Rethinking Patent Law
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Rethinking Patent Law
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Author : Robin Feldman
language : en
Publisher: Harvard University Press
Release Date : 2012-06-19
Rethinking Patent Law written by Robin Feldman and has been published by Harvard University Press this book supported file pdf, txt, epub, kindle and other format this book has been release on 2012-06-19 with Law categories.
Scientific and technological innovations are forcing patent law into the spotlight and revealing its many glaring inadequacies. Take, for example, the patent case that almost shut down the BlackBerry, or the growing phenomenon of patent trolling, in which patents are acquired for the sole purpose of entrapping companies whose products relate to them. And patents on genes have everyone up in arms—and our courts confused. Robin Feldman explains why patents are causing so much trouble. The problem lies in our assumption that patents set clear boundaries for rights to an invention. In reality, they do no such thing. The very nature of inventions makes them impossible to describe unambiguously for all time. When something is so new that we do not understand yet how it works, what it is capable of doing, or how it could be applied—as is often the case in biotechnology—description is necessarily slippery. Instead of hoping for clear boundaries, and moaning when we don’t get them, Rethinking Patent Law urges lawmakers to focus on what the law can do well: craft rules that anticipate the bargaining that will occur as rights unfold. By steering clear of laws that distort the bargaining process, lawmakers can help courts answer difficult questions, such as whether genes, software, and business methods constitute patentable subject matter, whether patents in the life sciences should control inventions that have yet to be discovered, and how to resolve the battles between pharmaceutical companies and generics.
Rethinking Patent Law S Presumption Of Validity
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Author : Douglas Lichtman
language : en
Publisher:
Release Date : 2011
Rethinking Patent Law S Presumption Of Validity written by Douglas Lichtman and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2011 with categories.
The United States Patent and Trademark Office is tasked with the job of reading patent applications and determining which ones qualify for patent protection. It is a Herculean task, and the Patent Office pursues it subject to enormous informational and budgetary constraints. Nonetheless, under current law, courts are bound to defer to the Patent Office's decisions regarding patent validity. In this Article, we argue for reform. Deference to previous decision-makers is appropriate in instances where those previous decisions have a high likelihood of accuracy, and the patent system should endeavor to create processes that fit this mold. But granting significant deference to the initial process of patent review is indefensible and counter-productive. Patents should be vulnerable to challenge until and unless they are significantly evaluated in an information-rich environment. At that point, they will have earned and therefore should be accorded a presumption of validity. Such an approach would better serve the patent's systems long-run incentive goals, and it would give patent applicants better incentives to file for genuine inventions but leave their more obvious and incremental accomplishments outside the patent system's purview. Here, we therefore suggest the creation of a two-tier system of patent validity, with patents that are subject to intensive scrutiny accorded a strong presumption of validity, while untested patents are left to be evaluated more fully in court.
Rethinking Intellectual Property
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Author : Gustavo Ghidini
language : en
Publisher: Edward Elgar Publishing
Release Date : 2018-01-26
Rethinking Intellectual Property written by Gustavo Ghidini and has been published by Edward Elgar Publishing this book supported file pdf, txt, epub, kindle and other format this book has been release on 2018-01-26 with Law categories.
Intellectual property law is built on constitutional foundations and is underpinned by the twin freedoms of freedom of expression and freedom of economic enterprise. In this thoughtful evaluation, Gustavo Ghidini offers up a reconstruction of the core features of each intellectual property paradigm, including patents, copyright, and trademarks, suggesting measures for reform to allow intellectual property to become socially beneficial for all.
Rethinking Patent Law In The Administrative State
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Author : Orin S. Kerr
language : en
Publisher:
Release Date : 2017
Rethinking Patent Law In The Administrative State written by Orin S. Kerr and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2017 with categories.
This Article argues that administrative law doctrines should not apply to judicial review of the patent system. The dynamics of patent law derive not from public law regulation, but rather from the private law doctrines of contract, property, and tort. A patent is akin to a unilateral contract offer by the government. An inventor who files a patent claim is claiming acceptance of the offer. If the offeror-government agrees, the patent must issue, with the property right of the patent given as consideration. An applicant that challenges the denial of a patent application is essentially bringing a breach of contract action, and a patent infringement suit is a type of tort claim. Based on this insight, the Article argues that administrative law doctrines such as Chevron and the Administrative Procedure Act should not apply within patent law, and that such doctrines pose a serious threat to the proper functioning of the patent system.
Rethinking Patent Law S Uniformity Principle
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Author : Craig Allen Nard
language : en
Publisher:
Release Date : 2007
Rethinking Patent Law S Uniformity Principle written by Craig Allen Nard and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2007 with categories.
The creation in 1982 of the United States Court of Appeals for the Federal Circuit represents the first significant appellate consolidation of a particular area of law in American history. Evaluating the Federal Circuit experiment is highly important to understanding, and perhaps improving upon, the institutional design of the federal judiciary. The Federal Circuit was grounded in a congressional desire for greater uniformity in the application of patent law. In patent law, as in other areas of the law, uniformity is a virtue. But uniformity is not the only virtue and centralization has its costs. The issue of centralization versus decentralization manifests itself in numerous areas of law, politics, economics and business. This article draws upon that literature and argues that the time is ripe to rethink the Federal Circuit experiment and the fixation on uniformity that gave rise to the experiment. The criticisms currently levied against the Federal Circuit - that it maintains excessive insularity, is subject to path dependency in its case law, and produces inadequately nuanced jurisprudence - can be traced back ultimately to the court's chief structural limitation: The court lacks the benefit of sister-circuit jurisprudence that would engender a healthy competition of rationales and provide a mechanism for testing legal innovations. Accordingly, the article proposes that in addition to the Federal Circuit, at least one, and perhaps two or three, extant circuit courts should have jurisdiction to hear appeals relating to patent law. This proposal represents a shift in strategy from one dominated by the pursuit of uniformity, to one where competition and diversity are equally important. As the literature from many other areas suggests, a choice between centralized and decentralized institutions cannot and should not be made with a polar solution. The issue is one of optimization. In 1982 Congress decided that the optimal number of federal appellate courts deciding patent cases was fewer than thirteen; we suggest that the optimal number may also be greater than one.
Fence Posts Or Sign Posts
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Author : Dan L. Burk
language : en
Publisher:
Release Date : 2015
Fence Posts Or Sign Posts written by Dan L. Burk and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2015 with categories.
Patent law is bogged down in the minutia of claims construction. Claim construction is central to every patent dispute, but it has not provided the hoped-for certainty or notice to competitors. Quite the contrary: disputes about the importance of inventions and the scope of patents have been replaced by labyrinthine wrangling over words written by lawyers. The flaws of claim construction result largely from the problems attending quot;peripheral claims,quot; that is, claims that purport to set the outermost boundaries of patent rights. In this paper, we argue that the way for the patent system to move ahead may be by looking behind, to the practice of quot;central claimingquot; that was prevalent before 1870, and which was used in many countries through the late twentieth century. Rather than relying on the illusion of peripheral quot;fence posts,quot; patent law may do better to once again look to stability of central quot;sign posts.quot; We examine the failure of peripheral claiming, the benefits of central claiming, and several hybrid measures that might be adopted, either in the process of moving from fence-posting to sign-posting, or as improvements over the current system that still stop short of fully adopting central claiming.
Rethinking Patent Eligibility For The Modern Scientific Age
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Author : Peter S. Menell
language : en
Publisher:
Release Date : 2014
Rethinking Patent Eligibility For The Modern Scientific Age written by Peter S. Menell and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014 with categories.
As reflected in the Federal Circuit's fractured opinion in CLS Bank v. Alice Corp., there is no greater confusion in contemporary patent law than that surrounding the scope of patent eligibility limitations. This Supreme Court amicus brief in that case traces the roots of the court-made doctrines excluding patents on laws of nature, physical phenomena, and abstract ideas. It argues that a test of inventive application neither serves the underlying purposes of the patent system nor comports with the process of modern technological advance. As a result of advances in scientific understanding and methods over the past 150 years, many if not most inventions today explicate, manipulate, and control physical, chemical, biological, and digital phenomena at elemental, molecular, algorithmic, and systemic levels. Doctrines that treat conventional application of even newly discovered computer algorithms, molecular pathways, and chemical synthesis as unpatentable threaten to exclude much of the inventive thrust of modern research. Mayo's requirement for unconventional application shifts scientists' efforts from the valuable scientific and technological advances that society seeks toward surmounting an amorphous test of non-obvious implementation. Specific and practical application, in conjunction with the technological arts limitation explicated in Justice Stevens's concurrence in Bilski, would better serve as the test for patent eligibility in the modern scientific and technological age. Particularly in light of past experience, setting inventive application as the test for patent eligibility threatens to undermine invention incentives, hamper patent prosecution, and greatly complicate patent litigation. While recognizing that the problems posed by patents on software and other computer-implemented inventions are real, this brief contends that patent eligibility doctrines beyond requiring specific application and categorical exclusion of business methods and other non-technological processes are poorly suited to address those concerns. It therefore concludes that the Supreme Court should turn away from the Funk Brothers/Flook/Mayo paradigm, and instead focus on elucidating the statutory requirements of patentability. By clarifying the constitutional and jurisprudential foundation for subject matter exclusions, the Court can promote legislative and administrative solutions that more directly address the evolving needs of the patent system.
Rethinking Novelty In Patent Law
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Author : Sean B. Seymore
language : en
Publisher:
Release Date : 2013
Rethinking Novelty In Patent Law written by Sean B. Seymore and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013 with categories.
The novelty requirement seeks to ensure that a patent will not issue if the public already possesses the invention. Although gauging possession is usually straightforward for simple inventions, it can be difficult for those in complex fields like biotechnology, chemistry, and pharmaceuticals. For example, if a drug company seeks to patent a promising molecule that was disclosed but never physically made in the prior art, the key possession question is whether a person having ordinary skill in the art (PHOSITA) could have made it at the time of the prior disclosure. Put differently, could the PHOSITA rely on then-existing knowledge in the field to fill in any missing technical details from the prior disclosure? This Article argues that existing novelty jurisprudence mishandles the possession question in two ways. First, it tends to overestimate the PHOSITA's then-existing knowledge by failing to fully appreciate the complex nature of certain technologies. Second, the current examination framework vitiates the presumption of novelty by placing proof burdens on the would-be inventor that can thwart innovation and frustrate important objectives of the patent system. To resolve these problems and to fill a gap in patent scholarship, this Article proposes a new paradigm that reframes the novelty inquiry during patent examination. Its implementation will not only improve the quality of issued patents, but make the patent literature a more robust source of technical information. This Article contributes to broader policy debates over patent reform and joins a larger effort to bridge the disconnect between patent law and the norms of science.
Rethinking U S Antitrust And Intellectual Property Rights
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Author : Rudolph J.R Peritz
language : en
Publisher:
Release Date : 2013
Rethinking U S Antitrust And Intellectual Property Rights written by Rudolph J.R Peritz and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2013 with categories.
The paper discusses three claims as the framework for rethinking the relationship between antitrust and intellectual property rights (IP) in the United States: (1) the claim that antitrust has always been the product of a fundamental tension between competition policy and private property rights; (2) the claim that IP reflects its own tensions between competition and property rights - in particular, the paper argues that patent law, like copyright, advances progress best when it fosters competition in ideas, when it replenishes the reservoir of public knowledge; (3) the corollary claim that understanding the relationship between antitrust and patent law calls for recognition of the dual competition regime involved - antitrust law for commercial markets, patent law for the marketplace of ideas. The paper concludes with a brief discussion of the "So what?" question: What difference would it make - this new vision of two competition logics working in these two linked but separate domains?
Rethinking The Development Of Patents
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Author : Adam Mossoff
language : en
Publisher:
Release Date : 2014
Rethinking The Development Of Patents written by Adam Mossoff and has been published by this book supported file pdf, txt, epub, kindle and other format this book has been release on 2014 with categories.
The history of patents begins, not with inventions, but with royal grants of industrial monopolies in the fifteenth century. By the end of the eighteenth century, however, patents represent a right to property in a novel mechanical or scientific invention. Commentators today maintain that this radical shift from royal monopoly privilege to legal property right occurred solely in response to economic or institutional demands. While political, economic and institutional conditions certainly played a role in this story, this article maintains that the ideas of John Locke were the fountainhead behind the evolution of patents for inventions. Although there were fits and starts toward a new patent doctrine in the seventeenth century, the watershed moment occurred when the common law courts acquired jurisdiction over patents from the Privy Council in the mid-eighteenth century. The common law judges - learned men steeped in the traditional rights of Englishmen and in the philosophy of natural rights - redefined the doctrine of patents by drawing upon the ideas that formed the basis of their own political and legal philosophy. The result was the novelty and the specification requirements, which are first described by Lord Mansfield and Justice Buller in terms that reflect John Locke's labor theory of property and social contract theory. In surveying the historical record, i.e., in looking at the ways in which royal councilors, judges and inventors conceived of patents between 1550 and 1800, the influence of Locke's ideas upon this important legal doctrine is evident. This provenance of patent law thus suggests that an inventor's moral right to the property in one's invention should play a role in the ongoing debate concerning the protections afforded by the patent laws.