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Full-Text Articles in Law
Commercial Success And Patent Standards: Economic Perspectives On Innovation, Robert P. Merges
Commercial Success And Patent Standards: Economic Perspectives On Innovation, Robert P. Merges
Robert P Merges
This Article criticizes a recent line of patent decisions in which the Court of Appeals for the Federal Circuit has considered evidence of an innovation's commercial success in deciding whether to award a patent to the inn innovator. Professor Merges briefly reviews the history of patent law and concludes that one of its principle purposes is to reward "invention," or the achievement of a significant technical advance and thereby to spur innovative technological development. He notes, however, that recently, the Federal Circuit has begun to consider "secondary factors," including the financial success of a commercialized invention, and the extent to …
High Technology Entrepreneurs And The Patent System: Results Of The 2008 Berkeley Patent Survey, Stuart J. H. Graham, Robert P. Merges, Pam Samuelson, Ted Sichelman
High Technology Entrepreneurs And The Patent System: Results Of The 2008 Berkeley Patent Survey, Stuart J. H. Graham, Robert P. Merges, Pam Samuelson, Ted Sichelman
Robert P Merges
No abstract provided.
Unwinding Sony, Peter S. Menell, David Nimmer
Private Law And The Future Of Patents, Oskar Liivak
Private Law And The Future Of Patents, Oskar Liivak
Oskar Liivak
As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just not compatible with private law and patent doctrine should reflect a pure public law theoretical basis. I agree that today's dominant patent theory is incompatible with private law principles. Yet agreeing with that inherent incompatibility does not imply that doctrine needs to be reformed. There is …
The Pull Of Patents, Brett M. Frischmann
“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
Catherine Fisk
A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated …
Do Patent Challenges Increase Competition?, Stephen Yelderman
Do Patent Challenges Increase Competition?, Stephen Yelderman
Stephen Yelderman
As a general rule, judges and scholars believe settlement is a good thing. But for nearly a century, the Supreme Court has said that patent litigation is categorically different, since it offers the chance to increase competition by freeing the public from the burdens of a monopoly. Based on this theory, and in the hopes of seeing more patent litigation fought to completion, the Court has overturned long-standing common-law doctrines, declined to enforce otherwise-valid contracts, and—in the recent case of Federal Trade Commission v Actavis, Inc—subjected patent settlements to scrutiny under the antitrust laws. Similar reasoning has resulted in legislative …