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Full-Text Articles in Law
Patently Impossible, Sean B. Seymore
Patently Impossible, Sean B. Seymore
Vanderbilt Law Review
The quest to achieve the impossible fuels creativity, spawns new fields of inquiry, illuminates old ones, and extends the frontiers of knowledge. It is difficult, however, to obtain a patent for an invention which seems impossible, incredible, or conflicts with well- established scientific principles. The principal patentability hurdle is operability, which an inventor cannot overcome if there is reason to doubt that the invention can really achieve the intended result. Despite its laudable gatekeeping role, this Article identifies two problems with the law of operability. First, though objective in theory, the operability analysis rests on subjective credibility assessments. These credibility …
Efficient Uncertainty In Patent Interpretation, Harry Surden
Efficient Uncertainty In Patent Interpretation, Harry Surden
Washington and Lee Law Review
Research suggests that widespread uncertainty over the scopes of issued patents creates significant costs for third-party firms and may decrease innovation. This Article addresses the scope uncertainty issue from a theoretical perspective by creating a model of patent claim scope uncertainty. It is often difficult for third parties to determine the legal coverage of issued patents. Scope underdetermination exists when the words of a patent claim are capable of a broad range of plausible scopes ex ante in light of the procedures for interpreting patents. Underdetermination creates uncertainty about claim coverage because a lay interpreter cannot know which interpretation will …
Patents, Presumptions, And Public Notice, Timothy R. Holbrook
Patents, Presumptions, And Public Notice, Timothy R. Holbrook
Indiana Law Journal
Patents are peculiar legal instruments in that they contain both technical and legal information. This Janus-like nature of the documents is important because they serve the legal purpose of affording the owner the right to exclude others from practicing the invention, and third parties need to be able to assess the scope of that right. At the same time, through the patent’s disclosure, the document is intended to contribute to the storehouse of technical knowledge. Superficially, patents are generally viewed through the eyes of the hypothetical person having ordinary skill in the art (PHOSITA), patent law’s “reasonable person.” Unfortunately, the …
Markedly Low: An Argument To Raise The Burden Of Proof For Patent False Marking, Caroline Ayres Teichner
Markedly Low: An Argument To Raise The Burden Of Proof For Patent False Marking, Caroline Ayres Teichner
Chicago-Kent Law Review
The Federal Circuit's liberal treatment of the patent false-marking statute, 35 U.S.C. § 292, has created a climate in which opportunistic qui tam plaintiffs facing a low burden of proof can recover potentially enormous sums of money under the statute with no showing of competitive injury. This note argues that the Federal Circuit erred by ruling that plaintiffs must prove the key element of false-marking claims—namely, intent to deceive the public—by a mere preponderance of the evidence, and further contends that the court should have adopted the clear and convincing standard instead. Support for this elevated burden of proof can …
Secret Prior Art: Does Prior Art In A Provisional Patent Application Bar Future Patents, Kyle Gottuso
Secret Prior Art: Does Prior Art In A Provisional Patent Application Bar Future Patents, Kyle Gottuso
Missouri Law Review
This Note will examine whether prior art found in a provisional patent application can (and should) act as prior art to defeat a subsequent application by a second inventor. In looking at this issue, this Note will ask if Giacomini can be reconciled with the principles and policies that underlie patent law. To do so, this Note will first review the facts and holding of Giacomini. Then this Note will survey the patent statutes, giving particular attention to those statutes that deal with priority and prior art. Next, this Note will examine the reasoning of the Giacomini court. Finally, this …
Gender And Invention: Mapping The Connections, Victoria Phillips
Gender And Invention: Mapping The Connections, Victoria Phillips
American University Journal of Gender, Social Policy & the Law
No abstract provided.
Examining Exclusion In Woman-Inventor Patenting: A Comparison Of Educational Trends And Patent Data In The Era Of Computer Engineer Barbie, Annette I. Kahler
Examining Exclusion In Woman-Inventor Patenting: A Comparison Of Educational Trends And Patent Data In The Era Of Computer Engineer Barbie, Annette I. Kahler
American University Journal of Gender, Social Policy & the Law
No abstract provided.
Implementation, Or The Possible Lack Thereof, Of The Bilski Supreme Court Decision, Abby Bhattacharyya
Implementation, Or The Possible Lack Thereof, Of The Bilski Supreme Court Decision, Abby Bhattacharyya
Journal of Business & Technology Law
No abstract provided.
Can The Patent Office Be Fixed?, Mark A. Lemley
Can The Patent Office Be Fixed?, Mark A. Lemley
Marquette Intellectual Property Law Review
The Patent and Trademark Office (PTO) finds itself caught in a vise. On the one hand, it has been issuing a large number of dubious patents over the past twenty years, particularly in the software and electronic commerce space. It issues many more patents than its counterparts in Europe and Japan; roughly three-fourths of applicants ultimately get one or more patents, a higher percentage than in other countries. Complaints about those bad patents are legion, and indeed, when they make it to litigation, they are quite often held invalid. Even the ones that turn out to be valid are often …
Medimmune V. Genentech: A Game-Theoretic Analysis Of The Supreme Court’S Continued Assault On The Patentee, Nicholas G. Smith
Medimmune V. Genentech: A Game-Theoretic Analysis Of The Supreme Court’S Continued Assault On The Patentee, Nicholas G. Smith
Marquette Intellectual Property Law Review
In 2007, the Supreme Court decided MedImmune v. Genentech. This decision changed the landscape of the patent licensing field by holding that a licensee in good standing may challenge the validity of a patent in a declaratory judgment action. By adding to the cost of entering a license agreement, MedImmune erodes one characteristic of a patent from which it derives its worth—the patent’s ability to be licensed. Unfortunately, this has decreased the incentive to innovate by decreasing the value of a patent. This Comment seeks to illustrate, using a game theoretic model, how MedImmune will increase litigation against patent …
Patent Claim Obviousness In Jury Trials: Where's The Analysis?, Wesley A. Demory
Patent Claim Obviousness In Jury Trials: Where's The Analysis?, Wesley A. Demory
Journal of Business & Technology Law
No abstract provided.
Patenting Genes And Genetic Methods: What's At Stake?, Eileen M. Kane
Patenting Genes And Genetic Methods: What's At Stake?, Eileen M. Kane
Journal of Business & Technology Law
No abstract provided.
The Geneticists' Approach To Bilski, Joann A. Boughman, Kyle M. Brown
The Geneticists' Approach To Bilski, Joann A. Boughman, Kyle M. Brown
Journal of Business & Technology Law
No abstract provided.
Facilitating Patient Access To Patent-Protected Genetic Testing, Janice M. Mueller
Facilitating Patient Access To Patent-Protected Genetic Testing, Janice M. Mueller
Journal of Business & Technology Law
No abstract provided.
Clear But Unconvincing: The Federal Circuit's Invalidity Standard, David O. Taylor
Clear But Unconvincing: The Federal Circuit's Invalidity Standard, David O. Taylor
Fordham Intellectual Property, Media and Entertainment Law Journal
The Federal Circuit’s standard for proving invalidity of patent claims is clear. The Federal Circuit always requires clear and convincing evidence to prove that a patent claim is invalid. The rationale behind this standard, however, is unconvincing. There are significant reasons to believe that the Patent Office rarely considers the most relevant prior art and that, instead, alleged infringers often find prior art that is more relevant than the prior art considered by the Patent Office. It defies logic to apply the clear and convincing burden where the Patent Office considered only prior art that is less relevant than the …
Tacit Knowledge Transfer With Patent Law: Exploring Clean Technology Transfers, Margaret Mcinerney
Tacit Knowledge Transfer With Patent Law: Exploring Clean Technology Transfers, Margaret Mcinerney
Fordham Intellectual Property, Media and Entertainment Law Journal
No abstract provided.
Business Interests Cases - October 2009 Term, Leon D. Lazer Honorable, Leon Friedman
Business Interests Cases - October 2009 Term, Leon D. Lazer Honorable, Leon Friedman
Touro Law Review
No abstract provided.
The Researcher Rat's Culture And Ease Of Access To The Publication Lever: Implications For The Patentability Of University Scientific Research, Joshua R. Nightingale
The Researcher Rat's Culture And Ease Of Access To The Publication Lever: Implications For The Patentability Of University Scientific Research, Joshua R. Nightingale
West Virginia Law Review
No abstract provided.
“Selling” Women: Lillian Gilbreth, Gender Translation, And Intellectual Property, Rayvon Fouché, Sharra Vostral
“Selling” Women: Lillian Gilbreth, Gender Translation, And Intellectual Property, Rayvon Fouché, Sharra Vostral
American University Journal of Gender, Social Policy & the Law
No abstract provided.
Do Patents Have Gender?, Dan L. Burk
Do Patents Have Gender?, Dan L. Burk
American University Journal of Gender, Social Policy & the Law
No abstract provided.