New Patent Law Scholarship

  • MortarboardPatent Reform: Matthew Sag and Kurt Rohde, Patent Reform and Differential Impact. Sag (DePaul) and Rohde (MBHB) want to get patent reform rolling — they suggest that we throw-out the chaff because it slowing down the process. Their differential impact approach helps us focus on reforms that will stop the abuse of “bad patents.” 
  • Software Patents: Robert Merges (Berkeley), Patents, Entry and Growth in the Software Industry. A decade ago, everyone predicted that software patents would turn the industry on its head.  Professor Merges finds that software patenting has not been earth shattering.  Big companies have adapted and “new firm entry remains robust.”
  • Federal Circuit: Professors Nard (CWRU) and Duffy (GWU) suggest that we rethink the CAFC experiment and the virtues of uniformity in their new article, Rethinking Patent Law’s Uniformity Principle. CAFC jurisprudence is becoming a bit stale and would benefit greatly from at least one other sister-court deciding patent appeals.
  • Takings: Adam Mossoff (Michigan State) is quickly becoming known for his studies on the history of patent jurisprudence. In the wake of Zoltek, where the CAFC refused to protect patent rights under the takings clause of the Fifth Amendment, Mossoff took the court to task — especially for its continuation of the untrue myth that “patents were never secured as constitutional private property in the nineteenth century.”  In his new article, Mossoff concludes that “[i]t is time to set the historical record straight, and to recognize that nineteenth-century courts applied the Takings Clause to patents, securing these intangible property rights as constitutional private property.”
  • Google Scholar: For those of you who do not know about it, Google Scholar is getting pretty good and should now be on your agenda for most prior art searches. http://scholar.google.com.

 

8 thoughts on “New Patent Law Scholarship

  1. The CAFC is doing a great job. No need for any change. A “sister court” is a joke. Easy to Monday night quarterback.

  2. Duffy and Nard’s paper is very interesting — from a quick skim, it appears to propose giving the DC Circuit concurrent jurisdiction over appeals from the PTO, as well as creating an additional court of appeals that would function like a second, parallel, Federal Circuit for reviewing patent cases.

    Maybe I am overlooking something obvious, but it seems to me that the paper should make some mention of how the CAFC’s jurisdiction over non-patent cases would be affected. It is fine to suggest that the Federal Circuit might benefit from having a sister circuit for patent cases, but it is questionable whether that would also be a benefit in CFC, CIT, MSPB, and CAVC cases, for example. Do Duffy and Nard mean that the new “sister circuit” would only review patent cases, or would the “sister circuit” approach apply to these other aspects of the jurisdiction as well?

    Maybe I’m missing something obvious, or maybe I missed something in the paper when I skimmed it, but I’m curious about whether other readers might have an opinion.

  3. Can someone please explain to me the difference between a “good” patent and a “bad” one? Also, is this a relatively recent phenomena and, hence, the need exists to once more tinker with the law?

    It seems to me that whenever tinkering with copyright law, Congress creates greater rights, but when tinkering with patent law the converse is typically the case.

  4. Reading a bit into the paper by Sag, I see quoted a figure for the total estimated costs per year for patent litigation: $2B. Now, this, of course, is across ALL industries, which, I’d expect would have total revenues into the trillions of dollars (overall US GDP is over $13 trillion a year).

    Now the $2B figure does not include the payout of settlements, but I think it’s fair to infer that those are at least in the same order of magnitude, i.e., well less than a factor of ten more.

    So how does such a relatively paltry amount of money manage to damage innovation?

  5. For all the talk about the terrible impact “bad patents” may have on software in particular, and the “tax” they are imposing on the industry, I have yet to see any breakdown that at least attempts to put an overall dollar number to this “tax”.

    Certainly if you simply include the amounts paid out in patent settlements by Microsoft — which, obviously, possesses the biggest pockets of all by far in software — they are pathetically small compared to the revenues of Microsoft ($44B a year). Perhaps other companies pay out more, relatively, than Microsoft, but where’s the actual evidence of this?

    If “bad patents” represent a big problem, shouldn’t it be easy to attach big monies by to that problem? Why has this never been done?

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