Search Results

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 modern patent system is often criticized as excessively litigious and ripe for reform. But there is historical precedent for shifts in patent litigation with limited public policy intervention. The historic peak in patent litigation in the nineteenth-century United States declined around 1900, with suits remaining at lower levels until the late twentieth century. This chapter evaluates potential causes of the decline. Perhaps the most important was the changing scale of business organization, which altered the environment of patent disputes. By contrast, the rise of new technology sectors did not drive changes in the number of suits. Legal institutions played a role: litigated patents by the twentieth century were different from those adjudicated in the nineteenth. But the litigation decline resists a purely legal explanation. Patent litigation was transformed from without, by the shifting economic context, rather than by reforms from within the world of patent law

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 system of protecting inventors. It elucidates Congress' removal of the issuance of patents from the duties of the secretary of state and its creation of a separate patent office with its own building. The chapter elaborates on the complex procedures of the Patent Office, designed to protect the rights of inventors. It is not generally known that inventions were often the subject of patent litigation pressed by other inventors who claimed to have made the discoveries first. In some instances, the lawsuit went as far as the Supreme Court. The chapter explores how some inventions have changed the course of the nation. It pays attention to the Lee de Forest and Edwin Howard Armstrong case over rights to the discovery of regeneration. For nearly twenty years, from 1914 to 1934, ego and pride combined with the promise of financial reward and fame to create what was, in the end, ruinous to each man.

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.

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.

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.