2012 at Written Description

2012 was a fun year at Written Description; there were fantastic posts by Sarah Tran and her RAs, Chris Suarez, and Tan Mau Wu while I finished clerking, and it was great to return to blogging in September. I've gotten to read papers such as Melissa Wasserman's argument that PTO patentability decisions deserve Chevron deference under the AIA, Mark Lemley's software patent solution, and Buccafusco & Heald's study of the impact of a novel's copyright status on audiobook recordings. We learned that Judge O'Malley writes the longest Federal Circuit opinions, and I also added a new page of Supreme Court patent cases (showing that every current Justice has authored at least one patent-related majority opinion), and a page of patent law references (including tips on searching legislative history). I am also excited about extending Mike Madison's list of classic patent scholarship with additions by TJ Chiang, Michael Risch, and Ted Sichelman (and more to come!).

Spring IP Conferences

As reported by the newly redesigned madisonian.net, the annual Works in Progress Intellectual Property (WIPIP) conference will be held at Seton Hall University School of Law on February 22-23, 2013, and the third annual Patent Conference (PatCon 3) will be held at at the IIT Chicago-Kent College of Law on April 12-13, 2013. The deadline to present at WIPIP was December 17; the deadline for PatCon is February 4.

Sichelman: "Recent" (1980-1999) Classic Patent Scholarship

The next addition to the Classic Scholarship Project is by Ted Sichelman, Professor of Law at the University of San Diego School of Law, whose scholarship is available here. He recently presented his work on purging patent law of "private law" remedies at the SCU software patent conference. I also highly recommend his work on commercialization and on the nuances of patenting by startups. All commentary below is his. —Lisa

My list of “classic” works adds to the outstanding efforts of Professors Michael Madison, Michael Risch, and TJ Chiang. As they’ve identified most of the older classics (and post-1999 works are “off limits”), I’ve focused on works between 1980 and 1999—making this a “recent” (but not “instant”) classics list.

Wasserman on Chevron Deference for the PTO

The America Invents Act (AIA) shifts interpretive authority over patentability standards from the courts to the PTO, argues Melissa Wasserman in her forthcoming article, The Changing Guard of Patent Law: Chevron Deference for the PTO. My co-blogger Sarah Tran has argued that the AIA gives the PTO some substantive rulemaking authority, though not over core patentability standards. Arti Rai has stated that post-grant review proceedings "bear the hallmarks of formal adjudication" and that the PTO could ask for Chevron deference under the AIA. But Wasserman’s article is the first detailed examination I've seen of this issue, and it illustrates how a compelling legal challenge seeking greater deference to the PTO on patentability issues might proceed.

Rai & Sampat on Bayh-Dole Underreporting

I’m very interested in university patenting and licensing under the Bayh-Dole Act, so I enjoyed the new Nature Biotechnology piece by Arti Rai (Duke Law) and Bhaven Sampat (Columbia Public Health), in which they report that universities don’t meet reporting requirements when they patent the results of federally funded research.

Top 10 New IP Paper Downloads

Here's an updated list of the most downloaded IP papers that were posted on SSRN in the past 60 days: