Law Commons^™

Rolling Equilibriums At The Pre-Commons Frontier: Identifying Patently Efficient Royalties For Complex Products, F. Russell Denton

F. Russell Denton

Patent pricing problems have roiled industry in recent years. The biggest challenge may be splintered in-licensing of dozens or even thousands of patents for a single behemoth product, where ubiquitous overlaps in invention utility frustrate rational splitting of royalties. That issue is especially daunting for software, computer chips and biotechnology. Judicial remedies are no better: courts have been unable to streamline or standardize the analysis for infringement dam-ages under the prevailing Georgia-Pacific rule. The historic weakness of financial science for intangible assets, along with cherry picking by parties, hobbles G-P’s 15-factor analysis. The universal fog in allocating royalties creates license …

Improving The Federal Circuit's Approach To Choice Of Law For Procedural Matters In Patent Cases, Ted L. Field

Ted L. Field

Because of its virtually exclusive jurisdiction over patent cases from the entire country, the United States Court of Appeals for the Federal Circuit faces a unique situation with respect to choice of law for procedural matters in patent cases. Normally, in a non-patent-related case, a district court applies the procedural-law precedent of the U.S. Court of Appeals for the circuit in which the district court sits. However, because the Federal Circuit’s jurisdiction is based on subject matter rather than geography, the court has had to choose whether (1) to develop and apply its own precedent to procedural matters or (2) …

Patent Search, Kaviraj Singh

Kaviraj Singh Sr.

Patent search All the types of patent searches are the same in the sense that searchers are trying to find closely related documents. However, to make it effective, the ways and approach must be different from each other according to the aims of search. The basic purpose of various types of patent search is described herein-below: researchers can easily understand the state-of-the-art technology and so minimize researching time; product developers can be free from anticipated infringement suits; inventors can modify their ideas to be suitable for the patentability criteria; tentative applicants can determine whether they will apply or will save …

Open Source, Open Access, Open Transfer: Market Approaches To Research Bottlenecks, Robin C. Feldman

Robin C Feldman

One of the most hotly contested issues in the field of intellectual property law concerns the existence, or non-existence, of patent thickets and the extent to which any such bottlenecks may be interfering with research. For decades, scholars warned that problems related to the over proliferation of patent rights would interfere with innovation. In contrast, a growing body of commentary argues that patent thickets are not a problem in modern industries. Either patent thickets do not exist, or if they do, patent thickets do not interfere with the progress of research.

The rhetoric is particularly heated these days because of …

Inequitable Conduct: A Flawed Doctrine Worth Saving, Lisa A. Dolak

Lisa A Dolak

A growing chorus of voices is calling for reform or even elimination of the doctrine of inequitable conduct. Critics argue that innocent or even irrelevant prosecution mistakes can be met with the ultimate penalty: unenforceability of the entire patent.

There is no question the doctrine is in need of repair. Patent owners are subject to different materiality standards in the U.S. Patent and Trademark Office and the courts. Inequitable conduct charges can be based on information completely immaterial to patentability. Findings of deceptive intent are increasingly based on inference and not evidence. And the one-size-fits-all remedy of total unenforceability deprives …

Ebay And The Blackberry®: A Media Coverage Case Study, Lisa A. Dolak, Blaine T. Bettinger

Lisa A Dolak

Patent owners, potential infringers, and the courts will continue to work through the implications of the Supreme Court’s 2006 decision in eBay Inc. v. MercExchange, L.L.C. for some time. We look back, however, at media coverage relating to injunctions, “trolls,” and the U.S. patent system generally, in the months preceding the Court’s decision. We show that although eBay featured prominently in news and editorial coverage while it was pending at the Court, it could not compete in the media with another patent case pending at the same time: the case that threatened to darken the Blackberry®. Further, we note that …

The United States Patent System In The Media Mirror, Lisa A. Dolak, Blaine T. Bettinger

Lisa A Dolak

The last several years have witnessed a flurry of transformative patent reform activity. The Supreme Court has issued key rulings affecting the availability of injunctive and declaratory relief, revised the law of obviousness, and limited the extraterritorial reach of the patent act. Now Congress stands poised to ratify the most significant and far-reaching overhaul of the patent system in at least 45 years.

In this study, we analyzed major newspaper coverage of the patent system from January 1, 2005 through June 30, 2007 to systematically assess how the press portrayed the U.S. patent system. Our examination revealed a negative overall …

Striking A Balance Between Competition Law Enforcement And Patent Policy: A Developing Country's Perspective, Thomas K. Cheng

Thomas K. Cheng

This book chapter examines the tension between competition law enforcement and patent policy in developing countries. Based on the framework proposed by Louis Kaplow in an article in the early 1980s, this book chapter suggests how developing countries should balance consumer welfare against the need to provide incentives to innovate. The book chapter argues that the balance depends on the developing country at issue, in particular on that country's capacity to innovate. For those developing countries with little capacity to innovate, this book chapter suggests that the balance should be tilted towards competition law enforcement. The degree of patent protection …

Le Domaine Public, Garant De L'Intérêt Général En Propriété Intellectuelle ?, Severine Dusollier

Severine Dusollier

No abstract provided.

Mythical Beginnings Of Intellectual Property, Jessica M. Silbey

Jessica Silbey

It has become commonplace to justify intellectual property protection with homage to utilitarianism (maximizing the incentive to create, invent or produce quality goods) or natural rights (people should own the product of their creative, inventive or commercial labor). Despite the on-going dominance of these theories, there remains a dissatisfying lack of a comprehensive explanation for the value of intellectual property protection. This is in part because the economic analysis of law tends to undervalue the humanistic element of intellectual property. This Article aims to fill that void. It offers a new explanation for intellectual property rooted in narrative theory. Whereas …

Users As Innovators: Implications For Patent Doctrine, Katherine J. Strandburg

Katherine J. Strandburg

User innovators range from commercial firms, which invent new production methods in expectation of competitive advantage, to individual hobbyists motivated entirely by their enjoyment of the inventive process. In this Article, I consider the implications for patent doctrine of the fact that many user innovators derive sufficient benefit simply from developing and using their inventions to motivate them to invest the effort necessary to invent them. Moreover, user innovators often benefit from “freely revealing” their innovations to others. Trade secrecy and patenting are not central to motivating this inventive activity.

This picture of user innovation contrasts sharply with the seller …

Rolling Equilibriums At The Pre-Commons Frontier: Identifying Patently Efficient Royalties For Complex Products, F. Russell Denton

F. Russell Denton

Patent pricing problems have roiled industry in recent years. The biggest challenge may be splintered in-licensing of dozens or even thousands of patents for a single behemoth product, where ubiquitous overlaps in invention utility frustrate rational splitting of royalties. That issue is especially daunting for software, computer chips and biotechnology. Judicial remedies are no better: courts have been unable to streamline or standardize the analysis for infringement dam-ages under the prevailing Georgia-Pacific rule. The historic weakness of financial science for intangible assets, along with cherry picking by parties, hobbles G-P’s 15-factor analysis. The universal fog in allocating royalties creates license …