Judge Richard Linn: Changing Times, Changing Demands

Which cases do the Federal Circuit judges think are the most important right now? On September 27, 2011, the Honorable Judge Richard Linn of the U.S. Court of Appeals for the Federal Circuit shared his views on which cases should make it to the top of the list when he gave a videotaped lecture on "Changing Times: Changing Demands" at Southern Methodist University Dedman School of Law in Dallas, Texas. Not surprisingly, his list corresponds well with academic scholarship.

Jay Kesan et al.--Developing a Comprehensive Patent Related Information Retrieval Tool

How can one reliably gather and identify pertinent data from such varied sources as litigation history, press releases, news articles, scientific literature, and foreign databases?  In a recent article, Jay Kesan and his colleagues in the theoretical and computational biophysics group at Illinois (Hang Yu) and in the civil and environmental engineering department at Stanford (Kincho Law, Siddarth Taduri, and Gloria Lau) explore potential frameworks for approaching this non-trivial task. Poorly performing search tools can result in millions of dollars in patent litigation or lost revenue—from erroneous preclearance searches to any resulting patent invalidation proceeding.  Accordingly, the inability to obtain and find critical information regarding patents and patent applications is a very serious problem.  Currently, cross-referencing hundreds of incompatible databases (operated by independent entities), wherein millions of documents are stored in various file formats and contain data arranged in a number of ways, is a very laborious and perhaps impossible task.  In Developing a Comprehensive Patent Related Information Retrieval Tool, Kesan and his colleagues directly address the need to create algorithms capable of cross-referencing data in multiple domains to identify the most relevant documents for a user's specific needs and also establish a basic framework for developing such tools.

David L. Schwartz: Prospectivity and Retroactivity in Patent Law

Should the Federal Circuit issue a higher proportion of non-precedential opinions? In Prospectivity and Retroactivity in Patent Law, Professor David Schwartz of the Chicago-Kent College of Law writes a draft article that raises this and many other fascinating questions.

Reflecting on the role Federal Circuit precedent plays on patent rights, Schwartz uses his piece to illustrate that, while many Federal Circuit opinions have significant retroactive effects on pre-existing patents, most of these opinions have few (if any) prospective effects on future patents. His point, essentially, is that patents, once issued, are very rarely capable of meaningful amendment or modification, so court opinions that limit (or enhance) the value of pre-existing patents will have a meaningful impact on those pre-existing patents; in many cases, the court opinions will contract a patentee’s rights, and there is nothing that the patentee will be able to do about it. At the same time, however, court opinions will often have little to no impact on future patents, as savvy patent prosecutors will usually find ways to “draft around” a court’s newly established patent rules.