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Articles 211 - 240 of 550
Full-Text Articles in Intellectual Property Law
A Solution-Based Approach To Rejecting Trademark Licenses In Bankruptcy, 13 J. Marshall Rev. Intell. Prop. L. 621 (2014), Chandra J. Critchelow
A Solution-Based Approach To Rejecting Trademark Licenses In Bankruptcy, 13 J. Marshall Rev. Intell. Prop. L. 621 (2014), Chandra J. Critchelow
UIC Review of Intellectual Property Law
The Seventh Circuit created a circuit split in bankruptcy law regarding the rejection of trademark licenses in its 2011 decision in Sunbeam Prods., Inc. v. Chi. Am. Mfg. LLC. All other courts have held that when a trademark license is rejected under 11 U.S.C. § 365 in a Chapter 11 bankruptcy proceeding, the licensee may no longer use the licensed trademark. All other forms of intellectual property are subject to § 365(n), which prevents automatic termination of the licensee’s rights. In Sunbeam, the court held that the rejection of a trademark license under § 365 does not automatically terminate the …
Implementing And Enforcing Intellectual Property Rights In West Africa, 13 J. Marshall Rev. Intell. Prop. L. 782 (2014), Ganiyou Gassikia
Implementing And Enforcing Intellectual Property Rights In West Africa, 13 J. Marshall Rev. Intell. Prop. L. 782 (2014), Ganiyou Gassikia
UIC Review of Intellectual Property Law
The World Trade Organization (WTO) created the Trade-Related Intellectual Property Rights (TRIPS) Agreement to monitor and enforce intellectual property rights around the world, to uneven success. There are problems with enforcement in many developing countries, specifically countries in West Africa. By some estimates, for example, the majority of drugs used in those countries are counterfeit, which can lead to serious injury or even death for those using the counterfeit drugs. Stronger IP enforcement not only encourages innovation but can serve to reduce the risk of death of those in developing countries. There are major challenges facing implementation of IP rights …
The Consistently Inconsistent "Instance And Expense" Test: An Injustice To Comic Books, 14 J. Marshall Rev. Intell. Prop. L. 91 (2014), Thomas Deahl Ii
The Consistently Inconsistent "Instance And Expense" Test: An Injustice To Comic Books, 14 J. Marshall Rev. Intell. Prop. L. 91 (2014), Thomas Deahl Ii
UIC Review of Intellectual Property Law
Joe Simon once said that “we always felt, we wuz robbed.” He is not alone. This article will discuss Jack Kirby’s estate’s case against Marvel and how the current state of the law robs creators of the rights to their own works. The evaluation of case law will show that the application of the ‘instance and expense’ test creates an injustice of inconsistent results in litigation, where creators attempt to regain control of their works. If the court continues to inconsistently apply the law to these work-for-hire cases, then the Supreme Court or Congress needs to address the intended purpose …
Functional Elements In Patent Claims, As Construed By The Patent Trial And Appeal Board (Ptab), 13 J. Marshall Rev. Intell. Prop. L. 251 (2014), Tom Brody
UIC Review of Intellectual Property Law
Claims in patents include both structural elements and functional elements. Functional elements occur in various categories: (1) Functional elements that mandate a particular range of structures that are able to perform the required function; (2) Functional elements that mandate a particular cooperation between structures; (3) Compound noun/function functional elements, (4) Active-type functional elements; (5) “Capable of”-type functional elements, (6) Single-word structural elements that are typical nouns, but that are also functional elements, e.g., “plasticizer,” and (7) Quasi-functional elements that lack any patentable weight. This article discloses which of these types of functional elements confers the broadest claim scope, and which …
Will Nanotechnology Products Be Impacted By The Federal Courts’ “Product Of Nature’ Exception To Subject-Matter Eligibility Under 35 U.S.C. 101?, 13 J. Marshall Rev. Intell. Prop. L. 397 (2014), Laura W. Smalley
UIC Review of Intellectual Property Law
In 2013, the Supreme Court in Myriad held that DNA is a “product of nature” that is not patentable merely because it is isolated from the human body. The year before, the Supreme Court in Prometheus held that diagnostic tests that incorporate little more than a “law of nature” is not patent eligible. These two decisions altered the landscape of patent eligible subject matter under Section 101 of the patent statute. They not only impact the patent eligibility of isolated DNA or diagnostic tests, but they may also have far wider-ranging impact on other technological fields, including biotechnology and nanotechnology. …
Hatch-Waxman’S Safe-Harbor Provision For Pharmaceutical Development: A Free Ride For Patent Infringers?, 13 J. Marshall Rev. Intell. Prop. L. 445 (2014), Kate Y. Jung
UIC Review of Intellectual Property Law
The Safe-Harbor provision of the Hatch-Waxman Act allows generic drug manufacturers to use a patented invention during pre-market testing of generic drugs. However, the U.S. Court of Appeals for the Federal Circuit’s recent interpretation of the Safe-Harbor provision in Momenta Pharmaceuticals, Inc. v. Amphastar Pharmaceuticals, Inc. created controversy when it extended the Safe-Harbor exemption to post-FDA approval. This extension was done in an unprecedented manner and would “allow almost all activity by pharmaceutical companies to constitute ‘submission’ and therefore justify a free license to trespass.” The U.S. Supreme Court has yet to settle this matter, and courts are now faced …
Review And Reflection: Copyright Hearings And Related Discourse In The Nation’S Capital, 13 J. Marshall Rev. Intell. Prop. L. 487 (2014), Maria A. Pallante
Review And Reflection: Copyright Hearings And Related Discourse In The Nation’S Capital, 13 J. Marshall Rev. Intell. Prop. L. 487 (2014), Maria A. Pallante
UIC Review of Intellectual Property Law
On February 28, 2014, the Register of Copyrights of the United States and Director of the U.S. Copyright Office Maria A. Pallante delivered a keynote speech on the copyright hearings and related discourse in the nation’s capital. The speech was given at The John Marshall Law School’s 58th Annual Intellectual Property Conference. This article is based on her speech at the Conference.
What Reversals And Close Cases Reveal About Claim Construction: The Sequel, 13 J. Marshall Rev. Intell. Prop. L. 525 (2014), Thomas Krause, Heather Auyang
What Reversals And Close Cases Reveal About Claim Construction: The Sequel, 13 J. Marshall Rev. Intell. Prop. L. 525 (2014), Thomas Krause, Heather Auyang
UIC Review of Intellectual Property Law
This article updates and elaborates on last year’s What Close Cases and Reversals Reveal About Claim Construction at the Federal Circuit. Like the previous article, this article provides empirical insight into claim construction at the Federal Circuit, by approaching the question with two unique and distinct subsets of data: (1) “reversals” of all district court claim construction decisions since Phillips v. AWH, and (2) “close cases,” or post-Markman claim construction cases that had dissents in which a currently-active judge participated. The past year’s reversals data once again confirms that district courts persistently favor narrow claim interpretations in cases in which …
They’Re Playing Our Song! The Promise And The Perils Of Music Copyright Litigation, 13 J. Marshall Rev. Intell. Prop. L. 555 (2014), William R. Coulson
They’Re Playing Our Song! The Promise And The Perils Of Music Copyright Litigation, 13 J. Marshall Rev. Intell. Prop. L. 555 (2014), William R. Coulson
UIC Review of Intellectual Property Law
Music copyright cases are unique, costly, difficult, and complex. It was no different in the case where Ray Repp, a music composer for a Catholic publishing house, filed suit against Andrew Lloyd Webber, the famed British composer most famous for such Broadway hits as Cats and Phantom of the Opera. Repp alleged that Webber’s “Phantom Song,” the theme music for the Phantom of the Opera musical, infringed Repp’s song “Till You,” which he wrote and copyrighted almost a decade earlier. Webber in turn claimed that Repp’s “Till You” was in fact a copy of an even earlier Webber song, “Close …
Aerevolution: Why We Should, Briefly, Embrace Unlicensed Online Streaming Of Retransmitted Broadcast Television Content, 13 J. Marshall Rev. Intell. Prop. L. 577 (2014), Bradley Ryba
UIC Review of Intellectual Property Law
The United States has long recognized broadcast television programming’s importance to the public’s information and entertainment needs. Accordingly, Congress has historically offered strong copyright protections for broadcast television networks. Those strong protections allowed broadcast networks to withstand business threats from innovations like cable television and VCRs. However, Congress’ recent silence on DVRs and cloud computing technology has allowed an entrepreneur to create the networks’ next biggest threat, Aereo. The creators of Aereo and similar businesses designed their services specifically around ambiguities within copyright law that could allow them to transmit networks’ content without paying the otherwise necessary consent fees. These …
Streaming Into The Future: Why Legislation And Technology Have Opened Pandora’S Box For The Recording Industry And The Webcasting Services, 13 J. Marshall Rev. Intell. Prop. L. 649 (2014), Rachael Stack
UIC Review of Intellectual Property Law
Today, music is everywhere, but this was not always the case. Listeners are surrounded by endless access to libraries and playlists from the advancement in technology. With the rapid technological advancements, Copyright law has been left behind at a stand still. Since the enactment of the Copyright Act, sound recordings have received less favorable treatment compared to their music counterpart. Sound recording copyrights are afforded digital performance royalties when broadcasted on popular Internet streaming services, like Pandora. In the last few years, music streaming has become more popular among listeners and thus, more sound recording royalties have been distributed; but, …
Adopting Pharmacogenomics And Parenting Repurposed Molecules Under The Orphan Drug Act: A Cost Dilemma?, 13 J. Marshall Rev. Intell. Prop. L. 667 (2014), David C. Babaian
Adopting Pharmacogenomics And Parenting Repurposed Molecules Under The Orphan Drug Act: A Cost Dilemma?, 13 J. Marshall Rev. Intell. Prop. L. 667 (2014), David C. Babaian
UIC Review of Intellectual Property Law
The business model under which the pharmaceutical industry has operated in the recent past has become untenable. The era that has seen a consistent pipeline of blockbuster medicines for common chronic diseases is waning. New paradigms for more efficient and more economical drug development are being sought and implemented. Recent growth both in the repurposing of existing drugs and in the orphan product market has signaled the new hope for success and profit. New technology and the promise of personalized medicine augment the sense of optimism in this time of complementary transition in the wider healthcare industry. Yet, are the …
Pinwheel Of Fortune, 13 J. Marshall Rev. Intell. Prop. L. 761 (2014), James Ming Chen
Pinwheel Of Fortune, 13 J. Marshall Rev. Intell. Prop. L. 761 (2014), James Ming Chen
UIC Review of Intellectual Property Law
This paper examines public health law in the context of prospect theory, the leading behavioral account of risk aversion and risk-seeking. The paper first demonstrates how international environmental law can be mapped along prospect theory’s risk-seeking axis. It then completes this picture of prospect theory by examining National Federation of Independent Business v. Sebelius, which upheld the constitutionality of the Patient Protection and Affordable Care Act (“PPACA”). Although Sebelius upheld the PPACA as an exercise of the federal government’s taxing authority, it reasoned that a directive aimed at uninsured individuals to buy health insurance lay beyond the power of Congress …
A Scientific Approach To Intellectual Property And Health: Innovation, Access, And A Forgotten Corner Of The Universal Declaration Of Human Rights, 13 J. Marshall Rev. Intell. Prop. L. 794 (2014), Adam Houston
UIC Review of Intellectual Property Law
For years, there has been vigorous debate over the relationship between intellectual property and health, especially in the context of pharmaceutical patents. Despite numerous attempts to strike a balance between innovation and access, however, few have looked to Article 27 of the Universal Declaration of Human Rights for guidance. Article 27, and its further elaboration and codification under Article 15 of the International Covenant on Economic, Social, and Cultural Rights, explicitly address this balance by pairing the right of everyone “to share in scientific advancement and its benefits” with a similarly universal right of authors to “material interests resulting” from …
Protecting Traditional Knowledge In International Intellectual Property Law: Imperatives For Protection And Choice Of Modalities, 14 J. Marshall Rev. Intell. Prop. L. 25 (2014), Tesh Dagne
UIC Review of Intellectual Property Law
The need for protecting traditional knowledge (TK) has been acknowledged in discussion and negotiations under the umbrella of a number of inter-governmental organizations that deal with biodiversity, the environment, indigenous peoples’ rights, human rights, food and agriculture, among others. It has, however, proved difficult to arrive at a consensus on the proper modality that can serve the needs and desires of Indigenous and Local Communities (ILCs) in their economic and cultural participation. The article examines the imperatives for the protection of TK and explores the modalities of TK protection at the international level for regulating the control of, access to …
Does Reckless Indifference Suffice For A Cancellation Proceeding Predicated On Fraud?, 14 J. Marshall Rev. Intell. Prop. L. 50 (2014), Tal Benschar, Milton Springut
Does Reckless Indifference Suffice For A Cancellation Proceeding Predicated On Fraud?, 14 J. Marshall Rev. Intell. Prop. L. 50 (2014), Tal Benschar, Milton Springut
UIC Review of Intellectual Property Law
The Lanham Act provides for cancellation of a trademark “registration [that] was obtained fraudulently.” 15 U.S.C. § 1064(3) (2012). The Federal Circuit has held that such requires a showing of a subjective intent to deceive the Trademark Office. In re Bose Corp., 580 F.3d 1240, 1243, 91 U.S.P.Q.2d (BNA) 1938 (Fed. Cir. 2009). However, the Bose court left open whether reckless disregard for the truth suffices to make out a case of fraud. This article answers that question in the affirmative. We show that at common law, reckless disregard for the truth has long been recognized as sufficient to make …
Gender Diversity In The Patent Bar, 14 J. Marshall Rev. Intell. Prop. L. 67 (2014), Saurabh Vishnubhakat
Gender Diversity In The Patent Bar, 14 J. Marshall Rev. Intell. Prop. L. 67 (2014), Saurabh Vishnubhakat
UIC Review of Intellectual Property Law
This article describes the state of gender diversity across technology and geography within the U.S. patent bar. The findings rely on a new gender-matched dataset, the first public dataset of its kind, not only of all attorneys and agents registered to practice before the United States Patent and Trademark Office, but also of attorneys and agents on patents granted by the USPTO. To enable follow-on research, the article describes all data and methodology and offers suggestions for refinement. This study is timely in view of renewed interest about the participation of women in the U.S. innovation ecosystem, notably the provision …
Allocation Of New Top-Level Domain Names And The Effect Upon Religious Freedom, 12 J. Marshall Rev. Intell. Prop. L. 697 (2013), N. Cameron Russell
Allocation Of New Top-Level Domain Names And The Effect Upon Religious Freedom, 12 J. Marshall Rev. Intell. Prop. L. 697 (2013), N. Cameron Russell
UIC Review of Intellectual Property Law
The monopoly provided when trademark protection is given to a religious name is in direct tension with an individual’s right to freedom of religion. One’s ability to freely use a particular religious name in spiritual practice, and to identify one’s belief system with the words that commonly describe it, are weakened when trademark law designates just one owner. This Article explores the impact of the impending issuance of brand new top-level domains utilizing religious names, and how the providing of an exclusive right for one entity to govern over a religious top-level domain, in addition to the existence of a …
Pushing Ahead With The Pro Bono Assistance Program, 12 J. Marshall Rev. Intell. Prop. L. 286 (2013), John Calvert
Pushing Ahead With The Pro Bono Assistance Program, 12 J. Marshall Rev. Intell. Prop. L. 286 (2013), John Calvert
UIC Review of Intellectual Property Law
Lawyers often contribute their time and energy helping the under-resourced through pro bono work, whether because it’s required of them or because of a personal desire to assist those less fortunate. But until 2011, few, if any programs were available for IP Professionals to volunteer their time for patent legal services, leaving them to contribute to areas of law outside their expertise. A group of IP law experts from LegalCORPS and a pro bono program created by the America Invents Act (AIA) has changed that. In this brief Article, John Calvert, author of the AIA provision that created the USPTO …
Patent Portfolio Strategy For The America Invents Act, 12 J. Marshall Rev. Intell. Prop. L. 289 (2013), George Wheeler
Patent Portfolio Strategy For The America Invents Act, 12 J. Marshall Rev. Intell. Prop. L. 289 (2013), George Wheeler
UIC Review of Intellectual Property Law
The Leahy-Smith America Invents Act made significant changes to U.S. patent law when it was enacted on September 16, 2011. Some provisions did not immediately take effect, however, and arguably the most important of these delayed provisions are the new rules under section 102 relating to prior art and the transition from a “first to invent” system to a “first inventor to file” system. This Article provides a guide to understanding the new rules relating to prior art and the impact these changes have on patent prosecution. Then, several strategies and techniques are discussed for managing a patent portfolio in …
On Measuring The Expertise Of Patent-Pilot Judges: Encouraging Enhancement Of Claim-Construction Uniformity, 12 J. Marshall Rev. Intell. Prop. L. 309 (2013), Etan S. Chatlynne
On Measuring The Expertise Of Patent-Pilot Judges: Encouraging Enhancement Of Claim-Construction Uniformity, 12 J. Marshall Rev. Intell. Prop. L. 309 (2013), Etan S. Chatlynne
UIC Review of Intellectual Property Law
A Pilot Program to “encourage enhancement of expertise” in patent cases among district judges recently got underway in the federal courts. The program is designed to funnel patent cases to judges who volunteer to become “pilot judges.” The idea is that as these judges hear more patent cases and become more familiar with patent law, they will be able to craft claim constructions and opinions that are increasingly likely to survive the scrutiny of the Court of Appeals for the Federal Circuit. Unfortunately, the Federal Circuit’s jurisprudence may itself encumber these efforts because of a split among the Federal Circuit …
The Trademark/Domain Name Protection War: A Comparative Study Of The U.S., Udrp And Taiwanese Law, 12 J. Marshall Rev. Intell. Prop. L. 350 (2013), Chih-Hong (Henry) Tsai
The Trademark/Domain Name Protection War: A Comparative Study Of The U.S., Udrp And Taiwanese Law, 12 J. Marshall Rev. Intell. Prop. L. 350 (2013), Chih-Hong (Henry) Tsai
UIC Review of Intellectual Property Law
Trademarks have ancient origins, and a long developmental history that has informed and shaped modern approaches to trademark disputes. Many of these disputes are familiar. Yet others are a product of technological developments, such as the threats modern trademark owners face as a result of young and vibrant domain names. The United States Congress and the Internet Corporation for Assigned Names and Numbers (ICANN) have each attempted to address conflicts between trademarks and domain names, while Taiwan has not. After surveying the U.S. and ICANN attempts, and comparing each to existing Taiwanese law, this Article provides a set of recommendations …
The Biosimilars Act: The United States’ Entry Into Regulating Biosimilars And Its Implications, 12 J. Marshall Rev. Intell. Prop. L. 322 (2013), Shawn P. Gorman, Adrian Pishko, John Iwanicki, Judith Stone-Hulslander
The Biosimilars Act: The United States’ Entry Into Regulating Biosimilars And Its Implications, 12 J. Marshall Rev. Intell. Prop. L. 322 (2013), Shawn P. Gorman, Adrian Pishko, John Iwanicki, Judith Stone-Hulslander
UIC Review of Intellectual Property Law
The Patient Protection and Affordable Care Act is most well-known for creating a mandate requiring individuals to have health insurance. However, another provision of the Act, the Biologics Price Competition and Innovation Act, created a new process for companies to introduce biosimilars, products that are highly similar to licensed drugs in terms of purity, safety, and potency, but have minor differences in the inactive ingredients. This provision seeks to alleviate strain on companies introducing biosimilars by creating an abbreviated pathway for their approval by the Food and Drug Administration, similar to an Abbreviated New Drug Application under the Hatch-Waxman Act. …
As Seen On Tv: Your Compromising Cameo On National Reality Programming, 12 J. Marshall Rev. Intell. Prop. L. 403 (2013), Ryan Westerman
As Seen On Tv: Your Compromising Cameo On National Reality Programming, 12 J. Marshall Rev. Intell. Prop. L. 403 (2013), Ryan Westerman
UIC Review of Intellectual Property Law
The pop-culture phenomenon of reality television has taken over national programming. With the click of a remote, viewers can gain an inside look into the daily lives of celebrity families, toddler pageant queens, wealthy housewives, even pregnant teenagers. Reality television also profiles different professions: repo-men, pawn shop owners, and real estate agents all have television time slots. While it seems everyone is desperate for their fifteen minutes of fame, there are still those who wish to avoid the public spotlight. However, a recent Illinois ruling may make avoiding prime-time attention impossible for certain individuals caught on tape in compromising, and …
“Cyberanarchy” In The Digital Age: Developing A System Of Human (Copy)Rights, 12 J. Marshall Rev. Intell. Prop. L. 424 (2013), Michael L. Boyle
“Cyberanarchy” In The Digital Age: Developing A System Of Human (Copy)Rights, 12 J. Marshall Rev. Intell. Prop. L. 424 (2013), Michael L. Boyle
UIC Review of Intellectual Property Law
“Cyberanarchy,” broadly refers to the idea that legal regulation of the Internet is an infeasible objective. One prime example is current online enforcement mechanisms’ inability to quell copyright infringement. These mechanisms do little more than perpetuate a technological arms race between copyright holders and infringers. Moreover, with notable public relations failures, such as the RIAA lawsuits and digital rights management schemes, society has taken on a nonchalant attitude towards online infringement. Examining traditional justifications behind obedience to the law, this blasé attitude takes root in societal feelings of inadequacy both in “normative” and “instrumental” perspectives of justice. Normatively, there lacks …
#Bewareofovershare: Social Media Discovery And Importance In Intellectual Property Litigation, 12 J. Marshall Rev. Intell. Prop. L. 449 (2013), Jennifer K. Gregory
#Bewareofovershare: Social Media Discovery And Importance In Intellectual Property Litigation, 12 J. Marshall Rev. Intell. Prop. L. 449 (2013), Jennifer K. Gregory
UIC Review of Intellectual Property Law
As the use of social media continues to expand, lawyers will increasingly rely on evidence gleaned from social media sources. This is already true in several areas of litigation, including various types of intellectual property litigation. Thus far, the rules of civil procedure, evidence, and professional conduct have addressed many of the issues that arise regarding the acquisition and use of social media evidence. Lawyers should at least investigate social media usage by key parties in each particular case in order to be aware of what social media evidence could be available. Lawyers are also responsible for having a basic …
Mad Men Posing As Ordinary Consumers: The Essential Role Of Self-Regulation And Industry Ethics On Decreasing Deceptive Online Consumer Ratings And Reviews, 12 J. Marshall Rev. Intell. Prop. L. 462 (2013), Lucille M. Ponte
UIC Review of Intellectual Property Law
Technology provides consumers with new ways to avoid advertisements, such as fast forwarding through TV commercials and using filtering software to block pop-up ads. Accordingly brand sponsors and their advertising marketing firms have sought alternative methods to pierce through consumer resistance to ads. Social media offers an optimal platform to reach millions of consumers on a nearly daily basis who interact and often rely heavily on the reviews and rankings of fellow consumers. However, many of today’s branding campaigns now mask sponsored ads as ordinary consumer reviews or “Like” and “Don’t Like” responses to a service or product. Unbeknownst to …
Outspoken: Social Media And The Modern College Athlete, 12 J. Marshall Rev. Intell. Prop. L. 509 (2013), Meg Penrose
Outspoken: Social Media And The Modern College Athlete, 12 J. Marshall Rev. Intell. Prop. L. 509 (2013), Meg Penrose
UIC Review of Intellectual Property Law
The First Amendment to the United States Constitution grants American citizens the right to free speech. However, in the case of college athletes, this right is not without limitation. In exchange for the privilege of participating in college level athletics, college athletes voluntarily agree to terms that restrict their abilities to speak freely, specifically in the context of social media platforms. This article details situations in which college athletes have made offensive statements via social media for which they later needed to delete, explain, and apologize. These examples support the notion that restrictions on college athletes’ speech are not only …
The Emerging Reality Of Social Media: Erosion Of Individual Privacy Through Cyber-Vetting And Law’S Inability To Catch Up, 12 J. Marshall Rev. Intell. Prop. L. 551 (2013), Saby Ghoshray
UIC Review of Intellectual Property Law
The rise of social media means that data about a large number of people is available in public and quasi-public digital locations. Employers, keen on taking advantage of this additional data to decrease the risk associated with an offer of employment, are engaging in “cyber-vetting”—non-consenting social media searches conducted by third parties or the employers themselves. To the extent that current law applies to this practice, the regulation it provides is weak and attacks only part of the problem. Left unchecked, cyber-vetting has the potential to fundamentally alter the scope of prospective employees’ rights. This article surveys the legal and …
What Close Cases And Reversals Reveal About Claim Construction At The Federal Circuit, 12 J. Marshall Rev. Intell. Prop. L. 583 (2013), Thomas W. Krause, Heather F. Auyang
What Close Cases And Reversals Reveal About Claim Construction At The Federal Circuit, 12 J. Marshall Rev. Intell. Prop. L. 583 (2013), Thomas W. Krause, Heather F. Auyang
UIC Review of Intellectual Property Law
Claim construction is central to patent litigation and has been the focus of a voluminous body of scholarship. Researchers have collected data from all aspects of claim construction cases, looking for answers to questions such as why the Federal Circuit reverses district courts’ claim constructions so frequently, why Federal Circuit judges reach different conclusions from one another, and what methodologies these judges are utilizing. This paper takes a novel approach to analyze these questions. Rather than focus on all claim construction cases, this paper focuses only on cases where the Federal Circuit was divided and a dissent was written, and …