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Full-Text Articles in Law
Grading Patent Remedies: Dependent Claims And Relative Infringement, Daniel Harris Brean
Grading Patent Remedies: Dependent Claims And Relative Infringement, Daniel Harris Brean
Daniel Harris Brean
Patents define an inventor’s exclusive rights by reciting essential aspects of the invention in sentences called claims. The claims are drafted in varying degrees of technical specificity, such that each claim is legally distinct—some may be valid or infringed while others are not. Most commonly, this variation is accomplished by using a combination of “independent” and “dependent” claims. Independent claims stand alone, while dependent claims incorporate by reference all the features recited in the independent claims but go on to add further features or details. The result is a range of potential infringing activity that triggers liability, from the broadest, most conceptual claims …
Patent Enforcement In Cyberterritories, Daniel Harris Brean
Patent Enforcement In Cyberterritories, Daniel Harris Brean
Daniel Harris Brean
3D printing technology has exposed a gap in patent protection. Thanks to 3D printers, physical products can be created and sold digitally in the form of CAD files, and consumers printing the products are effectively manufacturers. But current law would treat a product patent as being directly infringed only when the physical product is made, used, offered for sale, or sold, making it difficult to target the digital source of the infringement. While past scholarship has fashioned new legal constructs to close this gap (e.g., expanding patent eligibility or extending infringement case law) this Article considers whether a proper, analogous …
Business Methods, Technology, And Discrimination, Daniel Harris Brean
Business Methods, Technology, And Discrimination, Daniel Harris Brean
Daniel Harris Brean
The United States is obligated under the Trade-Related Aspects of Intellectual Property Rights (TRIPS) treaty to make patent rights available and enjoyable without discrimination as to the “field of technology” of the invention. No specific areas of technology may be singled out for unjustified special treatment. Yet the United States is doing just that with respect to computer-implemented business methods. Doctrinally, such methods are subject to an especially high bar for patentability. Statutorily, patents on such methods may be challenged in invalidity proceedings that are exclusively available for so-called “covered business method patents.” The law seems to reflect a skepticism …
Casting Aspersions In Patent Trials, Daniel Harris Brean, Bryan P. Clark
Casting Aspersions In Patent Trials, Daniel Harris Brean, Bryan P. Clark
Daniel Harris Brean
Bad actors in patent litigation can face serious consequences. Infringers who are found to “willfully” infringe may be subject to trebled damages. Patentees who assert weak claims in bad faith can be ordered to pay the defendant’s attorneys’ fees. These remedies are of such importance to the patent system today that the Supreme Court reinvigorated both of the respective doctrines in back-to-back landmark decisions in 2014 (Octane Fitness) and 2016 (Halo Electronics).
Those decisions have helped district courts more effectively punish and deter misconduct. But the Supreme Court neglected to address a critical part of these …
Pro Se Patent Appeals At The Federal Circuit, Daniel Harris Brean
Pro Se Patent Appeals At The Federal Circuit, Daniel Harris Brean
Daniel Harris Brean
This article presents the first in-depth study of patent cases appealed by pro se litigants in the U.S. Court of Appeals for the Federal Circuit. In the 127 pro se patent appeals decided from 2006-2015, the Federal Circuit treated pro se appellants more favorably than represented appellants in important procedural and substantive ways. The Federal Circuit, on average, decides pro se patent appeals more quickly and with more detailed explanation. Pro se appellants almost always receive written opinions from the court, while represented appellants get one-word summary affirmances (“Affirmed.”) as much as half the time. Despite being issued faster, the …
Patenting Physibles: A Fresh Perspective For Claiming 3d-Printable Products, Daniel Harris Brean
Patenting Physibles: A Fresh Perspective For Claiming 3d-Printable Products, Daniel Harris Brean
Daniel Harris Brean
To successfully combat patent infringement, it is necessary to have an effective way to extinguish infringement at the source. In the case of 3D printing, this means being able to enforce one’s patent against those who are selling or distributing the printable CAD files. But the law does not currently provide patent protection for CAD files. Because this severely limits the enforceability of patents in the emerging 3D printing space, it discourages innovation and needs to be remedied.
Beauregard claims are perhaps the best existing option for patents that might encompass CAD files, but Beauregard claims are still largely ineffective …
Ending Unreasonable Royalties: Why Nominal Damages Are Adequate To Compensate Patent Assertion Entities For Infringement, Daniel Harris Brean
Ending Unreasonable Royalties: Why Nominal Damages Are Adequate To Compensate Patent Assertion Entities For Infringement, Daniel Harris Brean
Daniel Harris Brean
According to Section 284 of the Patent Act, damages for patent infringement are supposed to be compensatory. The statute only allows for recovery of "damages adequate to compensate for the infringement." Even though it qualifies that such damages must be "in no event less than a reasonable royalty," this language cannot be read to avoid the fundamental requirement that, as compensatory damages, any recovery must stem from actual harm suffered by the patent owner. Absent proof of actual harm, only nominal damages should be recoverable. Yet patentees who suffer no actual harm are regularly obtaining considerable amounts of money from …
Will The “Nexus” Requirement Of Apple V. Samsung Preclude Injunctive Relief In The Majority Of Patent Cases?: Echoes Of The Entire Market Value Rule, Daniel Harris Brean
Will The “Nexus” Requirement Of Apple V. Samsung Preclude Injunctive Relief In The Majority Of Patent Cases?: Echoes Of The Entire Market Value Rule, Daniel Harris Brean
Daniel Harris Brean
In eBay, Inc. v. MercExchange, LLC, the Supreme Court put an end to the practice of presuming that injunctive relief is appropriate upon a finding of patent infringement, where it held that "the decision whether to grant or deny injunctive relief rests within the equitable discretion of the district courts, and that such discretion must be exercised consistent with traditional principles of equity, in patent disputes no less than in other cases governed by such standards." 547 U.S. 388, 394 (2006). This decision made injunctive relief much more difficult to obtain, but also attempted to maintain discretion and avoid rigid …
Asserting Patents To Combat Infringement Via 3d Printing: It's No "Use", Daniel Harris Brean
Asserting Patents To Combat Infringement Via 3d Printing: It's No "Use", Daniel Harris Brean
Daniel Harris Brean
Three-dimensional ("3D") printing technology, which enables physical objects to be "printed" as easily as words can be printed on a page, is rapidly moving from industrial settings into consumers' homes. The advent of consumer grade 3D printers fundamentally alters the traditional allocation of manufacturing infrastructure and sales activity. No longer do manufacturers need to make, sell, and ship physical products in their physical states. Rather, consumers may download digital representations of products over the Internet for printing in the comfort their own homes. For products sold in this fashion that are patented, this presents difficult hurdles to enforcement against infringers. …
Overcoming The “Impossible Issue” Of Nonobviousness In Design Patents, Daniel Harris Brean, Janice M. Mueller
Overcoming The “Impossible Issue” Of Nonobviousness In Design Patents, Daniel Harris Brean, Janice M. Mueller
Daniel Harris Brean
The United States offers legal protection for designs - the overall aesthetic appearances of objects - through the patent system. To obtain a U.S. design patent has long required something more than novelty. Just as the patentability of a utilitarian device mandates a “nonobvious” advance over earlier technology, the patentability of a new and ornamental design requires that it differ from prior designs to an extent that would not have been “obvious to a designer of ordinary skill who designs articles of the type involved.” Ostensibly promoting progress in design, Congress in 1842 shoehorned design protection into the existing utility …
Keeping Time Machines And Teleporters In The Public Domain: Fiction As Prior Art For Patent Examination, Daniel Harris Brean
Keeping Time Machines And Teleporters In The Public Domain: Fiction As Prior Art For Patent Examination, Daniel Harris Brean
Daniel Harris Brean
Works of fiction sometimes contain disclosures of inventions that operate as a bar to patentability, preventing inventors who actually make those inventions from subsequently patenting them. This is because the fictional disclosures effectively destroy the novelty of the inventions or render them obvious. Despite such disclosures, the U.S. Patent and Trademark Office does not habitually or effectively search through fiction for pertinent prior art in its examinations. This paper explores the legal, economic, and pragmatic considerations if searching fiction is to become part of the patent examination process. Until recently, it was impracticable to search fiction in a manner that …