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Full-Text Articles in Law
Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp
Patent Exclusions And Antitrust After Therasense, Herbert J. Hovenkamp
All Faculty Scholarship
A patent may be held invalid if it was obtained by “inequitable conduct” before the PTO during the process of patent prosecution. In its Therasense decision the Federal Circuit imposed severe requirements against those attempting to defend against a patent on the basis of inequitable conduct, insisting that inequitable conduct be measured essentially by a subjective test. Objective “reasonable person” tests such as negligence or even gross negligence will not suffice. By contrast, the Supreme Court has insisted that the conduct giving rise to a wrongful infringement action violating the antitrust laws be initially based on an objective test – …
Litigating Inequitable Conduct After Therasense, Exerge, And The Aia: Lessons For Litigants, Options For Owners, Lisa A. Dolak
Litigating Inequitable Conduct After Therasense, Exerge, And The Aia: Lessons For Litigants, Options For Owners, Lisa A. Dolak
Chicago-Kent Journal of Intellectual Property
Significant recent judicial and legislative developments have changed the way litigants and counsel need to plan for and litigate inequitable conduct allegations. Exergen and Therasense have heightened the standards for pleading and proving inequitable conduct, respectively, and Congress has expanded the patentee’s post-grant options for preempting or defeating inequitable conduct challenges. Without a doubt, the inequitable conduct litigation landscape has changed. Careful, thorough consideration of all of these developments and their implications is a must for any litigant or counsel faced with or considering asserting a charge of inequitable conduct. This paper discusses these significant recent inequitable conduct-related developments and …
Competition Policy And The Patent System, Herbert J. Hovenkamp
Competition Policy And The Patent System, Herbert J. Hovenkamp
All Faculty Scholarship
This book of CASES AND MATERIALS ON INNOVATION AND COMPETITION POLICY is intended for educational use. The book is free for all to use subject to an open source license agreement. It considers numerous sources of competition policy in addition to antitrust, including those that emanate from the intellectual property laws themselves, and also related issues such as the relationship between market structure and innovation, the competitive consequences of regulatory rules governing technology competition such as net neutrality and interconnection, misuse, the first sale doctrine, and the Digital Millennium Copyright Act (DMCA). Chapters will be updated frequently. The author uses …
Unenforceability, Lee Petherbridge Ph.D., Jason Rantanen, R. Polk Wagner
Unenforceability, Lee Petherbridge Ph.D., Jason Rantanen, R. Polk Wagner
All Faculty Scholarship
The patent doctrine of inequitable conduct—which allows a patent to be held unenforceable on the basis of misbehavior by the applicant during patent prosecution—has been the subject of intense criticism from the bench and bar alike. And yet to date there has been no systematic attempt to determine whether the doctrine is or is not working as theorized. This study fills that gap. We evaluate the performance of the inequitable conduct doctrine with a novel methodological approach: by empirically characterizing the differences between patents found unenforceable and several other types of patents (unlitigated, litigated, invalid, obvious, and underdisclosed), we use …