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This chapter begins by detailing difficulties with the application process at the U.S. Patent and Trademark Office (PTO) that explain the issuance of invalid patents. It then shows why this problem is not effectively addressed by other means (litigation and reexamination). It demonstrates the benefits of a post-grant opposition system that would allow any party to challenge a patent after it is issued. They system would provide a quicker and cheaper determination of validity than litigation, and would target the most valuable patents. It would allow the PTO to access important information held by competitors. It would reduce uncertainty, thereby encouraging investment and commercialization. It would also reduce the number of invalid patents and it would benefit antitrust law.

This chapter analyzes the problems that patent holders face when they sue an entity that is outside the reach of the enforcement power of the court that adjudicates the patent infringement. The first section of the chapter presents the results of a quantitative analysis of a population of patent cases filed in the United States that was conducted to investigate the involvement of foreign entities in patent litigation in U.S. courts, and to demonstrate the magnitude of the phenomenon and the related potential for cross-border enforcement problems. Particular enforcement difficulties are discussed further in the chapter, which focus on injunctive and monetary relief, respectively. Finally, the chapter summarizes the enforcement difficulties identified in this chapter and offers observations on the impact of these difficulties on the territorial scope of patent laws.

This chapter explores several challenges facing the patent system: university patenting, the cost of patents, and the growing number and voluminosity of patent filings. The pros and cons of academic patenting are investigated through its potential impact on the quality and quantity of scientific research. A methodology for the evaluation of patent costs is then presented. The international comparison shows that European patents are more expensive mainly due to the translation costs (including intermediation with patent attorneys) and the validation fees in each national patent office following approval by the EPO. The chapter ends with a brief illustration and explanation of the recent boom in the patent workload, characterized by an increase in both the number of patent filings and their size (number of pages or number of claims).

The “patent controversy” of the twenty-first century reflects claims that patent institutions are in crisis, and new developments in technology markets require departures from traditional approaches to property rights. The historical record sheds light on the nature and validity of these assertions. Patterns over the course of two centuries regarding patent grants, litigation rates, and intermediaries or “nonpracticing entities” suggest that these features of the market for ideas are hardly anomalous. Indeed, they have always been characteristic of the disruptive technologies that propelled the United States toward global industrial leadership.

This chapter presents a history of the U.S. patent system based on quantitative and qualitative evidence relating to patentees’ expectations that courts will uphold the validity of contested patents, find infringement, and award injunctive relief against infringing parties. Additionally, this chapter describes historical changes in antitrust law that have impacted patentees’ ability to enter into licensing and other patent-dependent transactions. Based on these features of patent law and antitrust-related patent law, supplemented by background institutional developments, the history of the U.S. patent system during 1890–2006 consists of three periods: (i) a strong-patent, weak-antitrust period from 1890 through the mid-1930s; (ii) a weak-patent, strong-antitrust period from the late 1930s through the 1970s; and (iii) a strong-patent, weak-antitrust period from the early 1980s through 2006. Historical trends in the volume of patent applications by U.S. inventors are consistent with this division of U.S. patent history.

This chapter discusses the patenting of the CCR5 gene in Europe. It compares and contrasts the practices of the United States Patent and Trademark Office (USPTO) with the European Patent Office (EPO) with regard to gene patenting. It also focuses on the anatomy of opposing a European patent and offers an informative glimpse into the world of patent litigation. A contrast between the USPTO and the EPO is informative since it points out that there are alternatives: questions of human value are embedded differently in various legal regimes. The situation in which the US finds itself is not inevitable.

This chapter examines the role of models of invention as well as the machines and devices they represent in patent jurisprudence. It first charts the evolution of various forms of patent models and the reasons for their persistence, including the widespread use of models as means of instructing manufacture. It then considers the different functions of mechanical models, such as establishing priority of invention, before discussing the obsolescence of such models. It also explores patent litigation models that were deployed in infringement actions.

For a court deciding exclusively on patent matters and being in particular competent to reverse the decisions of the technically qualified patent examiners of the EPO in the case of revoking a patent, the need for both legally and technically qualified persons is obvious. However, despite the great importance of technical knowledge, the case must still be decided on the basis of legal criteria. There are no examples of the involvement of technically qualified judges in the jurisdictions of most CMSs, hence, the cooperation of lawyers and technical experts on a Court’s panel will be a new experience for many prospective legally or technically qualified UPC judges. The model of the Swiss Federal Patent Court may help and, also, some CMSs do have experience with such cooperation.