Patent cases at the district court level are one of the most contentious forms of litigation. Scorched-earth litigation tactics, which include protracted discovery battles and overly aggressive motion practice, are common. Overzealous advocacy is not only costly to the parties but also burdens the courts and undermines the public interest in the timely adjudication and just resolution of patent disputes.
Commentators have observed for years that patents do less good and cause more harm in the software industry than in other industries such as pharmaceuticals. Software patents create thickets of overlapping inventions, and are asserted in droves by patent trolls against innovative companies. Some have argued that software isn?t the sort of thing that should qualify as an invention at all. Others have pointed to the laxity of the Patent and Trademark Office (PTO), which they say has allowed too many patents on obvious software inventions. Still others say that […]
The International Trade Commission (ITC) is an integral part of the American patent system. Although it can only block imports on behalf of domestic industries, now that most technology products are manufactured abroad and Congress has relaxed the domestic industry requirement, nearly every patentee is a potential ITC complainant and nearly every patent defendant is a potential ITC respondent. The ITC decides patent cases in less than half the time district courts do, on average, and hears a significant share of the nation’s patent trials.
But the ITC is also an […]
While many believe the patent system has hit a historic and unprecedented low, discontent with patents, and in particular with software patents, is nothing new. In 1966, a Presidential Commission recommended prohibiting software patents because of the PTO’s inability to vet them. In 1883, the Supreme Court railed against “speculative schemers who make it their business to watch the advancing wave of improvement and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax.” In 1836, the Ruggles Report documented how lax patent […]
Injunctions have often been viewed as mere “off switches” that prevent future violations of rights protected by so-called property rules. But injunctions in fact come in a variety of forms having different objects, scopes, and degrees of effectiveness. In practical situations, an injunction might amount to little more than a threat of higher-than-normal monetary sanctions delivered at substantially higher-than-normal speed.
This Article builds on these insights by investigating the potential and actual scopes of injunctions against patent infringement. An economic model for infringer incentives shows how concerns of injunction scope are […]
Understanding Current Trends and Outcomes in Generic Drug Patent Litigation: An Empirical Investigation
Very few studies have made use of new electronic resources such as Lex Machina, which provides full case dockets and other relevant data for intellectual property law cases. While the Lex Machina data is based on existing data from PACER, the federal court system’s official electronic filing database, Lex Machina has performed a significant amount of error correction and tagging on top of PACER’s docket reports. For instance, some cases have been corrected to account for errors in coding by the courts, case types have been resolved of false positives […]
Trademark law depends for its justification on economic arguments that cannot account for much of the law’s recent development, nor for mounting empirical evidence that consumer decisionmaking is inconsistent with assumptions of rational choice. But the only extant theoretical alternative to economic analysis is a Lockean “natural rights” theory that scholars have found even more unsatisfying.
This Article proposes a third option. I analyze the law of trademarks and unfair competition as a system of moral obligations between producers and consumers. Drawing on the contractarian tradition in moral philosophy, I develop […]
Patent assertion entities (PAEs), or patent “trolls,” use the threat of an injunction to hold up product producing companies in patent suits. The Supreme Court’s 2006 eBay decision largely ended that practice, at least in district court. But it has had the unintended consequence of driving PAEs to a different forum, the International Trade Commission (ITC), in hopes of obtaining an injunction no longer available in district court. In this paper, we document that trend, which is dramatic. Increasingly, cases filed at the ITC are filed by PAEs against an entire […]
We propose and analyze a distributed cooperative caching strategy based on the Evolutive Summary Counters (ESC), a new data structure that stores an approximated record of the data accesses in each computing node of a search engine. The ESC capture the frequency of accesses to the elements of a data collection, and the evolution of the access patterns for each node in a network of computers. The ESC can be efficiently summarized into what we call ESC-summaries to obtain approximate statistics of the document entries accessed by each computing node.
For decades, academics have argued that the US system for regulating the practice of law inhibits innovation. Despite that academic consensus, we live in an age of unparalleled innovation in the way legal services are provided to clients in the United States. What gives? How can we live in a regulatory environment that prevents innovation, and have such an abundance of it? Where is this innovation coming from, and from whence might more innovation come? The answers are neither simple nor obvious. Understanding this changing landscape requires a close look […]