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Patent

2011

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Articles 1 - 30 of 82

Full-Text Articles in Law

Inventing Norms, William Hubbard Dec 2011

Inventing Norms, William Hubbard

All Faculty Scholarship

Patent law strives to promote the progress of technology by encouraging invention. Traditionally, scholars contend that patent law achieves this goal by creating financial incentives to invent in the form of exclusive rights to new technology. This traditional view of invention, however, fails to recognize that inventors are motivated by more than money. Like most people, inventors are also motivated by social norms, that is, shared normative beliefs favoring certain actions while disfavoring others. This Article argues that many Americans embrace social norms that favor and encourage successful invention. Because of these "inventing norms" inventors enjoy enhanced personal satisfaction and ...


The Ethics Of Genetic Patenting And The Subsequent Implications On The Future Of Health Care, Suzanne Ratcliffe Oct 2011

The Ethics Of Genetic Patenting And The Subsequent Implications On The Future Of Health Care, Suzanne Ratcliffe

Touro Law Review

No abstract provided.


Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca Oct 2011

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Ryan G. Vacca

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en ...


Harvesting Intellectual Property: "Inspired Beginnings" And "Work Makes Work," Two Stages In The Creative Processes Of Artists And Innovators, Jessica M. Silbey Oct 2011

Harvesting Intellectual Property: "Inspired Beginnings" And "Work Makes Work," Two Stages In The Creative Processes Of Artists And Innovators, Jessica M. Silbey

Jessica Silbey

This Article is part of a larger empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents, and business partners. The book-length project involves the collecting and analysis of stories from artists, scientists, and engineers about how and why they create and innovate. It also collects stories from their employers, business partners, managers, and lawyers about their role in facilitating the process of creating and innovating. The book’s aim is to make sense of the intersection between intellectual property law and creative and innovative activity, specifically to discern how intellectual property intervenes in the careers of ...


Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca Oct 2011

Acting Like An Administrative Agency: The Federal Circuit En Banc, Ryan G. Vacca

Akron Law Publications

When Congress created the Federal Circuit in 1982, it thought it was creating a court of appeals. Little did it know that it was also creating a quasi-administrative agency that would engage in substantive rulemaking and set policy in a manner substantially similar to administrative agencies. In this Article, I examine the Federal Circuit's practices when it orders a case to be heard en banc and illustrate how these practices cause the Federal Circuit to look very much like an administrative agency engaging in substantive rulemaking. The number and breadth of questions the Federal Circuit agrees to hear en ...


Association Of Molecular Pathology Meets Therasense: Analyzing The Unenforceability Of Isolated-Sequence-Related Patents For Upenn, Columbia, Nyu, Yale, And Emory, Sam S. Han Ph.D. Sep 2011

Association Of Molecular Pathology Meets Therasense: Analyzing The Unenforceability Of Isolated-Sequence-Related Patents For Upenn, Columbia, Nyu, Yale, And Emory, Sam S. Han Ph.D.

Sam Han

37 CFR 1.56 requires disclosure of material information to the United States Patent and Trademark Office ("USPTO" or "PTO") when applying for a patent. This duty is imposed on (1) each inventor; (2) each attorney or agent who prepares or prosecutes the application; and (3) every other person who is substantively involved in the preparation or prosecution of the application and who is associated with the inventor, with the assignee or with anyone to whom there is an obligation to assign the application. Thus, for academic institutions, those who handle patent prosecution for the institution are bound by this ...


A Critique Of Mark Lemley’S “The Myth Of The Sole Inventor”, John Howells, Ron D. Katznelson Sep 2011

A Critique Of Mark Lemley’S “The Myth Of The Sole Inventor”, John Howells, Ron D. Katznelson

Ron D. Katznelson

In a forthcoming article in the Michigan Law Review, Professor Mark Lemley advances a thesis that “the canonical story of the lone genius inventor is largely a myth” and describes a selection of pioneer inventions to support his thesis. We show that Lemley has many of his facts wrong. We examine his assertions and set the record straight in the pioneer invention cases of Edison, the Wright brothers, the Selden automobile patent vis a vis Ford, Watt and the steam engine and Fleming and penicillin. We are concerned with the errors in alleged historical and legal facts in what Lemley ...


Should Posts On Social Networking Websites Be Considered "Printed Publications" Under Patent Law?, Xiaojing Li Sep 2011

Should Posts On Social Networking Websites Be Considered "Printed Publications" Under Patent Law?, Xiaojing Li

Xiaojing Li

The emergence of social networking websites imposes a challenge to patent law. Courts should not make a blanket assumption that everything posted on social websites constitute a printed publication. Rather, courts should adopt a refined multiple factor test to help the analysis. This proposal would result in a balance between private and public interests in an invention, and therefore help achieve the ultimate goal of patent law.


Coding For Life--Should Any Entity Have The Exclusive Right To Use And Sell Isolated Dna, Douglas L. Rogers Aug 2011

Coding For Life--Should Any Entity Have The Exclusive Right To Use And Sell Isolated Dna, Douglas L. Rogers

Douglas L. Rogers

Myriad Genetics, Inc. ("Myriad") obtained patents in the 1990's on two "isolated" human breast and ovarian cancer susceptibility genes ("BRCA"). Myriad did not list all the isolated sequences it claims to have a right to monopolize, but instead claims a patent on the physical phenomena itself -- all DNA segments that code for the BRCA1 polypeptide, even the sequences Myriad has not identified and even someone else in the future creates or isolates the sequences through a method or methods not contemplated by Myriad.

An impressive array of non-profit medical societies, doctors and patients sued to have the Myriad patents ...


The Ftc’S Proposal For Regulating Ip Through Ssos Would Replace Private Coordination With Government Hold-Up, F. Scott Kieff, Richard Epstein, Daniel Spulber Aug 2011

The Ftc’S Proposal For Regulating Ip Through Ssos Would Replace Private Coordination With Government Hold-Up, F. Scott Kieff, Richard Epstein, Daniel Spulber

F. Scott Kieff

In its recent report entitled “The Evolving IP Marketplace,” the Federal Trade Commission (FTC) advances a far-reaching regulatory approach (Proposal) whose likely effect would be to distort the operation of the intellectual property (IP) marketplace in ways that will hamper the innovation and commercialization of new technologies. The gist of the FTC Proposal is to rely on highly non-standard and misguided definitions of economic terms of art such as “ex ante” and “hold-up,” while urging new inefficient rules for calculating damages for patent infringement. Stripped of the technicalities, the FTC Proposal would so reduce the costs of infringement by downstream ...


The Evolving Role Of Opinions Of Patent Counsel In Federal Circuit Cases, Lynda J. Oswald Aug 2011

The Evolving Role Of Opinions Of Patent Counsel In Federal Circuit Cases, Lynda J. Oswald

Lynda J Oswald

In recent years, an unexpected intersection has emerged in U.S. patent law in two types of cases addressing the roles of opinions of counsel: (1) those addressing willful infringement and enhanced damages; and (2) those addressing inducement of infringement. The U.S. Court of Appeals for the Federal Circuit appears to be weakening the role of patent opinions for willfulness determinations, but strengthening the role of such opinions in inducement cases. In light of these developments, companies doing business in the U.S., whether U.S.- or foreign-based, would do well as a strategic matter to err on the ...


Sampling, Looping, And Mashing . . . Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans Jul 2011

Sampling, Looping, And Mashing . . . Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans

Fordham Intellectual Property, Media and Entertainment Law Journal

This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship. For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently ...


Sampling, Looping, And Mashing … Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans Jul 2011

Sampling, Looping, And Mashing … Oh My!: How Hip Hop Music Is Scratching More Than The Surface Of Copyright Law, Tonya M. Evans

Tonya M. Evans

This article examines the deleterious impact of copyright law on music creation. It highlights hip hop music as an example of a genre significantly and negatively impacted by 1) the per se infringement rule applied in some instances to cases involving unauthorized sampling of sound recordings; and 2) traditional (and arguably erroneous) assumptions in copyright law and policy of independent creation and Romantic authorship.

For decades hip hop producers have relied on the innovative use of existing recordings (most of which are protected by copyright), to create completely new works. Specifically, cuttin’ and scratchin’, digital sampling, looping and (most recently ...


Forward: Symposium On Evolving The Court Of Appeals For The Federal Circuit And Its Patent Law Jurisprudence, Dennis D. Crouch Jun 2011

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.


Protecting Domestic Industries At The Itc, Colleen Chien Jun 2011

Protecting Domestic Industries At The Itc, Colleen Chien

Faculty Publications

The International Trade Commission (ITC) provides injunctive relief from imports that infringe intellectual property to “domestic industries.” Differences in opinion about what this term means have divided those who do and those who don’t practice their patents. Should they both have access to the ITC? This article reviews the statute, its history, and its application to this question. It agrees with the Commission’s finding in Coaxial Cable that the design and history of the statute favor activity that furthers the development and commercialization of technology. It suggests two changes to more closely align ITC practice with the statute ...


Crafting A 21st Century United States Patent And Trademark Office, David Kappos Jun 2011

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 ...


Unpredictability In Patent Law And Its Effect On Pharmaceutical Innovation, Christopher M. Holman Jun 2011

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 bright line rules; unpredictability associated with long-delayed clarification of critical and identifiable ambiguities in patent law; and perhaps worst of all, unpredictability that occurs when courts adopt a new interpretation of legal doctrine and apply it retroactively, to the detriment of the investment-backed expectations of patent owners. Part VI discusses how Congress and the United States Patent and Trademark Office (PTO) can ameliorate problems of unpredictability by taking a more active role in instituting changes in patent law.


Ongoing Confusion Over Ongoing Royalties, The, Mark A. Lemley Jun 2011

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 ...


To Construe Or Not To Construe: At The Interface Between Claim Construction And Infringement In Patent Cases, Jason R. Mudd Jun 2011

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 ...


Patent Law's Unpredictability Doctrine And The Software Arts, Greg R. Vetter Jun 2011

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 the ...


Promoting The Progress: Three Decades Of Patent Jurisprudence In The Court Of Appeals For The Federal Circuit, Damon C. Andrews Jun 2011

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 ...


Whose Body Is It Anyway? Human Cells And The Strange Effects Of Property And Intellectual Property Law, Robin C. Feldman May 2011

Whose Body Is It Anyway? Human Cells And The Strange Effects Of Property And Intellectual Property Law, Robin C. Feldman

Robin C Feldman

Whatever else I might own in this world, it would seem intuitively obvious that I own the cells of my body. Where else could the notion of ownership begin, other than with the components of the tangible corpus that all would recognize as "me?" The law, however, does not view the issue so neatly and clearly, particularly when cells are no long in your body. As so often happens in law, we have reached this point, not by design, but by the piecemeal development of disparate notions that, when gathered together, form a strange and disconcerting picture. 

This article examines ...


“I’M Litigatin’ It”: Infringement, Dilution, And Parody Under The Lanham Act, Patrick Emerson May 2011

“I’M Litigatin’ It”: Infringement, Dilution, And Parody Under The Lanham Act, Patrick Emerson

Northwestern Journal of Technology and Intellectual Property

No abstract provided.


Strategies For Trade Secrets Protection In China, J. Benjamin Bai, Guoping Da May 2011

Strategies For Trade Secrets Protection In China, J. Benjamin Bai, Guoping Da

Northwestern Journal of Technology and Intellectual Property

No abstract provided.


Prometheus Laboratories V. Mayo Clinic’S Gift To The Biotech Industry: A Study Of Patent-Eligibility Of Medical Treatment And Diagnostic Methods After Bilski, Dan Hoang May 2011

Prometheus Laboratories V. Mayo Clinic’S Gift To The Biotech Industry: A Study Of Patent-Eligibility Of Medical Treatment And Diagnostic Methods After Bilski, Dan Hoang

Northwestern Journal of Technology and Intellectual Property

No abstract provided.


The Role Of Dna Patents In Genetic Test Innovation And Access, Andrew S. Robertson May 2011

The Role Of Dna Patents In Genetic Test Innovation And Access, Andrew S. Robertson

Northwestern Journal of Technology and Intellectual Property

No abstract provided.


Timing The Choice Of Law By Contract, Dolly Wu May 2011

Timing The Choice Of Law By Contract, Dolly Wu

Northwestern Journal of Technology and Intellectual Property

No abstract provided.


P2p File-Sharing And The Making Available War, Diana Sterk May 2011

P2p File-Sharing And The Making Available War, Diana Sterk

Northwestern Journal of Technology and Intellectual Property

No abstract provided.


Causing Infringement, Mark Bartholomew, Patrick F. Mcardle May 2011

Causing Infringement, Mark Bartholomew, Patrick F. Mcardle

Journal Articles

Recent appellate decisions reveal a chaotic contributory infringement doctrine that offers little direction to entrepreneurs trying to balance digital innovation with legal strictures. Aware of the problem, both the Supreme Court and legal scholars urge a modeling of contributory infringement on common law tort rules. But common law tort is an enormous subject. Without further instruction, the subject area is too vast and contradictory to offer a realistic template for reform. Even when the narrower body of tort law for secondary actors is consulted, there is still too much variation in the existing precedent to provide the necessary guidance. Instead ...


Patent Marking Estoppel And The Patent Licensee, Scott D. Locke Apr 2011

Patent Marking Estoppel And The Patent Licensee, Scott D. Locke

Northwestern Journal of Technology and Intellectual Property

No abstract provided.