Allison, Tiller, Zyontz, & Bligh: Patent Litigation and the Internet

Following State Street Bank and now Bilski, certain Internet business methods remain “patentable subject matter” under Section 101. Given the continued rise of the Internet and its increased role in nearly everyone’s everyday lives, it would be interesting to have a better understanding of how such Internet patents fare in litigation—especially in relation to ordinary patents that bear no relation to the Internet. Recently, a group of researchers, including John Allison of the University of Texas, Emerson Tiller of Northwestern, Samantha Zyontz of George Mason, and Tristan Bligh, published a piece in the Stanford Technology Law Review that continues this worthwhile empirical inquiry. The piece analyzed well over one thousand Internet patents, as well as several thousand non-Internet patents (NIPs).

Titled Patent Litigation and the Internet, their piece raises many intriguing empirical points. The piece generated evidence that Internet patents are far more likely to be litigated than NIPs, suggesting that Internet patent-holders may perceive their patents to have more value than the owners of NIPs perceive their patents. In absolute terms, over 10% of Internet patents were litigated, while only 1.36% of NIPs were litigated.

Sapna Kumar: The Accidental Agency?

Has the Court of Appeals for the Federal Circuit stripped the Patent Office of its administrative power? Professor Sapna Kumar’s article, The Accidental Agency (forthcoming Florida Law Review), explains how the Federal Circuit has essentially become the head of an executive agency. By interpreting the Administrative Procedure Act (“APA”) narrowly, disregarding Supreme Court precedent, and interpreting more appellate issues as questions of law, the Federal Circuit has become the de facto administrator of the Patent Act.

Ted Sichelman: Purging Patent Law of 'Private Law' Remedies

Do current patent law remedies efficiently promote innovation? In his article Purging Patent Law of ‘Private Law’ Remedies, Professor Ted Sichelman (University of San Diego School of Law) argues that patent law’s reliance on tort, contract, and property law models is conceptually flawed and proposes a regulatory model of patent law remedies that would optimize innovation. Professor Sichelman discusses the universally accepted goal of patent law, identifies deficiencies in existing remedy models, and suggests that patent law will more efficiently promote innovation by eradicating the private law moorings from patent law.

Michael Frakes & Melissa Wasserman – Does Agency Funding Affect Decision Making?: An Empirical Assessment of the PTO’s Granting Patterns

Does the Patent and Trademark Office's (PTO’s) budgetary structure influence the rate at which patents are granted? In Does Agency Funding Affect Decision Making?: An Empirical Assessment of the PTO’s Granting Patterns, 66 Vanderbilt Law Review (forthcoming 2013), Professors Melissa Wasserman and Michael Frakes analyze more than two decades of patent grant rates to identify how factors like entity size and technology affect an applicant’s ability to receive a patent. The results of this study suggest that financial incentives, and not just the merits of the invention, may be, in part, driving patentability decisions.

Christopher Buccafusco: Making Sense of Intellectual Property Law

Does the human sensory experience of a product determine whether it is copyrightable or patentable? In his forthcoming article Making Sense of Intellectual Property Law, Professor Christopher Buccafusco (Chicago-Kent College of Law) argues that intellectual property law has established a dichotomy between objects appealing to different senses and offers a novel modification of IP doctrine. He asserts that, traditionally, copyright involves works that have the aesthetic appeal associated with sight and sound, whereas the ‘functional’ connotation of touch, taste, and smell are typically classified in patent law. In this article, Professor Buccafusco suggests that traditional aesthetic theory has become outdated and proposes a change to intellectual property law that would recognize the unity of all senses.