Category Archives: Patents & Technology

The FTC Has a Dog in the Patent Monopoly Fight: Will Antitrust’s Bite Kill Generic Challenges?

By: Jennifer D. Cieluch Antitrust laws have been notoriously lenient in the patent realm, the underlying reason being that patents’ grant of exclusion create monopolies that defy antitrust laws in order to incentivize innovation. Thus, antitrust violations have rarely been … Continue reading

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Understanding the Backlog Problems Associated with Requests for Continued Examination Practice

By: Sean Tu One of the greatest problems facing the current patent administration is a long patent pendency period. This study focuses on Request for Continued Examination (RCE) practice, and its effects on the current patent application backlog problem. RCEs … Continue reading

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Pleading Patents: Predicting the Outcome of Statutorily Heightened Pleading Standards

By: Arjun Rangarajan The tension between an extremely barebones Federal Rules of Civil Procedure Form 18 for patent infringement lawsuits and Supreme Court case law through Twombly and Iqbal has made it difficult for courts to dismiss frivolous patent litigation … Continue reading

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What’s It Worth to Keep a Secret?

By: Gavin C. Reid, Nicola Searle, Saurabh Vishnubhakat This article is the first major study of protection and valuation of trade secrets under federal criminal law. Trade secrecy is more important than ever as an economic complement and substitute for … Continue reading

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The Resurrection of the Duty to Inquire After Therasense, Inc. v. Becton, Dickinson & Co.

By: Brandee N. Woolard Balancing a duty to a tribunal and a duty to a client can paralyze a lawyer. The task raises difficult questions about how to reconcile competing obligations as an advocate and as an officer of the … Continue reading

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Carbons Into Bytes: Patented Chemical Compound Protection in the Virtual World

By: B. Thomas Watson “Virtual” molecular compounds, created in molecular modeling software, are increasingly useful in the process of rational drug design. When a physical compound is patented, however, virtual use of the compound allows researchers to circumvent the protection … Continue reading

Posted in Health & Biotechnology, Patents & Technology

In Ambiguous Battle: The Promise (And Pathos) of Public Domain Day, 2014

By: Jennifer Jenkins On the first day of each year, Public Domain Day celebrates the moment when copyrights expire, and books, films, songs, and other creative works enter the public domain, where they become, in Justice Brandeis’s words, “free as … Continue reading

Posted in Copyrights & Trademarks, Patents & Technology

After Prometheus, Are Human Genes Patentable Subject Matter?

By: Douglas L. Rogers On April 15, 2013, the U.S. Supreme Court heard oral arguments in Association for Molecular Pathology v. Myriad Genetics, Inc. on the question, “Are human genes patentable?” This article argues that human genes are not patentable … Continue reading

Posted in Health & Biotechnology, Patents & Technology

The America Invents Act 500: Effects of Patent Monetization Entities on US Litigation

By: Sara Jeruss, Robin Feldman, & Joshua Walker Any discussion of flaws in the United States patent system inevitably turns to the system’s modern villain: non-practicing entities, known more colorfully as patent trolls. For many years, however, discussions about non-practicing … Continue reading

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Cooking Protestors Alive: The Excessive-Force Implications of the Active Denial System

By: Brad Turner The Active Denial System (ADS) is unlike any other nonviolent weapon: instead of incapacitating its targets, it forces them to flee, and it does so without being seen or heard. Though it is a promising new crowd-control … Continue reading

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Beta-Testing the “Particular Machine”: The Machine-or-Transformation Test in Peril and Its Impact on Cloud Computing

By: Richard M. Lee This Issue Brief examines recent cases addressing the patent eligibility of computer-implemented method claims and their implications for the development of cloud computing technologies. Despite the Supreme Court’s refusal to endorse the machine-or-transformation test as the … Continue reading

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“Less Is More”: New Property Paradigm in the Information Age?

By: Aarthi S. Anand Before striking down laws increasing copyright’s domain, judges and legislators are asking for evidence that information products will be created even if copyright protection is not provided. The future of Internet technology depends on locating this … Continue reading

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Open Source Innovation, Patent Injunctions, and the Public Interest

By: James Boyle This Article explores the difficulties that high technology markets pose for patent law and, in particular, for patent injunctions. It then outlines the ways in which “open source innovation” is unusually vulnerable to patent injunctions. It argues … Continue reading

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The “25% Rule” for Patent Infringement Damages After Uniloc

By: Roy J. Epstein The 2011 decision by the Federal Circuit in Uniloc v. Microsoft properly condemned the “25% Rule,” which bases a reasonable royalty on 25% of an infringer’s profits. Nonetheless, at least one proponent of the Rule continues … Continue reading

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Checking the Staats: How Long Is Too Long to Give Adequate Public Notice in Broadening Reissue Patent Applications?

By: David M. Longo Ph.D. & Ryan P. O’Quinn Ph.D. A classic property rights question looms large in the field of patent law: where do the rights of inventors end and the rights of the public begin? The right of … Continue reading

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The Classic 25% Rule and the Art of Intellectual Property Licensing

By: Robert Goldscheider Fifty years ago, Robert Goldscheider helped pioneer the use of a methodology known as “the 25% Rule,” a tool for determining reasonable royalties in intellectual property licensing negotiations. The Rule holds that licensees of intellectual property normally … Continue reading

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Non­–Per Se Treatment of Buyer Price-Fixing in Intellectual Property Settings

By: Hillary Greene The ability of intellectual property owners to earn monopoly rents and the inability of horizontal competitors to price fix legally are two propositions that are often taken as givens.  This iBrief challenges the wholesale adoption of either … Continue reading

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Standards × Patents ÷ Antitrust = ∞: The Inadequacy of Antitrust to Address Patent Ambush

By: Jonathan Hillel “Patent ambush” describes certain rent-seeking behavior by the owner of patent rights to a technology that is essential to an industry standard. Two cases, Qualcomm and Rambus, represent attempts of the Third and D.C. Circuits, respectively, to … Continue reading

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Limitation of Sales Warranties as an Alternative to Intellectual Property Rights: An Empirical Analysis of IPhone Warranties’ Deterrent Impact on Consumers

By: Marc L. Roark Apple’s success with the Apple iPhone has brought with it certain problems. Its success has engendered a community that has attempted to circumvent Apple’s exclusive service agreement with AT&T. Unfortunately for Apple (and similarly situated manufacturers), … Continue reading

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Keeping the LEDs on and the Electric Motors Running: Clean Tech in Court After Ebay

By: Eric Lane The recent rise of non-practicing patentees (NPPs) in the clean technology space comes at a time when the international community is debating the role of intellectual property rights in the deployment and implementation of technologies to combat … Continue reading

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In Re Bilski and the “Machine-or-Transformation” Test: Receding Boundaries for Patent Eligible Subject Matter

By: Matthew Moore In order for a hopeful applicant to be granted a patent over his invention, his application must satisfy several procedural and substantive requirements. Among the substantive hurdles that an applicant must clear is the mandate that patents … Continue reading

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Antitrust, Innovation, and Uncertain Property Rights: Some Practical Considerations

By: Dean V. Williamson The intersection of antitrust and intellectual property circumscribes two century-long debates. The first pertains to questions about how antitrust law and intellectual property law interact, and the second pertains to questions about how parties can exploit … Continue reading

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Green Technology in Developing Countries: Creating Accessibility Through a Global Exchange Forum

By: Michael Hasper As they pursue economic development, developing countries possess high demand for processes and technologies that have climate-friendly methods or alternatives. However, these nations currently face barriers to entry because of trade policies and intellectual property regulations that … Continue reading

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Legal Approaches to Promote Technological Solutions to Climate Change

By: Daniel Van Fleet Technological advancement is widely viewed as an essential component to any effective climate change strategy. However, there is no consensus as to the degree to which the law should promote technological innovation and development. This iBrief … Continue reading

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Operation Restoration: How Can Patent Holders Protect Themselves From Medimmune?

By: Stephanie Chu The Supreme Court’s recent decision in MedImmune v. Genentech shifts the balance of power in license agreements from patent holders to their licensees. This iBrief outlines the potential implications of the new rules on all stages of … Continue reading

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