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Full-Text Articles in Intellectual Property Law
The "Broadest Reasonable Interpretation" And Applying Issue Preclusion To Administrative Patent Claim Construction, Jonathan I. Tietz
The "Broadest Reasonable Interpretation" And Applying Issue Preclusion To Administrative Patent Claim Construction, Jonathan I. Tietz
Michigan Law Review
Inventions are tangible. Yet patents comprise words, and words are imprecise. Thus, disputes over patents involve a process known as “claim construction,” which formally clarifies the meaning of a patent claim’s words and, therefore, the scope of the underlying property right. Adversarial claim construction commonly occurs in various Article III and Article I settings, such as district courts or the Patent Trial and Appeal Board (PTAB). When these proceedings ignore each other’s claim constructions, a patent’s scope can become inconsistent and unpredictable. The doctrine of issue preclusion could help with this problem. The Supreme Court recently reemphasized in B & …
Reinventing Copyright And Patent, Abraham Bell, Gideon Parchomovsky
Reinventing Copyright And Patent, Abraham Bell, Gideon Parchomovsky
Michigan Law Review
Intellectual property systems all over the world are modeled on a one-size-fitsall principle. However important or unimportant, inventions and original works receive the same scope of protection, for the same period of time, backed by the same variety of legal remedies. Essentially, all intellectual property is equal under the law. This equality comes at a heavy price, however. The equality principle gives all creators access to the same remedies, even when those remedies create perverse litigation incentives. Moreover, society overpays for innovation through more monopoly losses than are strictly necessary to incentivize production. In this Article, we propose a solution …
The Myth Of The Sole Inventor, Mark A. Lemley
The Myth Of The Sole Inventor, Mark A. Lemley
Michigan Law Review
The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented. But the canonical story of the lone genius inventor is largely a myth. Surveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. The result is a real problem for classic theories of patent law. …
The Angel Is In The Big Picture: A Response To Lemley, Samson Vermont
The Angel Is In The Big Picture: A Response To Lemley, Samson Vermont
Michigan Law Review
An invention within close reach of multiple inventors differs from an invention within distant reach of a lone inventor. The differences between these two archetypes of invention -"reinventables" and "singletons"- remain unexploited under current U.S. law. Should we reform the law to exploit the differences? Mark Lemley and I agree that we should. To date, those economists who have closely examined the issue concur. What are the differences between reinventables and singletons? First, reinventables can be brought into existence with incentives of lower magnitude. This suggests that we can obtain reinventables at a lower price than we currently pay-i.e., with …
Planting A Standard: Proposing A Broad Reading Of In Re Elsner, Alicia L. Frostick
Planting A Standard: Proposing A Broad Reading Of In Re Elsner, Alicia L. Frostick
Michigan Law Review
This Note will show that one can read Elsner broadly to encompass both plant-type and widget-type inventions, and that applying Elsner to both plants and widgets is within the current statutory framework and case law. Such a reading would change the § 102 bar for inventions patentable under § 10i29 (hereinafter referred to as "widgets") as well as for plants. Part I of this Note argues that congressional sources require a flexible test-one that does not prejudice any objects under the Patent Act. Part II discusses the judicial interpretation of the Patent Act prior to Elsner in order to argue …
Definiteness And Particularity In Patent Claims, William Redin Woodward
Definiteness And Particularity In Patent Claims, William Redin Woodward
Michigan Law Review
To the uninitiated the professional jargon of patents, and particularly of patent claims, is somewhat mystifying even in the most ordinary cases. The profession likes to define the elements of apparatus as "means" for this, "means" for that and "means" for the other. Words like "plurality," "predetermined" and "comminuted" find remarkably frequent use by patent attorneys. And the habit of using out-of-the-way verbiage may lead the practitioner by force of habit to pass over a simple term like "sleeping car" in favor of a more elaborate phrase like "a communal vehicle for the dormitory accommodation of nocturnal viators." But it …
Recent Developments In Patent Law, Arthur M. Smith
Recent Developments In Patent Law, Arthur M. Smith
Michigan Law Review
The framers of the Federal Constitution shared with Thomas Jefferson his "wish to see new inventions encouraged, and old ones brought again info useful notice." Their concern for the public welfare caused many, including Jefferson, to question the wisdom of using a limited monopoly to encourage such inventions.
Rescission - Constructive Trusts - Tracing Misappropriated Funds, Eugene T. Kinder
Rescission - Constructive Trusts - Tracing Misappropriated Funds, Eugene T. Kinder
Michigan Law Review
Defendant, president of plaintiff corporation, misappropriated over $1,000,000 in corporate funds, investing $79,000 thereof in government bonds. With the proceeds from these bonds, defendant set up two corporations, all the capital stock of which was owned by defendant's son and was purchased with plaintiff's money. One Greenslade was hired by defendant, and paid with a part of the misappropriated funds, to experiment with locomotive staybolt testing devices. As a result of the experimentation, Greenslade invented and patented several devices, transferring ownership thereof to one of the two corporations. In a prior action, brought without knowledge of the disposition of the …
Patents - Option Of The Court To Permit Contempt Proceedings Or To Require A New Suit
Patents - Option Of The Court To Permit Contempt Proceedings Or To Require A New Suit
Michigan Law Review
A final injunction was issued by the federal district court of Massachusetts against A, a Michigan corporation. The terms of the injunction were that A should not make, use, or sell lasts, or any colorable imitation thereof, embodying the invention covered by certain enumerated claims belonging to the present complainant. In a subsequent term of court the complainant alleged a violation of the injunction and brought contempt proceedings against A in the district court. The alleged infringement consisted in the manufacture and sale of a device which was slightly changed in form from that which the defendant had made prior …
Curb-Stone Patent Opinions, Dwight B. Cheever
Curb-Stone Patent Opinions, Dwight B. Cheever
Michigan Law Review
Having been asked almost every day for the last nine years for offhand-commonly called curb-stone-opinions on one or more of certain very elementary propositions in Patent Law, it has occurred to me that perhaps a discussion of some of these questions would be of more practical value to the readers of this magazine than a comprehensive discussion of a more elaborate subject.
Rights Of Employer And Employee To Inventions Made By Either During The Relationship, Dwight B. Cheever
Rights Of Employer And Employee To Inventions Made By Either During The Relationship, Dwight B. Cheever
Michigan Law Review
The interesting and difficult question not infrequently arises, what are the respective rights of employer and employee to inventions made by either during the continuance of the relation. While the constantly occurring cases are almost always complicated by special and peculiar facts which must modify to a greater or less extent the decision to be reached in the particular case, it is believed that the following review of the controlling principles and leading cases on the subiect will be of assistance. Since the courts have repeatedly said that "no one is-antitled to a patent for that which he did not …