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A psychedelic “renaissance” has led to renewed interest in the medical uses of psychedelics, particularly to assist in treatment of substance use disorders. This “renaissance” has included attempts to patent methods of using or synthesizing psychedelics. Long before this “renaissance,” however, indigenous peoples of the Americas used psychedelic plants in their religious rites, including using psychedelic plants to treat substance abuse disorders such as alcoholism. Therefore, indigenous peoples have raised concerns that the recent trend of patenting psychedelics will lead to the patenting of their traditional knowledge and impede their free exercise of religion. A current proposed solution to address such concerns is to create traditional knowledge repositories. Such repositories prevent the patenting of traditional knowledge that qualifies as “prior art” under the patent laws. However, due to the secret nature of religious ceremonies and oral transmission of religious instruction, prior indigenous uses of psychedelics may not qualify as “prior art.” Moreover, market forces may compel indigenous communities to substitute patented varieties of psychedelics for traditional varieties. Accordingly, a “ceremonial use” defense should also be recognized to provide a defense to patent infringement claims for indigenous communities and their members. [ABSTRACT FROM AUTHOR]

The article focuses on exploring a conflict within pharmaceutical industry concerning the dual requirements of presenting a product as similar to approved drugs for U.S. Food & Drug Administration (FDA) approval while also distinguishing it from prior art for the U.S. Patent and Trademark Office (USPTO) patent protection. Topics include the need for a new system facilitating interaction between the USPTO and FDA during patent prosecution and proposing a post-patent issuance solution.

After the U.S. Supreme Court's 2006 decision in eBay v. MercExchange, federal courts have denied a substantial number of requests for permanent injunctions following a finding of patent infringement. Without an injunction, an infringing party may continue to practice the infringed patent, typically subject to the payment of a court-approved ongoing royalty. Courts and scholars have debated whether unenjoined infringement and the payment of an ongoing royalty therewith constitutes a judicial compulsory license or something else. To assess how courts view unenjoined infringement, we identified seventy-seven post-eBay cases in which patent infringement was found, but a permanent injunction was denied. In each case, we analyzed the language used by the court in establishing the right of the infringer to continue to operate under the infringed patent(s) and its obligation to compensate the patent holder. This language, as well as the surrounding transactional and litigation context, indicates that at least some federal district courts have been granting compulsory patent licenses upon the denial of permanent injunctions, both tacitly and expressly. Moreover, the Federal Circuit has agreed with this characterization in at least some cases. To remove any lingering uncertainty, we recommend that the Federal Circuit acknowledge that a district court that declines to enjoin the infringement of a valid and enforceable patent, and concurrently orders the infringer to compensate the patent holder for acts of future unenjoined infringement, has authorized a compulsory license of the patent. Such an acknowledgment would better align the realities of unenjoined infringement with existing doctrines of patent exhaustion and transfer and encourage courts to focus greater attention on the non-royalty aspects of such licenses, which are currently missing key terms such as license scope, field of use, duration, and termination. It would also inform U.S. foreign policy regarding compulsory licensing by other countries. [ABSTRACT FROM AUTHOR]

The article focuses on the doctrine of assignor estoppel in patent litigation, particularly its application in both district court proceedings and inter partes review (IPR) proceedings before the Patent Trial and Appeal Board (PTAB). It discusses the implications of the Minerva Surgical, Inc. v. Hologic, Inc. decision and argues for the consistent application of assignor estoppel across both types of proceedings to promote fairness and consistency in patent law.

In Design Patent Law's Identity Crisis, we traced the origins of design patent law's ornamentality/non-functionality doctrine and showed how the Federal Circuit, the nation's de facto design patent emperor over the past four decades, has turned the doctrine on its head: it has upended the 1902 Act's intent and reversed three-quarters of a century of regional circuit jurisprudence. So much so that the post-1902 Act regional circuit design patent cases invalidating design patents on functionality grounds would come out oppositely under the Federal Circuit's lax standards. Those standards led to the absurd result that Apple could disgorge Samsung's profits on its smartphones because they employed rounded rectangular shapes. We showed that the applicable legislation limited design protection to original, ornamental articles of manufacture and excluded protection for functionality. This Article responds to the practitioners and academics who have defended the Federal Circuit's interpretation of design patent law in commenting on our article. While none of the commentators question, no less refute, our core finding that the Federal Circuit has flipped the ornamentality/non-functionality doctrine, several offer fig leaves to clothe the Federal Circuit's lax standards for design patent eligibility and infringement. We discuss the significant areas of agreement and show why the defenses of the Federal Circuit's interpretation of the design patent standards are mistaken as a matter of statutory interpretation and are bad intellectual property policy. We conclude by addressing ways in which the Supreme Court or the Federal Circuit could faithfully implement the design patent statute, the fundamental intellectual property channeling principle reflected in Baker v. Selden, and sound intellectual property policy. [ABSTRACT FROM AUTHOR]

Since its emergence during the Industrial Revolution nearly two centuries ago, U.S. design patent law has suffered from a profound identity crisis. U.S. copyright law did not yet extend to the shape or ornamentation of three-dimensional works. The drafters of the first U.S. design protection regime modeled the law on the British copyright regime for surface ornamentation and sculptural features of three-dimensional articles but confusingly labeled the regime "design patent." Courts and the Patent Office struggled to interpret protection for "useful" designs against the backdrop of a utility patent regime focused on technological inventions. Further complicating design patent's role, manufacturers used design patents as a nascent form of trademark protection until federal trademark protection emerged. And in 1870, Congress expanded copyright law to protect sculptural works. In 1902, after a persistent split in the courts and the Patent Office over design patent eligibility for functional designs, Congress clarified that design patents were limited to "ornamental" attributes of articles of manufacture and did not extend to functional attributes. Regional federal circuit courts faithfully limited the design patent regime's reach, but the tests that they enunciated were cautious and incomplete. In 1982, appellate jurisdiction over design patents shifted to the newly established U.S. Court of Appeals for the Federal Circuit. Later that decade, the Federal Circuit expanded the scope of design patent protection, paving the way for design patent law protection for minimalist and functional features of articles of manufacture. This shift helped to fuel the "smartphone wars" of the past decade. Apple's design patent claims to rounded rectangles proved to be the most valuable (and profitable) weapon in its seven-year battle with Samsung. This Article traces the origins of the ornamentality/non-functionality doctrine and shows how several early cases using the "dictated solely by utilitarian considerations" phrasing to deny design patent protection were misinterpreted to be the standard for determining whether a design was eligible for design patent protection. These decisions merely explained that designs "dictated solely by utilitarian considerations" were clearly outside of design patent eligibility. They did not mean that designs that only partially affected functionality qualified for design patents. Unfortunately, inattentive and protectionist judicial opinions caused the standard to drift far from these holdings and into direct conflict with the clear language and intent of the 1902 design patent amendments and fundamental, overarching intellectual property law principles reflected in the Supreme Court's seminal Baker v. Selden decision. This Article aims to correct this fundamental misinterpretation of intellectual property law. Part II tells the remarkable story of how the effort to transplant England's design copyright regime to the United States spawned a confusingly labeled "design patent" regime and examines the confusion wrought by this mislabeled law during the mid to late 19th century. It also reveals a period in which design patent law served as a proto-federal trademark registration system before Congress established federal trademark protection in the late 19th century. Remnants of that dalliance still confusingly resonate in the design patent system today. Part III explores the 1902 amendments, which unequivocally limited design patents to the ornamental features of articles of manufacture and made clear that they did not extend design patent protection to functional elements. Part IV traces the emergence and distortion of the ornamentality/non-functionality doctrine. The early decisions clearly grasped the need to exclude functionality from design patents. Unfortunately, later cases misapplied some of the language of those cases, resulting in standards that contradict the 1902 (and 1952) Acts as well as the logic reflected in Baker v. Selden and other Supreme Court cases dealing with the structure of the intellectual property system. Part V traces the Federal Circuit's tilting of the ornamentality/non-functionality doctrine toward overbroad protection of functionality within the design patent regime. Part VI explores the forces that have led the design patent regime astray. Part VII proposes ways of rectifying design patent law's wayward drift to restore fidelity to the statutory language and the overarching logic of the intellectual property system. [ABSTRACT FROM AUTHOR]

The article examines how patent venue has continued to evolve in the aftermath of the decision of the U.S. Supreme Court in the case TC Heartland LLC v. Kraft Foods Group Brands LLC which dramatically restricted where plaintiffs can bring patent infringement suits. It mentions how both the Federal Circuit and litigants have reacted to the decision, and uses quantitative analysis to map the changes in the landscape of patent venue through the end of 2018.

The article examines the patent litigation landscape after the U.S. Supreme Court's decision in SAS Institute Inc. v. Iancu. It analyzes 200 Inter Partes Review (IPR) decisions, district court orders on motions to stay pending IPR, and potential social and institutional ramifications of the decision. It also mentions pragmatic ways for practitioners to approach litigation strategy in the altered landscape.

An introduction is presented in which editor discusses various articles within the issue on topics including patent law, trademark, and antitrust law.

The article focuses on the role of courts in shaping patent law and policy in the U.S. Topics discussed include enactment of Patent Act of 1952 for governing patents in the country; guidance of the U.S. Patent and Trademark Office to help examiners and applicants who struggle with patent issues; and the U.S. Supreme Court cases Alice Corp. Pty. Ltd. v. CLS Bank Int'l and Mayo Collaborative Services v. Prometheus Laboratories on patentability.

A speech is presented by Circuit Judge Alan D. Lourie, U.S. Court of Appeals for the Federal Circuit. Topics discussed include enactment of Patent Act of 1952 for governing patents in the country; patent approval and application for innovation in electronics and pharmaceutical field; and Diamond v. Chakrabarty court case on patentable subject matter.

The article focuses on decision of the U.S. Supreme Court in the case TC Heartland v. Kraft which narrowed venue for corporate defendants in patent infringement actions. It evaluates how judicial interpretations of the patent venue statute and legislative reform could better serve the policies at the intersection of patent law and venue. It also mentions changes in where patent suits are filed and recent interpretations of the second prong of the patent venue statute.

An introduction is presented in which editor discusses various articles within the issue on topics including developments in patent, copyright, trademark, and privacy, technology-focused regulations and legislature and Video Privacy Protection Act (VPPA).

The article focuses on decision of the U.S. Supreme Court's decision in Life Technologies v. Promega which explores the role the presumption against extraterritoriality has played in shaping U.S. patent law and the Court's deference to the presumption. It mentions Promega alleged infringement against Life Technologies for exporting one component of a patented multicomponent product from the U.S. to be assembled abroad.

This Article explores and evaluates a controversial practice that the Patent Office undertook beginning early in the post-AIA regime: the practice of denying otherwise meritorious requests for review because of what the Office termed "redundant" grounds. The controversy over redundancy-based rejections had several sources. One was that making such rejections required the Patent Office to decide petitions piecemeal--and, indeed, the agency claimed that power for itself--even though it was not clear that this power lay within the statute. Another source was that the Patent Office persistently declined to explain what, in the agency's view, did or did not constitute redundancy. Still another was that the Patent Office resisted Federal Circuit oversight of this practice by claiming unreviewable discretion as part of a larger campaign of self-immunization. This confluence of problematic agency choices has generated other, related controversies with AIA review as well, with a mixed record of success for the Patent Office. Yet while redundancy-based rejection now seems to be ebbing as a matter of agency policy, the underlying structural conditions that gave rise to the practice still persist and repay closer analytical and doctrinal scrutiny. This Article offers that scrutiny and discusses ways forward for AIA review. [ABSTRACT FROM AUTHOR]

The article offers information on high allowance rate for U.S. design patent applications. Topics discussed include views on U.S. design patent law and practice; impact of novelty, nonobviousness, and ornamentality of Federal Circuit's case law on the decision of U.S. Patent and Trademark Office (USPTO) to reject design patent applications; and impact of implication of Federal Circuit's law in the improvement of design patent quality.

Over the past five years, the Supreme Court has embarked upon a drastic and far-reaching experiment in patent eligibility standards. Since the founding era, the nation's patent statutes have afforded patent protection to technological innovations and practical applications of scientific discoveries. However, the Supreme Court's 2012 decision in Mayo Collaborative Services v. Prometheus Laboratories imposed a new limitation on the scope of the patent system: a useful application of a scientific discovery is ineligible for patent protection unless the inventor also claims an "inventive" application of the discovery. The following year, the Court ruled that discoveries of the location and sequence of DNA compositions that are useful in diagnosing diseases are ineligible for patent protection in Association for Molecular Pathology v. Myriad Genetics, Inc. Additionally, in its 2014 Alice Corp. v. CLS Bank International decision, the Court ruled that software-related claims are ineligible for patent protection unless the abstract ideas or mathematical formulas disclosed are inventively applied. These decisions sent shock waves through the research, technology, business, and patent communities. Medical diagnostics companies experienced a dramatic narrowing of eligibility for core scientific discoveries. Reactions within the information technology community have been mixed, with some applauding the tightening of patent eligibility standards on software claims and the opportunity to seek early dismissal of lawsuits, particularly those filed by nonpracticing entities, and others criticizing the shift in patent eligibility. Several members of the Federal Circuit bluntly criticized the Supreme Court's shift in patent eligibility standards on jurisprudential and policy grounds. Additionally, the Patent Office has struggled to apply the Supreme Court's new and rapidly evolving standards. As this sea change unfolded, many patent practitioners, scholars, PTO officials, and jurists hoped that the Supreme Court would provide fuller and clearer guidance on patent eligibility standards. In the aftermath of the Supreme Court rejecting the invitation to reexamine its Mayo decision, many stakeholders have shifted their attention toward legislative reforms. This Report summarizes the presentations and discussion of a workshop that included leading industry representatives, practitioners, scholars, policymakers, and a retired jurist exploring the legal background and effects bearing on legislative action. [ABSTRACT FROM AUTHOR]

The People's Republic of China has become a world leader in both patent applications and patent litigation after the Chinese government enacted new policies to stimulate domestic innovation and patent activities. These major developments have made China an integral venue of international patent protection for inventors and entrepreneurs. However, due to the lack of judicial transparency before 2014, most people had virtually no access to Chinese patent litigation data and knew little about how Chinese courts adjudicated patent cases. Instead, outside observers were left with a variety of impressions and had to guess how the courts adjudicates these cases based on the plain texts of the Chinese Patent Law and the limited number of cases released by the press. However, starting January 1, 2014, China mandated public access to all judgments via a database called China Judgements Online (CJO), making empirical studies possible. This Article analyzes all publicly available final patent infringement cases decided by local People's Courts in 2014. Surprisingly, findings in this Article contradict the long-standing beliefs held by many people about patent enforcement in China. One prominent example is that foreign patent holders were as likely as domestic patent holders to litigate and foreign patent holders received noticeably better results--specifically, higher win rates, injunction rates, and average damages. Another example is that plaintiffs won in 80.16% of all patent infringement cases and automatically got permanent injunctions in 90.25% of cases where courts found patent infringement. These new findings indicate that patent protection in China is stronger than once believed. [ABSTRACT FROM AUTHOR]

Individuals who decline to join cooperative groups--outsiders--raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents. The outsider phenomenon has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the consumer electronics industry. Because these transaction-cost savings appear to outweigh the most common competition-related concerns raised by patent pools, antitrust authorities generally view these private groups favorably. Others are less sanguine. Most patent pools are incomplete: for the technologies they cover, not all relevant patents are included. The reason for this is understandable. Patent holders sometimes believe they can negotiate for higher royalties by declining to join an existing pool. Antitrust regulators are aware of this behavior but do not worry much about it. A growing number of economists and legal scholars believe, however, that this outsider behavior may impose higher costs on pool licensees, detracting from the central benefit that patent pools offer--transaction cost savings. These commentators urge antitrust regulators to regard patent pools with greater caution and skepticism. These calls for caution, however, are based mostly on theories about how patent pools should work, rather than on empirical studies. Remarkably, little research has been done to shed light on the actual impact of patent pool outsiders. Through an original ethnographic study, this Article seeks to remedy this gap. A set of the most notable and public episodes of outsider behavior were collected from industry press reports, case reports, and historical archives. Crucial new information was then gathered through interviews with lawyers and executives directly involved with the episodes studied. The study reveals a characteristic of patent pools that has gone unappreciated until now: they subtly but powerfully influence bargains that take place "poolside"--i.e., deals between patent holders and licensees that take place "in the shadow" of the pool. This spillover effect can beneficially limit the power that theorists have assumed outsiders have. This is an unappreciated benefit of cooperation. The theorists, as it turns out, have not used the wrong approach, but rather, have been missing some important parameters. To further aid regulators, this Article builds upon its qualitative findings by introducing a new quantitative technique for estimating the cost that a licensee either incurs or saves due to an outsider. Applying this technique to original financial and industry data gathered from research subjects, this Article shows that, counterintuitively, patent licensees are sometimes better off where cooperation among licensors is partial, rather than complete. The inflection point lies where the royalty rate hike that a unified pool would need to charge to draw in an outsider is equal to the transaction costs that licensees would conserve by dealing with a single pool. This study's revelations have provocative implications that reach beyond patent law. Contrary to conventional wisdom, slightly fragmented property markets may sometimes be preferable to "grand coalitions." There may exist in any given market for complementary patent rights (or other complementary property rights), an optimal level of diffusion of ownership that resides between total diffusion and total concentration. Some cooperation may not only be better than none, but also better than more. Drawing upon this study, antitrust regulators who must evaluate patent pools can assemble a clearer and more complete understanding of their overall costs and benefits. This Article is also helpful beyond patent law. The ethnographic methodology followed here reveals dynamics between outsiders and groups that theory alone has not captured. Scholars concerned with outsiders in other areas of law and policy can refine and build upon theory by applying a similar ethnographic approach. [ABSTRACT FROM AUTHOR]

An influential literature claims that standard setting for high-technology interoperable products potentially creates monopoly power for the owners of standard-essential patents. Moreover, because there are many owners of standard-essential patents, and each may independently exercise monopoly power (a phenomenon called royalty stacking), an anticommons tragedy may ensue. With actual data from the canonical case of the smartphone industry, this Article shows that royalty stacking theory predicts a cumulative royalty yield of nearly eighty percent. That is, it predicts that four-fifths of the price of a smartphone will accrue to patent holders. Even if all patent holders would combine to eliminate the tragedy of the anticommons and behave as a single monopolist, theory predicts a cumulative royalty yield of nearly sixty-seven percent. That is, it predicts that two-thirds of the price of a smartphone will accrue to patent holders. This Article then uses actual data from licensors in the smartphone value chain to estimate the actual cumulative royalty yield. It finds that in 2016, the cumulative royalty yield in the world smartphone value chain was only 3.4 percent of the average selling price of a smartphone. This suggests that patent holders do not exercise any meaningful monopoly power to increase prices in the world smartphone market, much less that there is an anticommons tragedy in the smartphone industry. [ABSTRACT FROM AUTHOR]

Heller introduced the "anticommons" concept in the late 1990s, based on Hardin's earlier "commons" concept, to refer to the situation in which numerous entities control the rights to use some asset or related cluster of assets. Heller and Rosenberg argued that, in such situations, users would need permission from multiple rights holders in order to use the asset(s), and that the difficulties of coordination would lead to inefficient underuse, leading to what they termed the "tragedy of the anticommons." This Article addresses the limitations of the "tragedy of the anticommons" arguments in the context of licensing of patents related to some industry standard for which the patent holders have committed to license their patents on "fair, reasonable and nondiscriminiatory" ("FRAND") licensing terms. This Article identifies several real-world examples where Heller and Eisenberg's prediction of underuse are not borne out in practice, and explain why real-world institutions that have emerged have largely solved the problem. [ABSTRACT FROM AUTHOR]

Despite the significance of patent litigation in the EU and the looming structural overhaul of the European patent litigation system, there has been comparatively little empirical or statistical analysis of European patent cases across member states. This absence has largely been due to the lack of harmonized case-level data across European jurisdictions. Over the past few years, however, researchers in Europe have developed patent litigation databases that have enabled robust quantitative analysis. As a result, comparative empirical studies have recently been published concerning European patent litigation overall, as well as litigation by so-called non-practicing entities (NPEs). The present study extends this work to the important area of litigation relating to standards-essential patents (SEPs) in the EU. We find that SEPs has been asserted in Europe at significant levels, and that PAEs play a large role in this activity. [ABSTRACT FROM AUTHOR]

The concept of basing patent infringement damages on the sale of the smallest salable patent-practicing unit ("SSPPU") has garnered support from a significant portion of the U.S. innovation community. Some supporters contend that the SSPPU is a substantive rule for defining the appropriate royalty base for all purposes and in all contexts. In this Article, we challenge this view and conclude that the SSPPU is merely a tool used to implement the apportionment requirement created in Garretsan v. Clark, 111 U.S. 120 (1884), in the context of patent infringement jury trials. This Article further clarifies the SSPPU's role and limits in U.S. patent damage determinations. Some of these limits include its (a) inability to estimate the value of licenses in large portfolios, (b) irrelevance to standard-essential patents in FRAND licensing situations, and (c) inability to override actual market value. We believe an understanding of these limitations is necessary to avoid erroneously applying the SSPPU in contexts for which it is not intended and in which application could lead to a reduction of incentives for innovation and R&D, particularly in standards-dependent fields. [ABSTRACT FROM AUTHOR]

An increasing number of judges, legislators, and scholars, particularly in the United States, have wrongly come to believe that the commitment that standard-essential patents be licensed on "fair, reasonable, and nondiscriminatory terms" ("FRAND") was principally created to advance the interests of technology implementers, and have too often given a preference toward implementers' interests in interpreting FRAND agreements. That premise has led American courts to take a categorically hostile view toward awarding injunctions against implementers who infringe valid standard-essential patents, fearing that the injunctive remedy would give innovators undue leverage. Indeed, American courts have been so unilaterally concerned with innovators' conduct that some have even allowed implementers to sue innovators simply for making an opening licensing offer that is later deemed "too high," even if the implementer refused to make any counteroffer at all. An implementer-centric view of FRAND has also caused several courts to conclude that innovators are not entitled to any share of the commercial benefits arising from the standardization of their technologies, and that all such benefits must go to implementers alone. This Article argues that an implementer-centric view of FRAND's origins and purposes is false. FRAND is a contractual agreement that reflects a voluntary reciprocal exchange of benefits and obligations driven by the need to solve significant coordination problems in the face of otherwise prohibitive transaction costs. As part of that bargain, innovators agree to disclose their latest, confidential discoveries to standard-development organizations and to waive their injunction rights as to eventual patents on those discoveries, in exchange for contractual protection against "patent holdout" by implementers. Those implementers are then permitted to use standard-essential patents on the condition that they agree to pay fair and adequate royalties for that use, with the royalty amount to be set through mutual good-faith negotiations. Accordingly, this Article stresses that FRAND is not intended to be, and should not be interpreted as, a one-sided transfer from innovators to implementers. Rather, implementers too owe a significant duty to negotiate FRAND licenses in good faith--a duty that many courts have overlooked and underenforced. This Article demonstrates that implementers' good faith obligations are a critical component of the basic FRAND architecture and that enforcement of those obligations is strictly necessary to the continued development of innovation-driven standards. This Article further observes that the FRAND bargain is not simply meant to give innovators a way to monetize their intellectual property. Rather, and perhaps more significantly, FRAND creates an agreed bargaining framework that allows implementers to access innovators' otherwise-confidential discoveries--inventions so recent that they are not otherwise disclosed in patents or published applications. In this way, FRAND supplies a solution to an iteration of Kenneth Arrow's paradox of information, enabling the standards development effort to yield commercial benefits that would not exist absent innovators' voluntary participation. Stated otherwise, innovators agree to give implementers access--and a fair license--to their most groundbreaking technologies because innovators believe that implementers will reciprocally later agree to take a license in good faith for using those highly-valuable innovations. This Article shows both theoretically and empirically that courts' failure to appreciate these aspects of the FRAND bargain, combined with their overreliance on liability rules (i.e., damages over injunctions) incentivizes the very patent holdout problem FRAND was intended to avoid. That "efficient infringement" outcome, in turn, has motivated innovators to reduce their participation in FRAND bargains, threatening to unravel a massive innovation- commercialization marketplace and its innumerable positive externalities for all parties. To reverse these harms, this Article recommends that courts automatically issue an injunction where an implementer is found to infringe valid FRAND-committed patents that it did not attempt to license in good faith. This Article also recommends that a proper FRAND licensing rate should include some portion of the benefits achieved through standardization of the innovations in question. More broadly, this Article suggests that courts, policymakers, and academic commentators have wrongly favored implementation over innovation--"things" over ideas--unwisely frustrating the emergence of an "ideas economy" that should rightly assign significant profits to upstream innovators and not to the low-margin manufacturing firms that specialize in turning those innovations into tangible products. [ABSTRACT FROM AUTHOR]

Scholarly commentary widely asserts that technology markets suffer from a triplet of adverse effects arising from the strong patent regime associated with the establishment of the Court of Appeals for the Federal Circuit in 1982: "patent thickets" burdening innovation with transaction and litigation costs; "patent holdup" resulting in excessive payouts to opportunistic patent holders; and "royalty stacking" causing exorbitant patent licensing fees. Together these effects purportedly depress innovation and inflate prices for end-users. These repeated assertions are inconsistent with the continuing robust output, declining prices, and rapid innovation observed in the most patent-intensive technology markets during the more than three decades that have elapsed since 1982. Recent empirical studies relating to each of these assertions have found little to no supporting evidence over a variety of markets and periods. Nonetheless courts, legislators, and antitrust agencies have taken, or have proposed taking, actions consistent with these assertions. Most importantly, policymaking entities have sought to mitigate thickets, holdup, and stacking effects by limiting injunctive relief for important segments of the patentee population. Substituting monetary relief for injunctive relief--what I call the "depropertization" of the patent system--yields three potential efficiency losses. First, depropertization impedes efficient resource allocation by shifting the pricing of technology assets from the relatively informed marketplace to relatively uninformed judges and regulators. Second, depropertization distorts markets' organizational choices by inducing entities to undertake innovation and commercialization through vertically integrated structures, rather than contractual relationships now clouded by the prospect of judicial renegotiation. Third, depropertization may facilitate oligopsonistic efforts to depress royalties on patent-protected inputs, resulting in wealth transfers to downstream entities and discouraging innovation by upstream R&D suppliers. This possibility is consistent with lobbying behavior by downstream intermediate users in the smartphone market, who advocate limiting injunctive relief for significant categories of patent holders. These potential welfare losses, combined with the paucity of evidence for thicket, holdup, and stacking effects, recommend against policy actions that have weakened the remedies available to patent holders in information technology markets. [ABSTRACT FROM AUTHOR]

Non-practicing entities (NPEs), some of which are also labeled patent assertion entities or "patent trolls," play a disputed role in our modern patent system. These entities, which do not make and sell products or services that embody their patented technologies, file a large percentage of all patent lawsuits. The perceived patent "troll" problem has dominated the discussion of patent reform in recent years. The policy debate is complicated by disagreement over who counts as a "patent troll," and by debates over whether NPEs are inherently problematic or whether the real problem consists of entities (practicing or not) that assert weak patents. In this Article we present empirical results that provide insight into both questions. Drawing on a comprehensive data set we built of every patent lawsuit filed in 2008 and 2009 that resulted in a ruling on the merits, we find that the situation is rather more complicated than simply comparing operating companies to NPEs. While operating companies fare better in litigation than NPEs overall, breaking NPEs into different categories reveals more complexity. And once we remove certain pharmaceutical cases from the mix, no patent plaintiff fares very well. That is particularly true of software, computer, and electronics patents. [ABSTRACT FROM AUTHOR]

American innovation policy as expressed through intellectual property law contains a curious gap: it encourages individual research investments, but does little to facilitate cooperation among inventors, which is often a necessary precondition for innovation. This Article provides an in-depth analysis of a policy problem that relates to this gap: increasingly, public and private innovation investments depend upon the willingness of private firms and institutions to cooperatively pool industrial, commercial, and scientific data. Data holders often have powerful disincentives to cooperate with one another, however. As a result, important research that the federal government has sought to encourage through intellectual property policy and through other targeted investments is being held back. This Article addresses this issue by offering three contributions--one theoretical, one empirical, and one prescriptive. The theoretical contribution builds upon legal, economic, and public choice literature to explain why pooling data is relevant to innovation policy and why the level of data sharing in some settings may be suboptimal. This discussion offers a conceptual framework for scholars and policymakers to examine how data-pooling relates to innovation policy goals. This leads to the second contribution: an ethnographic study of private efforts to pool data in an important field of research. This Article focuses on the field of cancer treatment because it is one of the most active areas where efforts to pool data have recently coalesced. Interviews with lawyers, executives, and scientists working at the vanguard of "Big Data" projects in the field of cancer treatment offer a detailed view of how, precisely, data- pooling problems can hinder technological progress. The study's most significant finding is that impediments to the pooling of patient treatment and clinical trial data are diverse, nuanced, and not reducible to collective action problems that are already well understood by legal scholars and economists, such as the free-rider dilemma. [ABSTRACT FROM AUTHOR]

Direct competitors possess the ability to challenge bad patents that hinder their ability to compete. However, numerous factors--including the cost of bringing such challenges and the fear of retaliation from patent holders--cause bad patents to remain unchallenged. In theory, members of the public who are harmed by the patents can bridge this gap by filing suit in federal court under the Administrative Procedure Act or the Declaratory Judgment Act. But in practice, the Federal Circuit has aggressively blocked such challenges using the administrative law doctrine of standing. The America Invents Act now provides the public with a robust mechanism for challenging bad patents in the Patent Trial and Appeals Board (PTAB). However, obstacles remain because public interest groups cannot appeal adverse PTAB decisions to the Federal Circuit if they cannot establish actual injury. This Article discusses the important role that the public plays in the patent system by challenging patents that direct competitors cannot or will not challenge. It contends that the Federal Circuit has distorted the Supreme Court's standing jurisprudence by making it significantly harder for third parties to establish that they are within the zone of interests of a statute. It further maintains that constitutional standing limits any challenges from public advocacy groups that have not experienced any direct harm. Finally, this Article makes suggestions to the PTO and Congress to facilitate patent challenges from members of the public. [ABSTRACT FROM AUTHOR]

One of the most important questions in contemporary design patent law is how to interpret the phrase "article of manufacture" in 35 U.S.C. § 289. While there has been much discussion about what Congress intended when it enacted the predecessor to § 289 in 1887, there has been little discussion about what the phrase "article of manufacture" meant in 1887. This Article aims to fill that gap. It examines the relevant statutory text, late nineteenth-century patent treatises, Patent Office decisions, and court cases. Based on this evidence, this Article concludes that in 1887, the phrase "article of manufacture" was not a synonym for "product" and did not refer to any "thing made by hand or machine." Instead, "article of manufacture" was a term of art that referred to a tangible item made by humans--other than a machine or composition of matter--that had a unitary structure and was complete in itself for use or for sale. This historical evidence should be considered in evaluating arguments about the statute's "plain meaning" and the original congressional intent. It also undercuts both the Federal Circuit and Supreme Court interpretations of the phrase "article of manufacture." Additionally, this evidence demonstrates that, because machines were not considered "articles of manufacture" in 1887, the 45th Congress did not intend the results decreed by the Federal Circuit in it 2015 decisions in Apple v. Samsung and Nordock v. Systems. [ABSTRACT FROM AUTHOR]

The article discusess history of willful infringement of patents, along with the role of enhanced damages in enforcing patent rights in the U.S. Topics discussed include enactment of Patent Act of 1790 for addressing the same; court cases Halo Electronics, Inc. v. Pulse Electronics, Inc. and In re Seagate Technologies LLC on the same; and Justice Roberts' retributivist language on the same.

The article focuses on the treatment of biotechnology method patent claims in the U.S. Topics discussed include enactment of Patent Act for addressing the challenges of the same; use of machine-or-transformation test for determining patent eligibility; and court cases Mayo Collaborative Servs. v. Prometheus Labs., Inc., and Alice Corp. Pty. Ltd. v. CLS Bank Int'l on the same.

The article discusess the impact of innovation in software technology on the U.S. patent system. Topics discussed icnlude court cases Alice Corp. Pty. Ltd. v. CLS Bank International and Enfish, LLC v. Microsoft Corp. on the same; challenges of application of the patent-eligibility test; and status of software patents in the country.

The article focuses on the decision of the U.S. Court of Appeals for the Federal Circuit in the case Bristol-Myers Squibb Co. v. Teva Pharmaceuticals U.S.A, Inc. regarding the assessment of the reasonable expectation of success of pharmaceutical and chemical inventions. It mentions that the Court held that Bristol-Myers Squibb's patent for Entecavir, a drug used to treat chronic hepatitis B, was invalid and Bristol-Myers and Teva Pharmaceuticals alleging patent infringement.

The article focuses on the decision of the U.S. Supreme Court in the case Kimble v. Marvel Entertainment, LLC which review patent policy and using patent misuse to transition to a discussion of the relationship between antitrust and patent law. It mentions that it reinforces the importance of stare decisis and will result in greater clarity for patent licenses and reflected an outdated view of competition policy.

Traditional patent law theories teach that a patent's rights of exclusion are a patent's key benefit to the patentee and are necessary to make the patent system work. Yet patentees are increasingly giving away such rights, in whole or in part, as part of a growing phenomenon: patent pledges. In these scenarios, patentees voluntarily commit to limit enforcement of their patent rights. This phenomenon seems to contradict traditional patent law theories. After all, if exclusive rights are necessary, why are patentees increasingly sacrificing some or all of those rights? This Article argues that patentees do so because in patent pledging contexts, patents often entail a different value proposition than what traditional patent law theories posit. That is, patent pledgers use patents as tools to signal information about themselves and their innovation preferences to product, labor, and capital markets. This information may then facilitate a variety of economic purposes behind such pledges. This Article uses concepts from signaling theory in other disciplines to identify several patent law features that help make patents valuable as informational tools. It also reviews several recent Supreme Court cases and their possible implications for the informational value of patents identified in this Article. The Article concludes by arguing that these underappreciated informational roles of patents deserve greater consideration in formulating and tailoring patent law and policy, particularly in industries, such as information technology, where patent pledging is more common. [ABSTRACT FROM AUTHOR]

The goal of this Article is to partially defend patent law's absolute liability rule. Most scholars question the utility of absolute liability, which makes it irrelevant whether an infringement defendant copied from the patentee or independently invented the patented invention. This Article draws from two literatures in making a defense. First, it looks to studies of how technological information is communicated or "diffused." These studies, together with research by psychologists on "inadvertent copying," demonstrate that ideas are sometimes copied in obscure and subtle ways, leaving little or no evidence that copying has indeed occurred. Next, the Article turns to the literature on optimal standards of care in tort law, which is used to describe what would happen if U.S. law changed to require patentees to show copying. Potential patent infringement defendants--a class that includes virtually all people and companies performing research and development--might well impose strict limitations on receipt of technological information. This would help rebut allegations of copying, reducing the risk of legal liability. Such strict limitations would stifle innovation because technological communities thrive on ubiquitous and unregulated communication. Patent law, as it stands, encourages communication by making proof of copying irrelevant in patent cases. As a consequence, researchers (as potential patent infringement defendants) currently have no reason to restrict their access to technical communications. To further support the case for absolute liability, this Article looks to both copyright law and common law rules on the theft of ideas. Both require proof of copying, and both have led potential defendants to invest in restrictive measures designed to prove that they had no access to third party ideas. By requiring only proof that the infringer is using an invention covered by the patentee's claims, patent law dispenses with the need to prove that the infringer copied from the patentee. This means that researchers have very little incentive to protect against receipt of outside information. Potential infringers get no payoff from disproving contact with a patentee because the reduced incidence of copying that would follow from lack of contact is irrelevant under patent law. No one invests in restricting contact, and information flows freely. The obvious downside of the current regime is that sometimes, an infringement defendant will really be a true independent inventor; no copying, subtle or otherwise, took place. In these cases, as the literature shows, absolute liability imposes significant costs. These costs must be weighed against the benefits of information freely shared under the current absolute liability regime. It is hard to say how the costs and benefit net out. Under these circumstances, a recent innovation in U.S. patent law, the new "prior commercial use" defense under the America Invents Act (AIA), may prove helpful. This defense permits one who can prove early commercialization of an invention to avoid liability, even though he or she otherwise infringes. Because commercialization before a patentee's filing date will often be associated with independent invention, this rule reduces some of the costs of the absolute liability standard. It is difficult to say whether this combination of (1) absolute liability, plus (2) an exception for early commercialization, provides the optimal set of incentives for potential patent infringers. But at least the prior commercial use rule encourages activity that has independent social value, i.e., rapid introduction to the market. Given the real benefits to the longstanding rule of absolute liability in patent law, providing an exception under these circumstances makes for a reasonable policy. [ABSTRACT FROM AUTHOR]

The article reports several U.S. court cases, as of September 2015, concerning the intellectual property laws, copyright and trademarks, and privacy laws. It discusses several such cases including Apple Inc. v. Samsung Electronics Co. concerning patent infringement; the Blackhorse v. Pro Football Inc. regarding trade mark laws; and Authors Guild, Inc. v. Google, Inc related to copyright infringement.

The article reports the decision of the U.S. Supreme Court in the case 'Alice Corp. Pty. Ltd. v. CLS Bank International' addressing the patent eligibility of software the court held that adding the words "apply it with a computer" to a patent-ineligible abstract idea is not enough to confer patent eligibility. Topics discussed include ways in which software interacts with the patent system and the interpretation of the Alice decision by the U.S. Patent and Trademark Office.

The article reports the decision of the U.S. Supreme Court in the court case 'Medtronic, Inc. v. Mirowski Family Ventures LLC' filed by a licensee denying infringement in which court held that the patent owner retains the burden of proof for showing infringement. Topics discussed include the court's decision in the case 'MedImmune, Inc. v. Genentech, Inc.;' declaratory judgment actions concerning patent infringement; and limits of permissibility of federal patent laws.

The article discusses how the U.S. International Trade Commission (ITC) investigates and enforce laws concerning unfair practices regarding patent and import trade under section 377 of the U.S. code. Topics discussed include ITC's patent infringement adjudication; enactment of the Tariff Act of 1930 in the country; and the laws defined by the U.S. Patent and Trademark Office (PTO) regarding the issue.

The article examines the consequences of the U.S. Supreme Court's decision in the court case 'Limelight Networks, Inc. v. Akamai Technologies, Inc.' concerning patent infringement law in respect to divided infringement and multi-actor patents. Topics discussed include Federal Circuit's decision in 'Muniauction Inc. v. Thomson Corp,' reinforcement of the single-entity rule when interpreting the definition of infringement.

The article examines the lack of transparency in patent ownership laws in the U.S., as of September 2015. Topics discussed include the U.S. Patent and Trademark Office (PTO)'s abandoned Attributable Ownership rulemaking; need of adoption of a two-tiered disclosure system to balance the costs and benefits of ownership transparency requirements; and enactment of the Leahy-Smith America Invents Act in the country.

The article examines the laws concerning domestic patent subject matter eligibility, particularly in context to the stem cells innovations. It reports the decision of the U.S. Supreme Court in the cases 'Mayo v. Prometheus,' and 'Association for Molecular Pathology v. Myriad Genetics Inc.' and its impact on the U.S. stem cell industry's issue of patent-eligible subject matter.

The article discusses how the Leahy-Smith America Invents Act (AIA) changes the U.S. patent system by establishing new proceedings allowing patent validity challenges before the U.S. Patent and Trademark Office (PTO). Topics discussed include the AIA review proceedings; ways to addresses constitutional and administrative law concerns related to AIA; and the court case Garmin International Inc. v. Cuozzo Speed Technologies LLC.

The article reviews the development of the patent laws in the U.S. concerning defensive methods used to navigate webs of overlapping patent rights. Topics discussed include rise of non-practicing entities (NPEs), changes in substantive doctrines, trend towards increased monetization, evolution of defensive strategies, and laws defined by the U.S. United States Patent and Trademark Office regarding the issue.

The article reports the decision of the U.S. the Supreme Court in the case 'Octane Fitness LLC v. ICON Health & Fitness Inc.' in which the court rejected the Federal Circuit's standard for fee-shifting in patent cases under the Section 285 of the U.S. Patent Act. It informs that in the decision the court defined standards for patent reform and fee-shifting.

An introduction is presented in which the editor discusses several reports published within issue on topics including America Invents Act, the U.S. Supreme Court's ruling in Nautilus Inc. v. Biosig Instruments Inc., and the U.S. laws concerning transparent patent ownership.

The article reports the decision of the U.S. Supreme Court in the court case 'Nautilus, Inc. v. Biosig Instruments, Inc.' concerning the interpretation of the section 112 of the U.S. Patent Act. Topics discussed include need of elimination of ambiguity in patent prosecution in the country; laws defined by the U.S. Trademark Office (PTO) concerning the issue; and the decision of the U.S. Supreme Court in the case 'Evans v. Eaton.'

The article examine the U.S. legislative framework for calculating "reasonable royalty" related to patent damages. Topics discussed include commitments to license on terms that are reasonable and non-discriminatory (RAND); RAND royalty rates with modifications to account for the circumstances of the RAND commitment; incremental value of infringed patents; and development of U.S. patent law.

The Court of Appeals for the Federal Circuit ("CAFC")--the appeals court in charge of virtually all patent cases-- has been fraught with controversy since its creation in 1982. To its critics, the Federal Circuit engages in puzzling behaviors, out of step with its role as an Article III appellate court. The Federal Circuit shows little deference to district courts on questions of fact and to the Patent and Trademark Office ("PTO") on technical issues. It surprisingly resorts to formalistic rules in an area of the law that requires flexibility to adapt to changing technological landscapes. These criticisms have become increasingly salient, leading to calls for an end to the Federal Circuit's exclusive jurisdiction over patent appeals. Several explanations have been put forth to account for these puzzling behaviors. Yet, none can fully explain the range of unique Federal Circuit conduct. Without a full explanation for Federal Circuit behavior, however, the debate over Federal Circuit jurisdiction will remain gridlocked. Drawing upon studies from the sociology of expertise, this Article provides a model of Federal Circuit decision-making that explains and predicts Federal Circuit behavior as a product of four distinct but interrelated expert community features: (1) epistemic control, (2) codification, (3) typecasting, and (4) inability to self-coordinate. The drive that expert communities exhibit for maximal control and autonomy over their knowledge base-- referred to as epistemic control--explains why the Federal Circuit is less likely to defer to solutions proposed by other expert communities, such as the PTO, than would be expected of generalist courts. Those motivations also predict that expert communities such as the Federal Circuit will be more likely to defy non-expert superior generalists, such as the Supreme Court, than would be expected under traditional accounts of behavior in judicial hierarchies. The codification feature of expert communities gives a richer account than existing narratives of when and why the Federal Circuit may prefer inflexible rules of decision over flexible standards. It predicts that the Federal Circuit will resort to rules not only to simplify technical knowledge or control subordinate communities, but also to build external legitimacy and manage internal dissent. Normatively, this model offers a path out of the gridlock by revealing a framework to evaluate and design proposals for Federal Circuit reform. To minimize the distortive effects of typecasting in the context of a centralized court, while retaining the advantages of expertise, this Article proposes the use of advisory panels to house technological, sociological, and economic expertise. Additionally, the model has important implications beyond the Federal Circuit, as it provides a novel theoretical lens to analyze the behavior of other specialized courts. [ABSTRACT FROM AUTHOR]