Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Intellectual Property Law (17)
- Law and Economics (5)
- Constitutional Law (2)
- Food and Drug Law (2)
- Social and Behavioral Sciences (2)
-
- Anthropology (1)
- Antitrust and Trade Regulation (1)
- Business (1)
- Comparative and Foreign Law (1)
- Computer Law (1)
- Contracts (1)
- Criminal Law (1)
- Economics (1)
- Health Law and Policy (1)
- Internet Law (1)
- Law and Society (1)
- Legal Studies (1)
- Legal Theory (1)
- Legislation (1)
- Litigation (1)
- Political Economy (1)
- Property Law and Real Estate (1)
- Rule of Law (1)
- Science and Technology Law (1)
- Science and Technology Studies (1)
- Social and Cultural Anthropology (1)
- Sociology (1)
- Technology and Innovation (1)
- Theory, Knowledge and Science (1)
- Institution
-
- American University Washington College of Law (4)
- Boston University School of Law (3)
- University of Richmond (3)
- George Washington University Law School (2)
- Chicago-Kent College of Law (1)
-
- DePaul University (1)
- Georgetown University Law Center (1)
- Schulich School of Law, Dalhousie University (1)
- The Catholic University of America, Columbus School of Law (1)
- University at Buffalo School of Law (1)
- University of Baltimore Law (1)
- University of Missouri School of Law (1)
- University of New Hampshire (1)
- University of Pittsburgh School of Law (1)
- University of Tulsa College of Law (1)
- Publication
-
- Articles in Law Reviews & Other Academic Journals (3)
- Faculty Scholarship (3)
- Law Faculty Publications (3)
- All Faculty Scholarship (2)
- GW Law Faculty Publications & Other Works (2)
-
- Amicus Briefs (1)
- Articles (1)
- Articles, Book Chapters, & Popular Press (1)
- Articles, Chapters in Books and Other Contributions to Scholarly Works (1)
- College of Law Faculty (1)
- Faculty Publications (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Journal Articles (1)
- Law Faculty Scholarship (1)
- Scholarly Articles (1)
Articles 1 - 23 of 23
Full-Text Articles in Law
Patent Examination Priorities, Michael J. Meurer
Patent Examination Priorities, Michael J. Meurer
Faculty Scholarship
Measures that discourage excessive patenting and claiming, propose shared examination responsibilities, and increase staffing all have potential to raise examination quality and alleviate the patent application backlog. So far these measures have been too limited to have much impact, and there is insufficient evidence to reliably judge their effectiveness. In this Article, I consider a different approach to examination reform. I take as given a significant scarcity of examiner time, and I ask how the PTO should set examination priorities. In other words, how much of their eighteen hours should examiners devote to the various tasks they are expected to …
Brief Of Eleven Law Professors And Aarp As Amici Curiae In Support Of Respondent, Bilski V. Kappos, 130 S. Ct. 3218 (2010) (No. 08-964), Joshua Sarnoff, Lori Andrews, Andrew Chin, Ralph Clifford, Christine Farley, Sean Flynn, Debra Greenfield, Peter Jaszi, Charles Mcmanis, Lateef Mtima, Malla Pollack
Brief Of Eleven Law Professors And Aarp As Amici Curiae In Support Of Respondent, Bilski V. Kappos, 130 S. Ct. 3218 (2010) (No. 08-964), Joshua Sarnoff, Lori Andrews, Andrew Chin, Ralph Clifford, Christine Farley, Sean Flynn, Debra Greenfield, Peter Jaszi, Charles Mcmanis, Lateef Mtima, Malla Pollack
Amicus Briefs
This is the brief filed by Joshua Sarnoff and Barbara Jones on behalf of various law professors and AARP in the Bilski v. Kappos case, discussing constitutional limits to the Patent power.
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.
One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll
One Size Does Not Fit All: A Framework For Tailoring Intellectual Property Rights, Michael W. Carroll
Articles in Law Reviews & Other Academic Journals
The United States and its trading partners have adopted cultural and innovation policies under which the government grants one-size-fits-all patents and copyrights to inventors and authors. On a global basis, the reasons for doing so vary, but in the United States granting intellectual property rights has been justified as the principal means of promoting innovation and cultural progress. Until recently, however, few have questioned the wisdom of using such blunt policy instruments to promote progress in a wide range of industries in which the economics of innovation varies considerably.
Provisionally accepting the assumptions of the traditional economic case for intellectual …
Alternative Software Protection In View Of In Re Bilski, Charles Duan, Lauren Katzenellenbogen, James Skelley
Alternative Software Protection In View Of In Re Bilski, Charles Duan, Lauren Katzenellenbogen, James Skelley
Articles in Law Reviews & Other Academic Journals
The United States Court of Appeals for the Federal Circuit's (CAFC) en banc decision, In re Bilski, redefined the standard for patenting processes including business methods and computer software. In Bilski, the Federal Circuit departed from the "useful, concrete, and tangible result" test it had established in State Street Bank & Trust Co. v. SignatureFinancialGroup,Inc., which had been the standard for the past ten years. The Federal Circuit returned to a test articulated nearly 40 years ago by the Supreme Court in Gottschalk v. Benson, and clarified that State Street was "never intended to supplant the Supreme Court's test.", Under …
Allocating Intellectual Property Rights Between Parties, Ashlyn J. Lembree
Allocating Intellectual Property Rights Between Parties, Ashlyn J. Lembree
Law Faculty Scholarship
No abstract provided.
Courting Specialization: An Empirical Study Of Claim Construction Comparing Patent Litigation Before Federal District Courts And The International Trade Commission, David L. Schwartz
Courting Specialization: An Empirical Study Of Claim Construction Comparing Patent Litigation Before Federal District Courts And The International Trade Commission, David L. Schwartz
All Faculty Scholarship
The United States International Trade Commission (ITC) has recently become an important adjudicator of patent infringement disputes, and the administrative law judges (ALJs) on the ITC are widely viewed as experts on patent law. This Article empirically examines the performance of the ITC in patent claim construction cases. The Article also compares the performance of the ITC on claim construction with that of federal district courts of general jurisdiction. This study does not find any evidence that the patent-experienced ALJs of the ITC are more accurate at claim construction than district court judges or that the ALJs learn from the …
Hoisting Originality: A Response, Roberta Kwall
Hoisting Originality: A Response, Roberta Kwall
College of Law Faculty
This commentary originally appeared as part of the inaugural Virtual Workshop sponsored by the Intellectual Property Institute at the University of Richmond School of Law. The workshop featured a paper entitled Hoisting Originality (now published at Cardozo Law Review, Vol. 31, p. 451, 2009) by Professor Joseph Miller, along with two commentaries on the paper. My commentary examines and responds to Miller's argument that the standard for copyright law's originality requirement should be "hoisted" and thus analogized to that present in patent law.
The Unreasonableness Of The Patent Office's 'Broadest Reasonable Interpretation' Standard, Christopher A. Cotropia
The Unreasonableness Of The Patent Office's 'Broadest Reasonable Interpretation' Standard, Christopher A. Cotropia
Law Faculty Publications
This article does what is long overdue: it fully explores the validity of the BRI standard. The previously articulated rationales behind the BRI standard are severely lacking. Not only does the BRI standard fail to provide the advantages touted by the courts that created the standard, the standard is contrary to both the patent statutes and the concept of a unitary patent system. It allows examiners to avoid difficult claim interpretation issues; it leads to improper and uncorrectable denials of patent protection; and it is incurably ambiguous. Given that the BRI standard is severely lacking, the courts and the USPTO …
Efficient Definition And Communication Of Patent Rights: The Importance Of Ex Post Delineation, William Hubbard
Efficient Definition And Communication Of Patent Rights: The Importance Of Ex Post Delineation, William Hubbard
All Faculty Scholarship
As with any area of law, rights and duties relating to patents should be clearly communicated in an efficient manner. Unfortunately, uncertainty concerning the scope of the rights granted by patents frequently results in expensive litigation. Most proposals for reducing this uncertainty do not examine its root causes and focus only on measures to provide additional clarification in patent applications. Such ex ante proposals are often inefficient because considerable uncertainty is inherent, given the limits of language and of our ability to foresee future developments. In addition, ex ante clarification often would be wasteful because so few patents are valuable …
The Individual Inventor Motif In The Age Of The Patent Troll, Christopher A, Cotropia
The Individual Inventor Motif In The Age Of The Patent Troll, Christopher A, Cotropia
Law Faculty Publications
The individual inventor motif has been part of American patent law since its inception. The question is whether the recent patent troll hunt has damaged the individual inventor's image and, in turn, caused Congress, the United States Patent and Trademark Office (USPTO), and the courts to become less concerned with patent law's impact on the small inventor. This Article explores whether there has been a change in attitude by looking at various sources from legislative, administrative, and judicial actors in the patent system, such as congressional statements and testimony in discussions of the recent proposed patent reform legislation, the USPTO …
The Folly Of Early Filing In Patent Law, Christopher A. Cotropia
The Folly Of Early Filing In Patent Law, Christopher A. Cotropia
Law Faculty Publications
This Article questions the conventional wisdom that the patent system should continue to encourage "early filing" of patent applications-filing at the beginning stages of technological development. The current thinking regarding early filing fails to account for the lack of technical and market information available about the invention at the early stages of development. A "file early, file often" mentality is instilled in inventors, exacerbating such systemic patent problems as too many patent applications, too many patents, underdevelopment of patented technology, increased assertion of patent rights, and fuzzy patent boundaries, to name a few. The Article suggests that in response patent …
The Flawed Nature Of The False Marking Statute, Elizabeth I. Winston
The Flawed Nature Of The False Marking Statute, Elizabeth I. Winston
Scholarly Articles
In 2005, the United States Court of Appeals for the Federal Circuit rendered a decision on an “issue of first impression” interpreting a one hundred sixty-three year old provision of the United States Code - the “false marking” statute embodied in 35 U.S.C. § 292. It is false marking to mark as patented an unpatented article if done with the intent to deceive the public and, as such, is a fineable offense. The false marking statute remains one of only a handful of qui tam actions left intact from a rich history of varied incentives provided by the government for …
Allocating Patent Rights Between Earlier And Later Inventions, Charles W. Adams
Allocating Patent Rights Between Earlier And Later Inventions, Charles W. Adams
Articles, Chapters in Books and Other Contributions to Scholarly Works
No abstract provided.
The Doctrine Of Equivalents In Various Patent Regimes: Does Anybody Have It Right?, Martin J. Adelman
The Doctrine Of Equivalents In Various Patent Regimes: Does Anybody Have It Right?, Martin J. Adelman
GW Law Faculty Publications & Other Works
The doctrine of equivalents is arguably one of the most important aspects of patent law. The protection a patent confers is meaningless if its scope is determined to be so narrow that trivial changes to a device bring it out of the bounds of the patent. One of the greatest challenges courts and legislatures therefore face in patent law is to create rules for determining patent scope that maintain the protection a patent is meant to confer while still keeping the patent monopoly within reasonable bounds. Despite the general unity in patent laws among developed countries, the difficulty of this …
An Economic Justification For Open Access To Essential Medicine Patents In Developing Countries, Sean Flynn, Aidan Hollis, Mike Palmedo
An Economic Justification For Open Access To Essential Medicine Patents In Developing Countries, Sean Flynn, Aidan Hollis, Mike Palmedo
Articles in Law Reviews & Other Academic Journals
This paper offers an economic rationale for compulsory licensing of needed medicines in developing countries. The patent system is based on a trade-off between the “deadweight losses” caused by market power and the incentive to innovate created by increased profits from monopoly pricing during the period of the patent. However, markets for essential medicines under patent in developing countries with high income inequality are characterized by highly convex demand curves, producing large deadweight losses relative to potential profits when monopoly firms exercise profit-maximizing pricing strategies. As a result, these markets are systematically ill-suited to exclusive marketing rights, a problem which …
Pitfalls In Patenting Publicly Funded Research - Comments On Draft South African Regulations, Matthew Herder, Cynthia M. Ho
Pitfalls In Patenting Publicly Funded Research - Comments On Draft South African Regulations, Matthew Herder, Cynthia M. Ho
Articles, Book Chapters, & Popular Press
South Africa recently enacted legislation similar to the US. Bayh-Dole Act, which permits publicly funded institutions to obtain patent rights in hopes that the patent incentive will foster commercialization, as well as generate revenues to the funded institutions and scientists. While enacting analogs to Bayh-Dole seems presently in vogue, there are definitely concerned about the original legislation that have been voiced. When South Africa recently published proposed guidelines implementing its version of Bayh-Dole, it broadly opened up the opportunity for public comments. The attached paper discusses some of concerns, including problems with delaying timely knowledge dissemination and the need to …
Notes On A Geography Of Knowledge, Michael J. Madison
Notes On A Geography Of Knowledge, Michael J. Madison
Articles
Law and knowledge jointly occupy a metaphorical landscape. Understanding that landscape is essential to understanding the full complexity of knowledge law. This Article identifies some landmarks in that landscape, which it identifies as forms of legal practice: several recent cases involving intellectual property licenses, including the recent patent law decision in Quanta v. LG Electronics and the open source licensing decision in Jacobsen v. Katzer. The Article offers a preliminary framework for exploring the territories of knowledge practice in which those legal landmarks appear.
Of Patents And Property, Michael J. Meurer, James Bessen
Of Patents And Property, Michael J. Meurer, James Bessen
Faculty Scholarship
Do patents behave substantially like property rights in tangible assets, in that they encourage development and innovation? This article notes that historical evidence, cross-country evidence, economic experiments, and estimates of net benefits all indicate that general property rights institutions have a substantial direct effect on economic growth. Conversely, with a few important exceptions like chemicals and pharmaceuticals, empirical evidence indicates that intellectual property rights have at best only a weak and indirect effect on economic growth. Further, it appears that for public firms in most industries today, patents may actually discourage investment in innovation for fear of winding up on …
Pharmaceutical Innovation: Law & The Public's Health, Kevin Outterson
Pharmaceutical Innovation: Law & The Public's Health, Kevin Outterson
Faculty Scholarship
At last count, global pharmaceutical spending exceeded $750 billion. Unlike most medical products and services, many pharmaceuticals are sold at a price that greatly exceeds marginal cost. AIDS medicines that retail for over $10,000 per person per year in the United States can be produced generically at a marginal cost of less than $150. Patents and other related IP rights create these significant gaps between marginal cost and retail price, generating many billions of dollars in profits (patent rents) for companies.
How Not To Invent A Patent Crisis, F. Scott Kieff, Henry E. Smith
How Not To Invent A Patent Crisis, F. Scott Kieff, Henry E. Smith
GW Law Faculty Publications & Other Works
This short essay written for a broad audience addresses the problems that are at the center of current debates in academic and policy circles about the patent system. Most current patent reform proposals are designed to give officials and courts more power to weaken or eliminate ‘‘unworthy’’ patents and take primary aim at so-called patent trolls. This essay argues that in light of the rapid, and excessive, changes that have already occurred in the courts, what patent law needs is a tweaking of existing safety valves and processes - not opening the floodgates to more discretion and uncertainty.
Self-Realizing Inventions And The Utilitarian Foundation Of Patent Law, Alan J. Devlin, Neel U. Sukhatme
Self-Realizing Inventions And The Utilitarian Foundation Of Patent Law, Alan J. Devlin, Neel U. Sukhatme
Georgetown Law Faculty Publications and Other Works
Unlike other forms of intellectual property, patents are universally justified on utilitarian grounds alone. Valuable inventions and discoveries, bearing the characteristics of public goods, are easily appropriated by third parties. Because much technological innovation occurs pursuant to significant expenditures—both in terms of upfront research and subsequent commercialization costs—inventors must be permitted to extract at least part of the social gain associated with their technological contributions. Absent some form of proprietary control or alternative reward system, economics predicts that suboptimal capital will be devoted to the innovative process.
This widely accepted principle comes with an important corollary: namely, that canons of …
Cops, Robbers, And Search Engines: The Questionable Role Of Criminal Law In Contributory Infringement Doctrine, Mark Bartholomew
Cops, Robbers, And Search Engines: The Questionable Role Of Criminal Law In Contributory Infringement Doctrine, Mark Bartholomew
Journal Articles
Online technologies have created a new litigation locus for intellectual property rights holders, one that targets intermediaries, not direct infringers. This unprecedented litigation strategy has put sudden pressure on the courts to evaluate the liability of indirect infringers. Without a developed body of precedent at their disposal, judges have resorted to analogies from the criminal law of accomplice liability to set the boundaries of contributory infringement. Does it make sense for intellectual property regulation to depend on the same principles that animate criminal law? This Article maintains that it would be a mistake to remake contributory infringement law in criminal …