Eligible Medical And Biotechnology Inventions After Bilski, Prometheus, And Myriad, Joshua Sarnoff
Patent Eligible Medical And Biotechnology Inventions After Bilski, Prometheus, And Myriad, Joshua Sarnoff
College of Law Faculty
In Bilski v. Kappos, the U.S. Supreme Court continued to require that patentable subject matter eligibility determinations under Section 101 be made by reference to three historic, categorical exclusions, for scientific principles, natural phenomena, and abstract ideas. This excluded subject matter must be treated as if already known even when newly discovered by the applicant. Unlike in other jurisdictions, the excluded subject matter thus cannot contribute creativity to the claimed inventions, either for eligibility or for patentability evaluations. The Federal Circuit has reluctantly applied eligibility doctrine after Bilski, holding in Prometheus v. Mayo that claims to treatment methods applying the …
Patent Eligible Inventions After Bilski: History And Theory, Joshua Sarnoff
Patent Eligible Inventions After Bilski: History And Theory, Joshua Sarnoff
College of Law Faculty
The U.S. Supreme Court has continued to require that patentable subject matter eligibility determinations under Section 101 be made by reference to three historic, categorical exclusions, for scientific principles, natural phenomena, and abstract ideas, which must be treated as if already known even when newly discovered by the applicant. Various thoughtful scholars have alternatively urged that these exclusions from the patent system should be viewed restrictively or that eligibility decisions should be avoided. But these scholars underappreciate the benefits of categorical exclusions and particularly of treating them as if they were already known prior art, and in any event the …
Catalyzing Technology Development Through University Research, Jorge Contreras, Charles R. Mcmanis
Catalyzing Technology Development Through University Research, Jorge Contreras, Charles R. Mcmanis
Working Papers
Research universities have traditionally been catalysts for technological innovation, particularly in new and emerging industries. Against this backdrop, it is not surprising that some of the most promising new technologies relating to climate change are being developed at research universities. In this chapter, we first summarize several modes of university technology development and licensing. Next we describe the evolution of university technology commercialization and the Bayh-Dole Act of 198'8 which is widely credited with establishing the intellectual property structure of current university licensing and technology transfer. We then discuss some important legal and intellectual property considerations relevant to the development, …
One For All: The Problem Of Uniformity Cost In Intellectual Property Law, Michael W. Carroll
One For All: The Problem Of Uniformity Cost In Intellectual Property Law, Michael W. Carroll
Michael W. Carroll
Intellectual property law protects the owner of each patented invention or copyrighted work of authorship with a largely uniform set of exclusive rights. In the modern context, it is clear that innovators' needs for intellectual property protection vary substantially across industries and among types of innovation. Applying a socially costly, uniform solution to problems of differing magnitudes means that the law necessarily imposes uniformity cost by underprotecting those who invest in certain costly innovations and overprotecting those with low innovation costs or access to alternative appropriability mechanisms. This Article argues that reducing uniformity cost is the central problem for intellectual …
Reverse Settlements As Patent Invalidity Signals, Gregory Dolin
Reverse Settlements As Patent Invalidity Signals, Gregory Dolin
All Faculty Scholarship
Over the last decade a new type of settlements, commonly referred to as “reversed payment settlements” or simply “reverse settlements,” emerged in litigation over patents covering pharmaceutical products. What differentiates these new settlements from their traditional counterparts is that whereas traditionally, the alleged trespasser on someone else's rights pays the rights-holder to settle the litigation, in these new settlements it is the rights holder that pays the alleged trespasser. These settlements are a direct consequence of the various incentives provided by the Hatch-Waxman Act - an Act designed to increase competition between brand name and generic manufactures of pharmaceutical products. …
The Creativity Effect (With C. Sprigman), Christopher J. Buccafusco
The Creativity Effect (With C. Sprigman), Christopher J. Buccafusco
All Faculty Scholarship
No abstract provided.
Food And Drug Law As Intellectual Property Law: Historical Reflections, Kara Swanson
Food And Drug Law As Intellectual Property Law: Historical Reflections, Kara Swanson
Kara W. Swanson
No abstract provided.
The Creativity Effect (With C. Sprigman), Christopher J. Buccafusco
The Creativity Effect (With C. Sprigman), Christopher J. Buccafusco
Christopher J. Buccafusco
No abstract provided.
Warranting Rightful Claims, Karen E. Sandrik
Warranting Rightful Claims, Karen E. Sandrik
Karen E. Sandrik
Damage awards for patent infringement have sky-rocketed and sparked significant debate in recent years. A part of this patent damages debate focuses on non-practicing entities, or so-called “patent trolls.” A patent troll is a patent owner that demands a royalty based on patented technology, yet does not actually make use of the technology to provide an end product or service. Patent trolls are known for their aggressive and opportunistic behavior. Their strategy is simple: create nuisance and inflict fear. Increasingly, buyers of goods using patented technology are availing themselves of the “warranty against infringement” (“WAI”) provided by the Uniform Commercial …
28 U.S.C. § 1498(A) And The Unconstitutional Taking Of Patents, Joshua I. Miller
28 U.S.C. § 1498(A) And The Unconstitutional Taking Of Patents, Joshua I. Miller
Joshua I. Miller
Eminent domain requires a showing of two elements: a property right; and a proper venue to bring suit against the government. 28 U.S.C. § 1498(a) grants patent owners the right to sue the United States for the unauthorized use of patents. This statute and its predecessors have long been viewed as an exercise of eminent domain over the patent property. The Federal Circuit ignored this view in Zoltek v. U.S., holding that patents are not subject to eminent domain. However, Congress has acknowledged that litigation costs are a necessary part of a patent taking. If, as precedent established long before …
The Creativity Effect, Christopher Sprigman, Christopher Buccafusco
The Creativity Effect, Christopher Sprigman, Christopher Buccafusco
Christopher Sprigman
This paper reports the first experiment to demonstrate the existence of a valuation anomaly associated with the creation of new works. To date, a wealth of social science research has shown that substantial valuation asymmetries exist between owners of goods and potential purchasers of them. The least amount of money that owners are willing to accept to part with their possessions is often far greater than the amount that purchasers would be willing to pay to obtain them. This phenomenon, known as the endowment effect, may create substantial inefficiencies in many markets. Our experiment demonstrates the existence of a related …
I'M Still Your Baby: Canada's Continuing Support Of U.S. Linkage Regulations For Pharmaceuticals, Ron A. Bouchard
I'M Still Your Baby: Canada's Continuing Support Of U.S. Linkage Regulations For Pharmaceuticals, Ron A. Bouchard
Marquette Intellectual Property Law Review
Canada's linkage regime for pharmaceuticals, modeled after the originating U.S. Hatch-Waxman regime, was brought in under intense political pressure to balance effective patent enforcement over new and innovative drugs with the timely market entry of lower-priced generic competitors. It has been almost two decades since the regulations were enacted, and to date, there has been little objective assessment as to whether the regulations have, in fact, stimulated innovation and timely generic entry. We recently completed three empirical studies on the linkage between drug approval and drug patenting under the Patented Medicines (Notice of Compliance) Regulations (NOC Regulations). Of particular interest …
Living With Patents: Insights From Patent Misuse, Vincent Chiapetta
Living With Patents: Insights From Patent Misuse, Vincent Chiapetta
Marquette Intellectual Property Law Review
The Author argues that the patent misuse doctrine should be eliminated. Created almost a century ago as a response to patent power, it has now not only outlived its purpose but causes affirmative harm. Other more nuanced approaches, including antitrust law, produce superior results. Although the Federal Circuit has contained the doctrine, it cannot overrule Supreme Court misuse precedent. Accordingly, the Court should abolish the doctrine at the earliest opportunity or, failing prompt action, Congress should add the matter to its ongoing patent reform agenda. The misuse experience also provides valuable insights regarding how we can appropriately live with our …
Predicting Patent Litigation, Colleen Chien
Predicting Patent Litigation, Colleen Chien
Faculty Publications
Patent lawsuits are disruptive, unpredictable, and costly. The inability to anticipate patent litigation makes it practically uninsurable, exposes companies to late-stage suits, and drives companies to rapidly accumulate patents in order to ward off litigation. This article confronts this systemic problem, by examining the factors that lead a particular patent to be litigated – only around 1% of patents ever is. It relates the eventual litigation of a patent to earlier events in the patent’s life, including changes in ownership of the patent (assignments, transfers, and changes in owner size), continued investment in the patent (reexamination, maintenance fees), securitization of …
Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca
Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca
Law Faculty Scholarship
When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en banc …
Top Tens In 2010: Patent And Trademark Cases, Stephen Mcjohn
Top Tens In 2010: Patent And Trademark Cases, Stephen Mcjohn
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Top Tens In 2010: Copyright And Trade Secret Cases, Stephen Mcjohn
Top Tens In 2010: Copyright And Trade Secret Cases, Stephen Mcjohn
Northwestern Journal of Technology and Intellectual Property
No abstract provided.
Patent Settlements, Risk, And Competition, Mark R. Patterson
Patent Settlements, Risk, And Competition, Mark R. Patterson
Faculty Scholarship
PowerPoint presentation delivered at the session, Patent Settlements: The Issues Beyond the "Reverse Payment" Cases at the ABA 59th Annual Antitrust Spring Meeting, March 30, 2011.
Atypical Inventions, Sean B. Seymore
Atypical Inventions, Sean B. Seymore
Vanderbilt Law School Faculty Publications
Patent law is constantly evolving to accommodate advances in science and technology. But, for a variety of reasons, some aspects of patent doctrine have not evolved over time leading to a growing disconnect between the patent system and certain technical communities. Particularly vulnerable to the ill effects of this disconnect are "atypical" inventions, which this Article definesas those in which either (1) a technical aspect of the invention or the inventive process does not conform to an established legal standard in patent law or (2) the technical underpinnings of the invention depart from well-established scientific paradigms. An example of the …
Software Wars: The Patent Menace, Andrew Nieh
Equity, Antitrust, And The Reemergence Of The Patent Unenforceability Remedy, Jorge Contreras
Equity, Antitrust, And The Reemergence Of The Patent Unenforceability Remedy, Jorge Contreras
Articles in Law Reviews & Other Academic Journals
The conventional legal analysis of technical standard setting derives primarily from antitrust law. But antitrust remedies, taken alone, may not be broad enough to address recent abuses of the standardization process. The principal example of this shortcoming is the well-known case of Rambus, Inc., which, over the course of several years, was alleged to have concealed relevant patent applications from a standards organization in which it participated and then successfully sued the entire DRAM industry for royalties after the standard was “locked-in.” Remarkably, Rambus prevailed in its litigation campaign despite aggressive enforcement efforts by the Federal Trade Commission. Rambus’s success …
Top Tens In 2010: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn
Top Tens In 2010: Patent, Trademark, Copyright And Trade Secret Cases, Stephen M. Mcjohn
Suffolk University Law School Faculty Works
This piece discusses notable intellectual property decisions in 2010 in the United States. Viewed across doctrinal lines, some interesting threads emerge. The scope of protection was at issue in each area, such as whether human genes and business methods are patentable, whether a product idea may be a trade secret, and where the constitutional limits on copyright legislation lie. Secondary liability remains widely litigated, as rights holders seek both deep pocket defendants and a means to cut off individual infringers. The courts applied slightly different standards as to the state of mind required for secondary liability. Many of the cases …
Three Statutory Regimes At Impasse: Reverse Payments In Pay-For-Delay Settlement Agreements Between Brand-Name And Generic Drug Companies, Rudolph J.R. Peritz
Three Statutory Regimes At Impasse: Reverse Payments In Pay-For-Delay Settlement Agreements Between Brand-Name And Generic Drug Companies, Rudolph J.R. Peritz
Articles & Chapters
No abstract provided.