New Book: Law of Superheroes

102512_1352_NewBookLawo1by Dennis Crouch

The book that we've all been waiting for is finally out: The Law of Superheroes.  I am serious here — at least that I have been waiting for this book ever since I discussed the project with co-author James Dailey a few years ago when he visited the Mizzou campus.  Daily and Ryan Davidson have turned their popular blog ( into book published by Gotham Books, a division of Penguin. Daily is a patent attorney and the book answers many IP questions that may have vexed comic book readers:

  • Does Batman's use of Wayne Enterprises' advanced technologies to stop crimes (at night) negate patentability?
  • Does Spiderman infringe any genetic engineering patents?
  • In our universe, the Beatles broke up and John Lennon died. However, there are other (far better) universes where that did not happen. What copyright laws would apply when someone wants distribute copies of the Beatles' 40th Anniversary Album that was brought back from that alternate universe?

One of the book's thirteen chapters focuses on intellectual property. But the book as a whole covers a host of topics ranging from Constitutional law to immigration; from criminal procedure to the legal treatment of non-human intelligence.

Great work by Daily and Davidson! I am already looking for Volume II. Law students beware: the book offers a host of original hypothetical questions that would be readily used on final examinations.

Amazon's current price is $14.60.

18 thoughts on “New Book: Law of Superheroes

  1. 17

    Guest, what this illustrates is that there is a real screw loose in the Federal Circuit jurisprudence.  This should not be possible. There should be no excuse. None.

    The central problem we have here is that long ago when re-examinations first started the Federal Circuit seem to think that a statute which says that a patent is presumed valid applies only in court. That is not in the statute. And represents a fundamental problem with the Federal Circuit jurisprudence in this area.

  2. 15

    The problem with this case is that it’s clear that the same party who challenged the invalidity in court also requested the reexamination… but because it was an ex parte reexamination, you don’t have any second party to the reexam. If it had been an inter partes reexam, it would be more likely to have been precluded by the litigation in district court. It’s a major loophole in the preclusion system, but that’s what happened when they set it up this way. As Judge O’Malley pointed out, the burden of persuasion is higher in district court than in a reexamination as well (part of why it’s become an alternative vehicle for this type of action) which makes it questionable whether even an inter partes reexam would be precluded by litigation. Does that make sense? Not really. But it’s how the system is set up.

  3. 14

    IANAE, I think the Supreme Court will not be overly impressed with these kinds of arguments, particularly since the jurisdiction of the PTO to even review an issued patent critically depends on there being a substantial


    question of patentability. If, on particular evidence, the Federal Circuit has already decided the issue that the patent is not invalid, I would warrant that the issue is not new and has been decided. I do not agree that Congress intended that on the same evidence that the Federal Circuit has already reviewed (documentary evidence within the purview of the PTO) that any reasonable mind could agree that the Director could nevertheless have the jurisdiction to disagree and decide in his own opinion that the patent is invalid. This is extremism in the pursuit of perfect justice. But even the good Barry G. would not agree with Rader and crew on this one I would conjecture.

    This is more than a bit much. I can only hope that the Supreme Court has the opportunity to review this matter.

  4. 13

    Imagine Diehr, where the patentee won. Let us for the sake of argument imagine that an accused infringer raised 101 in a DJ action and it got to the Supreme Court because all the lower courts had decided that the patent was invalid under 101. Would the Supreme Court not follow its prior decision and reverse?

    If it was better argued and the Supreme Court could be convinced that they’d gotten it wrong, I don’t see why they should be bound by their previous decision. What if the Supreme Court reversed itself on rehearing? Just as bad?

    But that’s different. 101 is a pure question of law. 102 and 103 depend on facts. Different findings of fact can be reached even on the same evidence, particularly in proceedings of a different nature where there are different burdens and standards of proof. Different principles of claim construction might also tip the balance.

    When if ever will the courts call a halt?

    On the facts you posited? Never, I hope. Why should one infringer be bound by another infringer’s failure to invalidate a patent? The Patent Office, on the other hand, will call a halt to it after the first time, because the second presentation of the same art won’t raise a new question that is likely to succeed, or whatever the standard is now.

  5. 11

    Actually, Blonder-Tongue. Same evidence, different result in two different circuits.

    IANAE, Same patent. Same evidence. Same issue of law.

    How many times does the same court have to decide the same issue?

    Take the Supreme Court. Imagine Diehr, where the patentee won. Let us for the sake of argument imagine that an accused infringer raised 101 in a DJ action and it got to the Supreme Court because all the lower courts had decided that the patent was invalid under 101. Would the Supreme Court not follow its prior decision and reverse?

    This is crazy, when you think about it.

    A patent owner wins on appeal over evidence X that his patent is not invalid. He does so again against different infringer. He does so again against a third infringer.

    When if ever will the courts call a halt? The issue is one of law and is binding on the courts, the Federal Circuit and the lower courts subject to its jurisdiction. If it were not binding, then we really do not have the rule of law.

    Furthermore, I don’t think Congress could tell the courts that its prior judgment on the same issue of law were not binding. This is a separation of powers issue.

  6. 10

    Law is law.

    See the opinion by Newman in Flo Healthcare, reexamination # 95/000,251.

    No way should same evidence in yield different results in law.

    (Now, regarding matters of fact, different paths may yield different evidence based on the same facts, but IANAE, that is not what Ned posted).

  7. 9

    1) Same evidence;
    2) Matter of Law;

    Matters of law don’t have evidence, they have argument. You’re probably thinking of matters of fact, which have both evidence and standards of proof.

    3) Contrary to controlling Supreme Court precedent.

    Is it? I cannot recall the case by name, but I’d love to read it and see why it doesn’t support your position.

  8. 7

    On its face, this seems ridiculous, and is inconsistent with the Federal Circuit’s role to define uniform patent law

    Or, in the words of the Federal Circuit, “That proposition is an unremarkable one.”

    One case was an appeal from a District Court infringement proceeding, the other was an appeal from a PTO reexam. Completely different procedures. It’s purely coincidental that both procedures appeal to the same court, and that alone doesn’t compel the same result.

    Between the different standards of proof (remember the hullabaloo over i4i?) and whatever deference the PTO is entitled to, different results on the same evidence aren’t even necessarily inconsistent.

  9. 6

    link to

    I cannot recall the case by name, but the Supreme Court has taken cert. to resolve a split among the circuits on the validity of a particular patent. If anyone can help me find that case, I would appreciate it.

    Now, how could or should they do that unless the validity of a patent was a matter of law?

    In Baxter, the Federal Circuit on the same evidence first affirmed that a patent was not invalid, then later held it invalid, not following its earlier opinion.

    On its face, this seems ridiculous, and is inconsistent with the Federal Circuit’s role to define uniform patent law, which includes, in my view, whether a particular patent is valid or invalid over particular evidence. Even if that were not enough from a policy point of view, it seems to fly in the face of direct Supreme Court precedent to the contrary.

    My views.

  10. 5

    The Physics of Star Trek by Lawrence M. Krauss and The Physics of Superheroes bu James Kakalios are also fun, but you can’t read those for CLE.

  11. 4

    Liability associated with superhero activity was explored in “The Incredibles.” Wasn’t there a comic book once where Lex Luthor managed to engineer Superman’s arrest?

  12. 2

    And what is the prior art effect of the publication of these futurist technologies when they are actually developed and filed on.

  13. 1

    Awesome! I’m going to have to pick that up, just in case the Green Lantern shows up looking for advice.

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