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Full-Text Articles in Law
Imputed Liability: How To Determine When Parent Companies Should Be Held Liable For The Patent Infringements Of Their Subsidiary Companies, Emma Tracy
Missouri Law Review
This Note examines the theory and principles behind three traditional methods used to hold parent companies liable for the infringing actions of their subsidiaries. These methods include traditional agency principles of tort law, piercing of the corporate veil, and inducement principles outlined in § 271(b) of the Patent Act. This Note then discusses how these three methods differ in both the underlying theories they employ, and the subsequent outcomes they achieve, when it comes to fundamental issues of inducement liability. This analysis will include what type of conduct is required and what level of knowledge is necessary to impute liability …
Bowman V. Monsanto Co.: A Bellwether For The Emerging Issue Of Patentable Self-Replicating Technologies And Inadvertent Infringement, Christopher M. Holman
Bowman V. Monsanto Co.: A Bellwether For The Emerging Issue Of Patentable Self-Replicating Technologies And Inadvertent Infringement, Christopher M. Holman
Missouri Law Review
The inherent tendency of patented seeds to self-replicate has led to fears that farmers might face liability for inadvertent patent infringement. To address the perceived problem, some have proposed severely limiting the availability of effective patent protection for self-replicating technologies. Typical examples include denying patent rights to “second generation” selfreplicating products, and even broadly declaring such technologies ineligible for patent protection. The fact is, lawsuits against inadvertently infringing farmers remain of largely hypothetical concern. However, changes in the market could soon render such lawsuits a reality. In addressing the resulting policy concerns, Congress and the courts have at their disposal …
Exploring The Abstact: Patent Eligibility Post Alice Corp V. Cls Bank, John Clizer
Exploring The Abstact: Patent Eligibility Post Alice Corp V. Cls Bank, John Clizer
Missouri Law Review
This Note first sets forth the facts and the ultimate holding of the Supreme Court’s decision in Alice. It then details the historical background surrounding the ineligibility of abstract ideas for patent protection that has arisen from the Supreme Court and lower federal courts’ past decisions. Next, it examines in more in detail the Court’s reasoning as applied in this particular case. Finally, this Note discusses several of the questions raised by the Court’s decision: what exactly constitutes an “abstract idea,” what is the full meaning of the Court's "inventive concept" requirement, and how are we to interpret this decision …
Opening Remarks, October 4, 2013 Symposium: Resolving Ip Disputes: Calling For An Alternative Paradigm, James Levin
Opening Remarks, October 4, 2013 Symposium: Resolving Ip Disputes: Calling For An Alternative Paradigm, James Levin
Journal of Dispute Resolution
Today, 225 years after the Constitution was drafted, we can look back and see how the protection of individual property through our patent system has helped our country grow. In 2012 alone, there were more than 576,763 U.S. patents applications filed and 276,788 patents issued. These numbers don't include the tens of thousands of patents that were bought, sold, and licensed in the private market each year. Not surprisingly, an ever-increasing number of patents are challenged through litigation. In 2012, almost 5000 patent infringement cases were filed. Litigation expenses can easily cost each party in a dispute millions of dollars, …
Developing A Framework For Arbitrating Standards-Essential Patent Disputes, Jorge L. Contreras, David L. Newman
Developing A Framework For Arbitrating Standards-Essential Patent Disputes, Jorge L. Contreras, David L. Newman
Journal of Dispute Resolution
This article lays the groundwork for the development of such procedures and identifies several key areas requiring further study and deliberation. Particular attention is paid to fundamental questions such as whether SEP arbitration should be mandated by SDOs, which conflicts should be arbitrated, whether arbitral decisions should be confidential, and what form arbitration proceedings should take. While, at this early stage, these difficult questions cannot be answered definitively, this article offers a framework for further discussion that the authors hope will be useful for policy makers, industry participants, and commentators considering these important issues.
Intersection Of Patent Infringement And Antitrust Liability In Abbreviated New Drug Application Litigation, The, Kevin E. Noonan
Intersection Of Patent Infringement And Antitrust Liability In Abbreviated New Drug Application Litigation, The, Kevin E. Noonan
Journal of Dispute Resolution
A battle has been raging, over the past ten years, regarding the competing interests of patent protection and antitrust prohibitions in the specialized area of law concerned with patented drugs regulated by the Food and Drug Administration ("FDA").' The contestants are the Federal Trade Commission ("FTC") and parties to Abbreviated New Drug Application (ANDA) litigation, which are a branded drug company and a generic challenger.
Case Study In Patent Litigation Transparency, A, Bernard Chao, Derigan Silver
Case Study In Patent Litigation Transparency, A, Bernard Chao, Derigan Silver
Journal of Dispute Resolution
By focusing on a single high profile patent case, Monsanto v. DuPont, this article explores the problem of transparency in patent litigation from two perspectives. First, this article provides metrics for understanding the nature and quantity of documents that were filed under seal in the Monsanto case. Second, this article scrutinizes particular aspects of the case to provide a more nuanced understanding of what the public cannot see. Although primarily descriptive, this article critically analyzes the sealing of so many documents by questioning the level of judicial oversight applied in decisions to seal court filings. It then goes on to …
Echoes From The Past: How The Federal Circuit Continues To Struggle With Patentable Subject Matter Post-Bilski, Jeff Thruston
Echoes From The Past: How The Federal Circuit Continues To Struggle With Patentable Subject Matter Post-Bilski, Jeff Thruston
Missouri Law Review
This Note will examine whether the cases comprising the eligible subject matter trio are inherently inconsistent. In looking at this issue, this Note will ask if Classen Immunotherapies can be reconciled with the patent eligibility trio, or if both the case and Judge Rader's concerns could have been dealt with more effectively by applying 35 U.S.C. § 101 as a last resort, and instead determining patent eligibility via 35 U.S.C. §§ 102, 103, and 112. It is fundamentally more difficult, expensive, and time consuming to ascertain which category of patentable subject matter a claimed invention falls into, or if the …
Patent Law's Unpredictability Doctrine And The Software Arts, Greg R. Vetter
Patent Law's Unpredictability Doctrine And The Software Arts, Greg R. Vetter
Missouri Law Review
Part II reviews these insights from the Norden model generally. Part III brings these insights to the disclosure doctrines for software patents, with particular emphasis on the unpredictability factor for undue experimentation within enablement. The model corresponds well with enablement and best mode but does not correspond as well with other disclosure-prompting doctrines whose role is related to defining the claim. Thus, the review in Part III of written description, definiteness, and means-plus-function (§ 112 T 6) claim limitations helps establish the contours of applicability for the Norden model. The discussion of Part III also reviews the current state of …
To Construe Or Not To Construe: At The Interface Between Claim Construction And Infringement In Patent Cases, Jason R. Mudd
To Construe Or Not To Construe: At The Interface Between Claim Construction And Infringement In Patent Cases, Jason R. Mudd
Missouri Law Review
This Article examines the blurring of this interface in both the "procedural" and "substantive" contexts. Part I discusses the background and modem legal framework for classifying claim construction as a pure question of law that is answered prior to and separate from the issue of infringement. Part II analyzes the claim construction-infringement boundary in a procedural context by examining the stages of a case at which these inquiries are typically performed and the degree to which courts construe claims "in a vacuum," without reference to the accused product. This Part explains that courts are becoming increasingly accepting of and often …
Forward: Symposium On Evolving The Court Of Appeals For The Federal Circuit And Its Patent Law Jurisprudence, Dennis D. Crouch
Forward: Symposium On Evolving The Court Of Appeals For The Federal Circuit And Its Patent Law Jurisprudence, Dennis D. Crouch
Missouri Law Review
As I discuss below, conditions on the ground have changed in the few short months following the Symposium. Congress has now acted, and the Patent Office will soon have additional authority. These changes play directly into the arguments of our Symposium authors and make their results even more important.
Unpredictability In Patent Law And Its Effect On Pharmaceutical Innovation, Christopher M. Holman
Unpredictability In Patent Law And Its Effect On Pharmaceutical Innovation, Christopher M. Holman
Missouri Law Review
Part II of this Article summarizes the current R&D crisis confronting the pharmaceutical industry and the accompanying drop-off in innovative output from this important technological sector. Part III explains Mr. Armitage's "view from industry," which attributes a significant causative effect to unpredictability in the patent system. Part IV provides two Lilly case studies involving generic challenges to two of the company's important drugs, Gemzar and Strattera, in which the company has suffered as a result of this unpredictability. Part V identifies three distinct forms of unpredictability in patent law: unpredictability caused by the proliferation of loosely defined standards rather than …
Ongoing Confusion Over Ongoing Royalties, The, Mark A. Lemley
Ongoing Confusion Over Ongoing Royalties, The, Mark A. Lemley
Missouri Law Review
In eBay Inc. v. MercExchange, L.L.C., the United States Supreme Court correctly concluded that courts had both the power and the responsibility to decide whether a successful patent owner needed injunctive relief and whether the imposition of that relief would unduly harm either the defendant or the public. The Court's application of the traditional four-factor equity test led, for the first time, to a significant number of cases in which courts found patent infringement but refused to enjoin continued infringement. That, in turn, has raised the question "what happens then?" As a matter of policy, the basic answer seems clear: …
Promoting The Progress: Three Decades Of Patent Jurisprudence In The Court Of Appeals For The Federal Circuit, Damon C. Andrews
Promoting The Progress: Three Decades Of Patent Jurisprudence In The Court Of Appeals For The Federal Circuit, Damon C. Andrews
Missouri Law Review
In the nearly thirty years since the Federal Circuit's first published decision, the court has decided numerous cases that have produced a rich patent jurisprudence. This Article seeks to evaluate that jurisprudence from several perspectives. Part II summarizes the Federal Circuit's patent history in terms of the court's judges, the external factors that have shaped its patent jurisprudence, and the overall success of the court in light of Congress's intent. Part III then evaluates the Federal Circuit's general stance on whether to uphold the PTO's grant or denial of a patent, or a district court's decision to invalidate a patent, …
Crafting A 21st Century United States Patent And Trademark Office, David Kappos
Crafting A 21st Century United States Patent And Trademark Office, David Kappos
Missouri Law Review
Good morning. It is a privilege to be here representing the United States Patent and Trademark Office (USPTO). I want to thank the Missouri Law Review for the invitation and for hosting me here today. Moreover, I want to commend the University of Missouri for convening this important conference. These are critical topics, and today I want to focus on the key role the USPTO will play in shaping patent protections in the future. But let me first congratulate the members from the Federal Circuit who are present today for thirty years of excellence in addressing the most fundamental of …
Ordinary Creativity In Patent Law: The Artist Within The Scientist, Amy L. Landers
Ordinary Creativity In Patent Law: The Artist Within The Scientist, Amy L. Landers
Missouri Law Review
Patent law is intended to promote the creativity of scientists and engineers. The system recognizes that the work of the individual is the engine that ultimately increases the state ofscientific knowledge. As economist Paul Romer recognized, "Technological advance comes from things that people do." Furthering creativity represents the constitutional, theoretical and doctrinal heart of patent law. Yet the field has not meaningfully evaluated the fundamental question of what creativity is. Using theories from psychology, sociology, history and the philosophy of science, this work examines and proposes how patent law can formulate a legal conception of creativity. To undertake this inquiry, …
An Empirical Study Of The Role Of The Written Description Requirement In Patent Prosecution, Dennis D. Crouch
An Empirical Study Of The Role Of The Written Description Requirement In Patent Prosecution, Dennis D. Crouch
Faculty Publications
An en banc Federal Circuit is now considering whether Section 112 of the Patent Act as properly interpreted includes a written description requirement that is separate and distinct from the enablement requirement. Although the USPTO has no direct role in the infringement dispute, the government submitted an amicus curie brief arguing that a separate written description requirement is “necessary to permit the USPTO to perform its basic examination function.” However, when pressed during oral arguments the government could not point to any direct evidence supporting its contention.
This essay presents the results of a retrospective empirical study of the role …
Is Novelty Obsolete? Chronicling The Irrelevance Of The Invention Date In U.S. Patent Law, Dennis D. Crouch
Is Novelty Obsolete? Chronicling The Irrelevance Of The Invention Date In U.S. Patent Law, Dennis D. Crouch
Faculty Publications
This paper presents a normative study of patent applicant use of invention-date rights during ex parte prosecution.
The Patent Lottery: Exploiting Behavioral Economics For The Common Good, Dennis D. Crouch
The Patent Lottery: Exploiting Behavioral Economics For The Common Good, Dennis D. Crouch
Faculty Publications
Lotteries are immensely popular. Players are willing to give the organizer a large monetary cut of every ticket purchase in return for a chance at a jackpot. In some ways, our current patent system operates as a lottery as well. Most patents are relatively worthless, while a few are highly valuable. Reaching the major payout of a highly valuable patent takes perseverance in the face of tremendous uncertainty. Like lottery players, small entrepreneurial companies and individuals have shows signs of bounded rationality. In particular, what I call the patent lottery effect is associated with the phenomena of potential innovators overweighting …
Use Of Neutral Fact-Finding To Preserve Exclusive Rights And Uphold The Disclosure Purpose Of The Patent System, Brian Panka
Use Of Neutral Fact-Finding To Preserve Exclusive Rights And Uphold The Disclosure Purpose Of The Patent System, Brian Panka
Journal of Dispute Resolution
This comment proposes the use of neutral fact-finding as a precursor to litigation of patent disputes. Section II begins with a brief introduction to the concept of patents and the system used in the United States for granting and protecting exclusive rights associated with patent grants. Then, Section III discusses traditional ADR processes available to resolve patent disputes and sets forth reasons those processes are not widely used. Finally, Section IV offers neutral factfinding as a solution to both litigation and traditional ADR process concerns with respect to resolving patent disputes