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ARTICLE CONTENTS INTRODUCTION 997 1. THE SCIENCE OF ANTIBODIES 1001 A. Antibodies and the Immune System 1001 B. Applications of Antibodies 1004 C. The History and Development of Antibody Research [...], Antibodies constitute a staggering $145 billion annual market--an amount projected to almost double by 2026. Consequently, patents covering antibodies are among the most valuable in the patent system. But antibody patents are being struck down left and right, victims of the Federal Circuit's recent shift to strengthen two doctrinal areas of patent law: enablement and the written description requirement. For each, the Federal Circuit has heightened requirements that patentees disclose or teach how to make and use the "full scope" of their inventions. There are good reasons to be skeptical of the Federal Circuit's attack on genus claims in chemistry generally. But it seems to be a particular problem for antibodies. Applying the Federal Circuit's reinvigorated written description and enablement requirements to antibodies and their chemical structure fits poorly with the science underlying the molecules themselves. Immune-receptor production, a semi-random and galactically expansive process, produces antibodies that are startlingly different in both structure and function. There is no way to describe genus claims to antibodies that satisfy the court's current tests. The science simply doesn't allow it. At the same time, this change in the Federal Circuit's jurisprudence is a legitimate reaction to some of the problems with the long-standing (and long-permitted) practice of claiming antibodies in functional terms. Functional claiming can lead to overbroad patents that stifle future innovation, as it has done in the software industry. Perhaps the Federal Circuit is wary of a similar result in biotechnology. Fortunately, we think there is a middle ground. A new (or, really, quite old) form of patent-claim drafting would give inventors effective control over true substitutes without giving them the power to block real improvements: means-plus-function claims and infringement by the equivalents. Those doctrines limit patentees to claiming only the specific structural features of antibodies they both possessed and described, but also entitle them to assert their patents against antibodies with equivalent functions but different structural characteristics. If the economics of intellectual property center on balancing a need for protection beyond the literal invention with a desire to allow improvements, this seems a step in the right--or, at least in a doctrinally permissible and economically sensible--direction. Whether patentees go for such a solution remains to be seen. Recent empirical evidence on antibody claims has yet to document such a shift. Patent attorneys may need to get over their historical reluctance to writing their claims in such a fashion. Our solution won't give patentees everything they want. But they just might find it gives them what they need.

Abstract. When is a design just a design, and when is it a trademark? Over the last several decades, courts have developed a clear framework for evaluating the distinctiveness of [...]

ABSTRACT Pharmaceutical patents listed in the FDA's "Orange Book" are some of the most valuable patents in the world. Accordingly, for this valuable subset of patents, it is paramount that [...]

TABLE OF CONTENTS Introduction 1872 I. Antitrust's Focus on the Trees 1876 A. Standards of Proof 1876 B. Mergers and Future Harm 1879 C. Petitioning Agencies and Courts 1884 D. [...], Antitrust is atomistic: deliberately focused on trees, not forests. It pays attention to the consequences of individual acts alleged to be anticompetitive. That focus is misplaced. Companies and markets don't focus on one particular act to the exclusion of all else. Business strategy emphasizes holistic, integrated planning. And market outcomes aren't determined by a single act, but by the result of multiple acts by multiple parties in the overall context of the structure and characteristics of the market. The atomistic nature of modern antitrust law causes it to miss two important classes of potential competitive harms. First, the focus on individual acts, coupled with the preponderance of the evidence standard for proving a violation, means that antitrust can't effectively deal with what we might call probabilistic competitive harm: multiple acts, any one of which might or might not harm competition. Second, atomistic antitrust tends to miss synergistic competitive harm: acts which are lawful when taken individually but which combine together in an anticompetitive way. Unfortunately, modern antitrust law has strayed too far down the atomistic pathway. Courts and agencies too often take a narrow, transaction-specific focus to challenged conduct. Instead of asking "is the overall behavior of this company reducing competition in the market," they focus on a particular merger or challenged monopolistic practice in isolation. Courts and agencies need to move beyond atomistic antitrust and take a more holistic look at the circumstances and effects of an overall pattern of conduct. Our goal in this Article is to set out a framework for integrated antitrust, in which individual actions can be understood not just on their own but also as part of a comprehensive whole. Only by doing so can the legal system both return antitrust to its roots and bring antitrust into the modern context of the business decisions that courts must analyze today.

Table of Contents Introduction I. Keeping Secrets A. IP Rights Generally Expire B. Trade Secrets Don't (Seem to) Expire C. The Problem with Infinite Secrecy II. Trade Secret Law as [...], A trade secret, according to the conventional understanding, "expires" only once it is no longer kept secret. Keep the secret for decades or even centuries, as with the formula for Coca-Cola, and you can potentially protect it forever. That conventional wisdom is wrong. A company can "abandon" its trade secrets by failing to derive economic value from keeping them secret. Trade secrets can lose economic value simply because the information has become obsolete. But trade secret abandonment can also happen due to the conduct of the owner. A company that has been benefitting from a trade secret by selling products based on it can exit the market. It can take a product off the market and replace it with a newer version. Or it might develop a secret but then choose not to enter the market at all. Although courts recognize the statutory requirement that a trade secret must derive "independent economic value" from its secrecy, they underappreciate the role that requirement plays in setting a trade secret's end date, and they lack a clear framework for assessing whether information derives the requisite value in any particular case. We argue that courts should draw on trademark law's abandonment doctrine. In order to avoid losing their rights, trademark owners who cease using their trademarks in commerce for a certain period of time have the burden to prove they have an intent to resume use of the mark in the "reasonably foreseeable future." Trade secret law could benefit from adopting a parallel conception of abandonment. Properly understood, trade secret law already incorporates abandonment. We simply provide a clearer way to interpret and apply the statutory requirement of independent economic value. Trade secret abandonment has some surprising implications. Employees might have more freedom to operate under trade secret law than is commonly believed. Once a company has abandoned a trade secret, people who are in a position to know the secret--most likely, employees or independent contractors--should be free to disclose or implement it themselves. Trade secret holders might not like this. But it's important for innovation policy because it gives trade secrets that others have discarded a path to enter the market or the public domain. Trade secret abandonment can also help solve a very real problem facing one important class of people: employee-inventors. Trade secret abandonment provides an outlet for employee-inventors whose employers didn't use their ideas to take them elsewhere and start anew.

INTRODUCTION 2020 1. TRANSACTION COST ECONOMICS AND THE GENERAL THEORY OF HOLDUP 2024 A. The Conditions Under Which the Holdup Problem is Greatest 2025 B. The Social Costs of Holdup [...], Patent holdup has proven one of the most controversial topics in innovation policy, in part because companies with a vested interest in denying its existence have spent tens of millions of dollars trying to debunk it. Notwithstanding a barrage of political and academic attacks, both the general theory of holdup and its practical application in patent law remain valid and pose significant concerns for patent policy. Patent and antitrust law have made significant strides in the past fifteen years in limiting the problem of patent holdup. But those advances are currently under threat from the Antitrust Division of the Department of Justice, which has reversed prior policies and broken with the Federal Trade Commission to downplay the significance of patent holdup while undermining private efforts to prevent it. Ironically, the effect of the Antitrust Division's actions is to create a greater role for antitrust law in stopping patent holdup. We offer some suggestions for moving in the right direction.

INTRODUCTION 1053 I. THE RISE OF THE MACHINES 1058 A. The Technological Background 1058 B. The Practical Applications 1059 C. The Effect on our Interaction with the World 1063 1. [...], Virtual Reality (VR) and Augmented Reality (AR) are going to be big--not just for gaming but for work, for social life, and for evaluating and buying real-world products. Like many big technological advances, they will in some ways challenge legal doctrine. In this Article, we will speculate about some of these upcoming challenges, asking: (1) How might the law treat "street crimes" in VR and AR--behavior such as disturbing the peace, indecent exposure, deliberately harmful visuals (such as strobe lighting used to provoke seizures in people with epilepsy), and "virtual groping"? Two key aspects of this, we will argue, are the Bangladesh problem (which will make criminal law very hard to practically enforce) and technologically enabled self-help (which will offer an attractive alternative protection to users, but also a further excuse for real-world police departments not to get involved). (2) How might the law handle tort lawsuits, by users against users, users against VR and AR environment operators, outsiders (such as copyright owners whose works are being copied by users) against users, and outsiders against the environment operators? (3) How might the law treat users' alteration of other users' avatars, or creation of their own avatars that borrow someone else's name and likeness? (4) How might privacy law deal with the likely pervasive storage of all the sensory information that VR and AR systems present to their users, and that they gather from the users in the course of presenting it? (5) How might these analyses reflect on broader debates even outside VR and AR, especially order without law and the speech--conduct distinction?

INTRODUCTION 766 I. THE RESURRECTION OF THE PATENTABLE SUBJECT MATTER REQUIREMENT 769 A. Patentable Subject Matter and the Supreme Court 769 B. Alice in the Federal Circuit: The Doctrine 774 [...], Can an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court's 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law's patentable subject matter requirement. Our data set includes each one of the Federal Circuit's more than 100 decisions on patentable subject matter in the three years since Alice, including affirmances issued without an opinion under Federal Circuit Rule 36. Including those no-opinion affirmances, the Federal Circuit has found the patent to be invalid in more than 90% of its decisions. The court's precedential opinions, however, tell a different story: nearly a quarter of them favor the patentee by rejecting challenges to patent validity. This difference is due largely to one remarkable fact: although the court has issued over fifty Rule 36 affirmances finding the asserted patent to be invalid, it has not issued a single Rule 36 affirmance when finding in favor of a patentee. Rather, it has written an opinion in every one of those cases. As a result, the Federal Circuit's precedential opinions provide an inaccurate picture of how disputes over patentable subject matter are actually resolved. Precedential opinions suggest that any given patent has a decent chance of surviving an eligibility challenge at the Federal Circuit. But, in reality, very few patents do. Our findings suggest that, by saying nothing, a court can indeed affect substantive law, or at least the perception of it. This has interesting implications both for the ongoing debate over the legality of Rule 36 and, more broadly, for understanding the differences between the law on the books and the actual experience of litigants.

In eBay v. MercExchange, (1) the Supreme Court held that patent owners were not automatically entitled to an injunction when they won their cases. Relying on the patent statute, which [...]

Introduction Patent law rewards invention. Invention in turn means not merely that something is new, but that it is nonobvious--something that ordinary scientists in the field wouldn't have figured out. [...]

2. Patent As we will see in the next Part, utility patent law does more than its sister doctrines to evaluate the scope of a patent right in an integrated [...]

I. THE PROBLEM OF BAD PATENTS II. CAN THE PROBLEM BE SOLVED? A. What Won't Work 1. Preventing Fee Diversion 2. Fee-setting Authority 3. Retaining Patent Examiners 4. Outsourcing Search [...]

I. INTRODUCTION In eBay Inc. v. MercExchange, L.L.C., the United States Supreme Court correctly concluded that courts had both the power and the responsibility to decide whether a successful patent [...]

INTRODUCTION I. THE RETURN OF MACHINE-OR-TRANSFORMATION A. The History of Patenting Software B. The Persistence of the Machine-or-Transformation Test C. The Perils of the Machine-or-Transformation Test II. THE THEORY OF [...], In Bilski v. Kappos, the Supreme Court declined calls to categorically exclude business methods--or any technology--from the patent law. It also rejected as the sole test of subject matter eligibility the Federal Circuit's deeply-flawed machine-or-transformation test, under which no process is patentable unless it is tied to a particular machine or transforms an article to another state or thing. Subsequent developments threaten to undo that holding, however. Relying on the Court's description of the Federal Circuit test as a 'useful and important clue,' the U.S. Patent and Trademark Office, patent litigants, and district courts have all continued to rely on the machine-or-transformation test in the wake of Bilski: no longer as the sole rule, but as a presumptive starting point that threatens to effectively become mandatory. In this Article, we suggest a new way to understand the exclusion of abstract ideas from patentable subject matter. No class of invention is inherently too abstract for patenting. Rather, the rule against patenting abstract ideas is an effort to prevent inventors from claiming their ideas too broadly. By requiring that patent claims be limited to a specific set of practical applications of an idea, the abstract ideas doctrine both makes the scope of the resulting patent clearer and leaves room for subsequent inventors to improve upon--and patent new applications of--the same basic principle. Recasting the abstract ideas doctrine as an overclaiming test eliminates the constraints of the artificial machine-or-transformation test, as well as the pointless effort to fit inventions into permissible or impermissible categories. It also helps understand some otherwise-inexplicable distinctions in the case law. Testing for overclaiming allows courts to focus on what really matters: whether the scope of the patentee's claims are commensurate with the invention's practical, real-world contribution. This inquiry, we suggest, is the touchstone of the abstract ideas analysis, and the way out of the post-Bilski confusion.

INTRODUCTION I. THIS IS NOT MY BEAUTIFUL MARK II. WELL, HOW DID WE GET HERE? III. MATERIAL AND IMMATERIAL CONFUSION A. Justifications for Expanding Confusion 1. Consumers, producers, and the [...]

INTRODUCTION I. STUDY DESIGN A. Technology Areas B. Industry Areas C. Entity Status D. Statistical Analysis II. RESULTS A. The Characteristics of the Most-Litigated Patents B. The Technologies and Industries [...]

INTRODUCTION Patent damages are designed to compensate patentees for their losses, not punish accused infringers or require them to disgorge their profits. (1) The governing statute provides for "damages adequate [...]

INTRODUCTION I. THE BREAKDOWN OF PERIPHERAL CLAIMING A. The Process of Claim Construction B Disputes over the Meaning of Patent Claims C. The Costs of Claim Construction II. CENTRAL CLAIMING [...]

TABLE OF CONTENTS INTRODUCTION I. OBVIOUSNESS, BEFORE AND AFTER KSR A. The Prior Art and the Role of the PHOSITA in Evaluating It B. The Problem of Combining References C. [...]

INTRODUCTION I. TRADE SECRET DOCTRINE A. The History of Trade Secret Law B. The Scope of Trade Secret Law II. EFFORTS TO UNDERSTAND TRADE SECRET THEORY A. Tort Law B. […]

Abstract The trademark use doctrine plays a critical role in ensuring that trademark law serves its proper purpose of encouraging market exchange and lowering consumer search costs. As we have [...]

Abstract It will probably come as no great surprise to anyone who has read Professor Lemley's and Professor Dogan's article, The Trademark Use Requirement in Dilution Cases, that I disagree [...]

INTRODUCTION: THE "BAD PATENT" PROBLEM I. THE PRESUMPTION TODAY A. Deference to the PTO B. Patent Certainty II. LAYERED PRESUMPTIONS A. Eliminate the Clear and Convincing Evidence Presumption B. Gold-Plated [...], 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. That is a mistake. Deference to previous decisions is appropriate in instances where those previous decisions have a high likelihood of being accurate. But to grant significant deference to the initial process of patent review is to defer to an unavoidably and significantly inaccurate signal. Put bluntly, early patent review is not reliable and is unlikely to become so. In this Article, we explain why and propose the creation of a two-tier system of patent validity, with a strong presumption being given to patents after they have been subject to any of a number of intensive review procedures, but only a weak presumption being awarded as a matter of course upon patent issuance.

TABLE OF CONTENTS I. THE BENEFITS OF AN INDEPENDENT INVENTION DEFENSE 1526 II. RISKS OF AN INDEPENDENT INVENTION DEFENSE III. ALTERNATIVES TO INDEPENDENT INVENTION A. Willfulness B. Prior User Rights [...]

TABLE OF CONTENTS I. LEMLEY'S THREE RESERVATIONS II. LEMLEY'S FOUR ALTERNATIVE REFORMS A. Exempt Reinventors from Willfulness Damages B. Treat Reinvention as Evidence of Obviousness C. Exempt Reinventors from Injunction [...]

INTRODUCTION I. THE DOCTRINE OF EQUIVALENTS II. METHODOLOGY III. RESULTS A. Patentees Rarely Win B. Do the Legal Rules Matter? C. Other Findings 1. Learning effects in the district courts [...]

INTRODUCTION I. EXPANSION OF THE RIGHT OF PUBLICITY A. Privacy Origins B. The Modern View: Fame as Property C. Problem Cases: Referential Uses and Merchandise 1. Merchandising 2. Evocation II. [...]

I. THE RACE TO PATENT NANOTECHNOLOGY II. WHAT MAKES NANOTECH PATENTS DIFFERENT? A. Patents on Building Blocks B. Cross-Industry Patents C. The Role of Universities III. ARE NANOTECH PATENTS GOOD [...], Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is so significant that many law firms have established nanotechnology practice groups and the U.S. Patent and Trademark Office has now created a new technology class designed to track nanotechnology products. Three big differences between the emerging science of nanotechnology and other inventions make the role of patents more significant in this arena than elsewhere. First, this is almost the first new field in a century in which the basic ideas are being patented at the outset. In many of the most important fields of invention over the past century--computer hardware, software, the Internet, even biotechnology--the basic building blocks of the field were either unpatented or the patents were made available to all users by government regulation. In others, patents were delayed by interferences for so long that the industry developed free from their influence. In nanotechnology, by contrast, companies and universities alike are patenting early and often. A second factor distinguishing nanotechnology is its unique cross-industry structure. Unlike other new industries, in which the patentees are largely actual or at least potential participants in the market, a significant number of nanotechnology patentees will own rights not just in the industry in which they participate, but in other industries as well. This overlap may significantly affect their incentives to license the patents. Finally, a large number of the basic nanotechnology patents have been issued to universities, which have become far more active in patenting in the last twenty-five years. While universities have no direct incentive to restrict competition, their interests may or may not align with the optimal implementation of building-block nanotechnology inventions. The result is a nascent market in which a patent thicket is in theory a serious risk. Whether it will prove a problem in practice depends in large part on how efficient the licensing market turns out to be.

TABLE OF CONTENTS INTRODUCTION I. ANTICIPATORY INHERENCY A. False Starts B. Public Benefit C. Knowledge and Use II. POSSESSORY INHERENCY A. Disclosure Cases B. Priority Cases III. EXTENDING INHERENCY ANALYSIS [...]

TABLE OF CONTENTS I. PRINCIPLES OF CLAIM CONSTRUCTION A. Situating the Meaning of Claim Terms in Time 1. Novelty and Nonobviousness 2. Enablement and Written Description 3. Means-Plus-Function Claims 4. [...]

I. INTRODUCTION Patent law is territorial. It is also designed to deal with the circumstance of unified infringement by a single actor. But modern commerce is not limited by national [...]