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.

Arti Rai – Patent Validity Across the Executive Branch: Ex Ante Foundations for Policy Development

What can the recent DNA patent controversies teach us about the role of executive agencies in shaping patent policy? In Professor Arti Rai’s essay: Patent Validity Across the Executive Branch: Ex Ante Foundations for Patent Development, Rai analyzes how systematic interagency debate can facilitate the development of beneficial patent policy ex ante. Professor Rai uses recent Supreme Court holdings to demonstrate that executive agencies like the International Trade Commission (ITC), the National Institute of Health (NIH), and the Department of Justice can work in tandem with the U.S. Patent and Trademark Office (PTO or Patent Office) to avoid some of the policy pitfalls created by the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) and Congress.

Gregory Mandel – To Promote the Creative Process: Intellectual Property and the Psychology of Creativity

Does intellectual property law promote creativity? Professor Gregory N. Mandel (Peter J. Liacouras Professor of Law and Associate Dean for Research, Temple University—Beasley School of Law) extensively explores the psychological effects of the patent and copyright systems and their impact on innovation in his article To Promote the Creative Process: Intellectual Property Law and the Psychology of Creativity, 86 Notre Dame L. Rev. 1999 (2011). In this article, Professor Mandel examines modern psychological research of various thought processes, motivation, and collaboration in an effort to reveal how intellectual property laws may affect the process of innovation.

Elizabeth Burleson & Winslow Burleson - Innovation Cooperation: Energy Biosciences and Law

Can the world avert catastrophic climate change through sustained legal cooperation resulting in environmentally efficient, sustainable technology? In Innovation Cooperation:Energy Biosciences and Law, Professors Elizabeth Burleson and Winslow Burleson discuss how different organizations must work together to overcome the imminent threats of climate change. The article delves into the international, legal, and societal barriers that prevent the diffusion of climate change technology while addressing the innovative steps that are being taken to overcome these obstacles.

Donald Chisum: Priority Among Competing Patent Applicants Under the America Invents Act

How will the “First Inventor to File” provisions of the America Invents Act (AIA) impact patent applications filed after the March 16, 2013 implementation date? Donald Chisum’s article, Priority Among Competing Patent Applicants Under the America Invents Act, utilizes a patent bar-esque hypothetical to highlight several important features of the new legislation. Chisum begins his article by outlining a fact pattern involving inventors A and B and the independent steps each inventor takes to patent invention X, a protein that controls muscle spasms.

Adam Mossoff- The Rise and Fall of the First American Patent Thicket: The Sewing Machine War of the 1850s

Have scholars and critics misconstrued patent thickets, incremental innovation, and patent trolling as modern phenomena? In The Rise and Fall of the First American Patent Thicket: The Sewing Machine War of the 1850s, Professor Adam Mossoff (George Mason University School of Law) thoroughly examines the history of the sewing machine and illustrates how these “modern” phenomena have long existed in innovation. In this article, Professor Mossoff provides an overwhelmingly informative historical study of the first American patent thicket and subsequent patent pool, discusses the importance of an in-depth historical analysis, and challenges a few widely-held assumptions.

Great Minds Don’t Always Think Alike: Patent Inflation Sparks Debate Among Scholars

A couple months ago this blog highlighted an intriguing recent article by Jonathan Masur titled Patent Inflation (original post) that presented a model for what the author has observed as a trend of expanding boundaries of patentability. Since that time, Professor Masur’s model of patent inflation has become a hot topic in patent law that has stimulated a hearty debate among three notable patent scholars. Masur’s original article has spawned two thought-provoking responses and a sur-reply. This post summarizes this captivating debate as it is unfolding at the The Yale Law Journal Online.

Jason Rantanen & Lee Petherbridge - Toward a System of Invention Registration: The Leahy-Smith America Invents Act

Does the America Invents Act create a process for patent amnesty? The economic ramifications of the newly created supplemental examination process are discussed by Professors Jason Rantanen and Lee Petherbridge in their highly engaging article, Toward a System of Invention Registration: The Leahy-Smith America Invents Act.

Mark Lemley: The Fractioning of Patent Law

Why is it that patent owners, despite seemingly having an abundance of advantages, seem to consistently lose their cases? In The Fractioning of Patent Law, Professor Mark A. Lemley (William H. Neukom Professor of Law and Director of the Stanford Program in Law, Science, and Technology) systematically explores the structure of modern patent law to provide a detailed, and distinctly probable, explanation for patent owners’ astonishingly low success rates in litigation.

Scott Kieff – The Perils of Patent Reform & Welcome to Patent Purgatory

What effect will the recently enacted America Invents Act (AIA) have on the commercialization of patents? Professor Scott Kieff’s essays, The Perils of Patent Reform and Welcome to Patent Purgatory, explore some reasons why the AIA may negatively influence the rate and the manner by which invention is brought to market.

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.