Neutral Litigants in Patent Cases

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. […]

By |2017-10-09T23:30:33+00:00August 14th, 2012|Academic Articles|

Software Patents and the Return of Functional Claiming

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 problem is the absence of clear boundaries, so that it is impossible to know whether a patent claim covers a particular product without going to court to get a ruling on what the patent means. […]

By |2017-10-09T23:30:56+00:00July 25th, 2012|Academic Articles|

The International Trade Commission and Patent Disputes

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 outlier in the American patent system. The ITC can’t award damages or hear counterclaims. It’s easier to get an injunction from the ITC than from a district court, particularly if you are a patent assertion entity (“PAE” or patent “troll”) that uses primarily patents for licensing, rather than to support the commercialization or transfer of technology. In the 6 years since the Supreme Court decided eBay, district courts have given contested injunctions to PAEs exactly once by our count, and three-quarters of the time to practicing companies; in contrast, the ITC still routinely awards injunctions to all comers. The impact of an ITC “exclusion order” preventing importation of a [...]

By |2017-10-09T23:31:41+00:00July 18th, 2012|Academic Articles|

Reforming Patents

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 standards, “encourag[ed] fraudulent speculators in patent rights, deluging the entire country with worthless monopolies, and laying the foundation for endless litigation.” In short, the problems that now confront the patent system are well-known. What is less well-known, however, is that many of the very reforms being considered - abolishing certain types of patents, fee-shifting, and an independent invention defense for example - have been called for and in many cases tried before, under similar and different conditions. In fact, agrarian design patents were “abolished,” according to a recent historical account, but by tweaking the standard for granting a design patent, rather than by outlawing patents relevant to a specific industry. [...]

By |2017-10-09T23:32:06+00:00June 6th, 2012|Academic Articles|

Injunctions as More (or Less) than “Off Switches”: Patent-Infringement Injunctions’ Scope

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 substantially analogous to widely examined concerns of patent scope. A new taxonomy provides named classifications for different forms of injunctions. A systematic study of patent-infringement injunctions issued by U.S. district courts in 2010 indicates how often these different forms appear in practice. Startlingly, this study suggests that the majority of such patent-infringement injunctions take an “obey the law” form that violates the Federal Rules of Civil Procedure, at least as the U.S. Court of Appeals for the Federal Circuit has traditionally understood those rules. In another indication of patent law’s technology specificity, only 12% of the injunctions directed to biomedical-substance technology feature such apparent error. Meanwhile, courts frequently issue [...]

By |2017-10-09T23:33:56+00:00June 1st, 2012|Academic Articles|

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 and negatives, and a vast amount of meta-data has been added to each case. Most importantly, the Lex Machina data includes important features such as case outcome; litigants; patents-in-suit; and tags for case events like summary judgments, trials, and appeals (which the PACER data does not include)." To find my specific subset of patent cases, I use Lex Machina’s robust patents in-suit data (which lists all of the patents disputed in a single case) and match those patents with the FDA’s Orange Book data. Thus, searching Lex Machina for all cases where any one of these patents are in dispute should provide a complete list of all potential ANDA cases. [...]

By |2017-10-09T23:34:20+00:00May 16th, 2012|Academic Articles|

Marks, Morals, and Markets

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 and apply a new theoretical framework to evaluate trademark doctrine. I argue that this contractarian theory holds great promise not only as a descriptive and prescriptive theory of trademark law, but as a framework for normative analysis in consumer protection law generally. Jeremy N. Sheff, Marks, Morals, and Markets, Stanford Law Review, (Forthcoming 2012)

By |2017-10-09T23:34:47+00:00May 14th, 2012|Academic Articles|

Patent Holdup, the ITC, and the Public Interest

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 industry, often information technology. eBay’s discretionary test for injunctive relief doesn’t apply at the ITC. And because the ITC can’t award damages, it has tended to grant injunctions as a matter of course. But as we suggest in this paper, the Commission has more power to adjust the remedy it grants than previously recognized. We think it should use that flexibility to limit exclusion orders in circumstances where the patentee can hold up defendants. Delays in implementing the exclusion order and grandfathering in existing products can avoid holdup problems. Bond and penalty provisions can ensure that patentees are compensated for ongoing infringement during these transition periods. If it uses its [...]

By |2017-10-09T23:35:16+00:00May 8th, 2012|Academic Articles|

Using Evolutive Summary Counters for Efficient Cooperative Caching in Search Engines

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. We use the ESC-summaries to introduce two algorithms that manage our distributed caching strategy, one for the distribution of the cache contents, ESC-placement, and another one for the search of documents in the distributed cache, ESC-search. While the former improves the hit rate of the system and keeps a large ratio of data accesses local, the latter reduces the network traffic by restricting the number of nodes queried to ?nd a document. We show that our cooperative caching approach outperforms state of the art models in both hit rate, throughput, and location recall for multiple scenarios, i.e., different query distributions and systems with varying degrees of complexity. David Dominguez-Sal, Josep [...]

By |2017-10-09T23:35:39+00:00April 1st, 2012|Academic Articles|

Rethinking Regulation and Innovation in the U.S. Legal Services Market

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 both at how innovations take root and at the US system of legal regulation. This article first looks – as no one else has – at legal services innovation in the light of current disruptive innovation theory. This article next looks at the US regulatory scheme. It finds creeping de facto deregulation on the corporate side, and a previously unreported spate of regulation by class actions on the individual consumer side. Finally, this article, taking into account both disruptive innovation theory and the regulation of lawyers, illustrates how these forces interact by analyzing the prospects for several possible innovations in the legal services market. The analysis helps illustrate how regulations [...]

By |2017-10-09T23:36:06+00:00March 7th, 2012|Academic Articles|