The Federal Circuit\u27s Licensing Law Jurisprudence: Its Nature and Influence

The Federal Circuit serves as the central appellate court for U.S. patent law appeals. Outside of patent law, scholars have noted the Federal Circuit’s distinct lack of influence on the law. Thus, unnoticed, the Federal Circuit has become one of the most influential actors in the creation of intellectual property licensing law. Its influence reaches across all areas of intellectual property, industries, and all federal circuits and state courts. But the Federal Circuit’s influence on licensing law is more than just a matter of academic interest: licensing is critical to innovation in the information economy. Licenses underlie the creation and distribution of ideas, information, inventions, and works. Products as diverse as open source software and soybean seed rely on licensing. The Federal Circuit’s influence emerged out of failed attempts to create uniform statutory licensing law, which has left licensing law to develop as common law. Since its creation in 1982, the Federal Circuit has decided more cases involving licensing law than any other state or federal court. Many courts have looked to and followed the Federal Circuit’s decisions. The Federal Circuit’s general approach has been to uphold modern licensing models, which fosters both technological and business model innovation. This approach is consistent with the approach taken by most other courts, including the Supreme Court. At the urging of the U.S. Solicitor General and others, the Supreme Court probed the Federal Circuit’s licensing law jurisprudence in a recent case, Quanta Computer, Inc. v. LG Electronics, Inc. [128 S.Ct. 2109 (2008)] While the Supreme Court reversed the Federal Circuit in a unanimous decision, upon close inspection, the reversal actually amounts to an affirmation of the Federal Circuit’s core licensing-law jurisprudence. This Article begins by describing in Part I the emergence of licensing as the dominant transaction model in the information economy. It then explores in Part II the development of licensing law in the United States and how, in the wake of failed attempts to create uniform statutory licensing law, the law has evolved largely as common law. This Article then explains in Part III and Part IV how the Federal Circuit has begun to shape this common law by deciding more and more cases involving licenses, and how other courts now look to the Federal Circuit for guidance in deciding licensing-related cases. In Part V, this Article explores the nature of the Federal Circuit’s licensing-law jurisprudence, focusing on its “first sale” jurisprudence. This Part also examines how the Federal Circuit’s case law meshes with the decisions of other circuits and the Supreme Court, including the Supreme Court’s recent Quanta Computer decision. This Article concludes in Part VI that the Federal Circuit has been a good but sometimes imperfect steward of modern licensing practices. This is well illustrated by the Quanta Computer case. In that case, the Supreme Court unanimously overturned the Federal Circuit’s ruling, yet left the Federal Circuit’s core licensing-law jurisprudence relatively intact despite numerous urgings through amicus briefs and academic literature to send a stern corrective message to the Federal Circuit as it had in several recent patent cases. This Article also highlights some areas that the Federal Circuit should give heightened attention to, given its highly influential role in the creation of licensing law

The Federal Circuit\u27s Licensing Law Jurisprudence: Its Nature and Influence

The Federal Circuit serves as the central appellate court for U.S. patent law appeals. Outside of patent law, scholars have noted the Federal Circuit’s distinct lack of influence on the law. Thus, unnoticed, the Federal Circuit has become one of the most influential actors in the creation of intellectual property licensing law. Its influence reaches across all areas of intellectual property, industries, and all federal circuits and state courts. But the Federal Circuit’s influence on licensing law is more than just a matter of academic interest: licensing is critical to innovation in the information economy. Licenses underlie the creation and distribution of ideas, information, inventions, and works. Products as diverse as open source software and soybean seed rely on licensing. The Federal Circuit’s influence emerged out of failed attempts to create uniform statutory licensing law, which has left licensing law to develop as common law. Since its creation in 1982, the Federal Circuit has decided more cases involving licensing law than any other state or federal court. Many courts have looked to and followed the Federal Circuit’s decisions. The Federal Circuit’s general approach has been to uphold modern licensing models, which fosters both technological and business model innovation. This approach is consistent with the approach taken by most other courts, including the Supreme Court. At the urging of the U.S. Solicitor General and others, the Supreme Court probed the Federal Circuit’s licensing law jurisprudence in a recent case, Quanta Computer, Inc. v. LG Electronics, Inc. While the Supreme Court reversed the Federal Circuit in a unanimous decision, upon close inspection, the reversal actually amounts to an affirmation of the Federal Circuit’s core licensing-law jurisprudence

Food Safety and Security in the Monsanto Era: Peering Through the Lens of a Rights Paradigm Against an Onslaught of Corporate Domination

Since our earliest ancestors’ desire for a better hunting weapon to procure food or a better storage facility to avoid spoilage, food safety and security has shaped human social and technological evolution like no other essential element. The need to procure food has shaped our civilization since the first human graced our planet. Food continues to be a pivotal force in humankind’s saga for life and death. Yet, despite stratospheric progress in scientific application surrounding food, food security and safety for all citizens continues to elude mankind. Why do some enjoy a feast, while others suffer in famine? This essay will consider this very disturbing characteristic of human civilization from and American legal perspective. The critical place of food in the continuation of human existence manifests itself in countless forms of human endeavors that animate mankind’s quest for food security. To many, within their sociological context, food is also sacred and sublime. Witnessed through the behavioral construct of many cultures, food is revered—even offered to gods and goddesses prior to consumption. Yet, as the false promise of food security ushered in an era of advanced biotechnology applications for food generation, food security has virtually disappeared into the labyrinth of mass corporation. Despite unprecedented scientific advancement and technological sophistication, safety and security continues to elude man’s quest for food. Even the uber-advanced Western civilization suffers from this paradox. This essay attempts to explain this paradox by examining food security and safety in the U.S. through two distinct legal paradigms: biotechnology regulation and intellectual property law. With this objective in mind, I will make some observations related to food safety and security in the U.S. in Section II. This leads to a discussion of the regulatory landscape of biotechnology seeds in Section III, where I identify the regulatory framework’s fragmented status and the cause of inertia within the current system. In Section IV, I make some further observations about the current patent framework’s contribution to the evolving menace of transgenic pollution, paving the way for a peek at the microcosm represented by the pending Supreme Court case of Bowman v. Monsanto in Section V. In Section VI, I offer commentary on a much less discussed narrative for food law in the U.S.—one which recognizes the linkages between and weaknesses of the two frameworks. I conclude, in Section VII, by noting that at the heart of food security problem in America is the missing recognition of fundamental human rights for all individuals, which, when taken in conjunction with the existing legal modalities provides a better interpretation of food law. This illumination can then he used to frame the dialogue surrounding the future of food safety and security in the U.S

Food Safety and Security in the Monsanto Era: Peering Through the Lens of a Rights Paradigm Against an Onslaught of Corporate Domination

Since our earliest ancestors’ desire for a better hunting weapon to procure food or a better storage facility to avoid spoilage, food safety and security has shaped human social and technological evolution like no other essential element. The need to procure food has shaped our civilization since the first human graced our planet. Food continues to be a pivotal force in humankind’s saga for life and death. Yet, despite stratospheric progress in scientific application surrounding food, food security and safety for all citizens continues to elude mankind. Why do some enjoy a feast, while others suffer in famine? This essay will consider this very disturbing characteristic of human civilization from and American legal perspective. The critical place of food in the continuation of human existence manifests itself in countless forms of human endeavors that animate mankind’s quest for food security. To many, within their sociological context, food is also sacred and sublime. Witnessed through the behavioral construct of many cultures, food is revered—even offered to gods and goddesses prior to consumption. Yet, as the false promise of food security ushered in an era of advanced biotechnology applications for food generation, food security has virtually disappeared into the labyrinth of mass corporation. Despite unprecedented scientific advancement and technological sophistication, safety and security continues to elude man’s quest for food. Even the uber-advanced Western civilization suffers from this paradox. This essay attempts to explain this paradox by examining food security and safety in the U.S. through two distinct legal paradigms: biotechnology regulation and intellectual property law. With this objective in mind, I will make some observations related to food safety and security in the U.S. in Section II. This leads to a discussion of the regulatory landscape of biotechnology seeds in Section III, where I identify the regulatory framework’s fragmented status and the cause of inertia within the current system. In Section IV, I make some further observations about the current patent framework’s contribution to the evolving menace of transgenic pollution, paving the way for a peek at the microcosm represented by the pending Supreme Court case of Bowman v. Monsanto in Section V. In Section VI, I offer commentary on a much less discussed narrative for food law in the U.S.—one which recognizes the linkages between and weaknesses of the two frameworks. I conclude, in Section VII, by noting that at the heart of food security problem in America is the missing recognition of fundamental human rights for all individuals, which, when taken in conjunction with the existing legal modalities provides a better interpretation of food law. This illumination can then he used to frame the dialogue surrounding the future of food safety and security in the U.S

The Supreme Court’s Chief Justice of Intellectual Property Law

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions that call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as the most prolific author of patent law opinions in the history of the Supreme Court. Thus, at a time when intellectual property has become one of America’s most important assets, Justice Thomas has played an important role in the evolution of America’s innovation law and policy.This Article is the first to highlight the significance of Justice Thomas’s intellectual property jurisprudence. It considers how Justice Thomas emerged as the Roberts Court’s “chief justice” of intellectual property law, authoring more majority opinions than even colleagues known for their intellectual property law prowess. The Article analyzes Justice Thomas’s key intellectual property opinions to understand their importance. It also highlights the distinguishing features of these opinions, including their faithful adherence to textualism, appreciation for the role of remedies, attention to technological and business context, awareness of the impact on intellectual property practitioners, and surprising unanimity. The Article concludes that Justice Thomas’s deep respect for the constitutional separation of powers is at the heart of his intellectual property jurisprudence, as his opinions invite and sometimes nudge Congress to play its leading role in crafting intellectual property law

The Supreme Court’s Chief Justice of Intellectual Property Law

Justice Clarence Thomas is one of the most recognizable members of the United States Supreme Court. Many people recall his stormy Senate confirmation hearing and notice his fiery dissenting opinions that call on the Court to reflect the original public meaning of the Constitution. Yet observers have missed one of Justice Thomas’s most significant contributions to the Court—his intellectual property law jurisprudence. Justice Thomas has authored more majority opinions in intellectual property cases than any other Justice in the Roberts Court era and now ranks as the most prolific author of patent law opinions in the history of the Supreme Court. Thus, at a time when intellectual property has become one of America’s most important assets, Justice Thomas has played an important role in the evolution of America’s innovation law and policy.This Article is the first to highlight the significance of Justice Thomas’s intellectual property jurisprudence. It considers how Justice Thomas emerged as the Roberts Court’s “chief justice” of intellectual property law, authoring more majority opinions than even colleagues known for their intellectual property law prowess. The Article analyzes Justice Thomas’s key intellectual property opinions to understand their importance. It also highlights the distinguishing features of these opinions, including their faithful adherence to textualism, appreciation for the role of remedies, attention to technological and business context, awareness of the impact on intellectual property practitioners, and surprising unanimity. The Article concludes that Justice Thomas’s deep respect for the constitutional separation of powers is at the heart of his intellectual property jurisprudence, as his opinions invite and sometimes nudge Congress to play its leading role in crafting intellectual property law

Living with Monsanto

Article published in the Michigan State Law Review

A Numerus Clausus Principle for Intellectual Property

Real property can only be held and conveyed in a small number of forms, such as fee simple, life estate, and lease. This principle is known as numerus clausus, meaning “the number is closed.” For centuries, the principle has been central to the common-law system of property rights. Scholars have justified it as a mechanism for facilitating effective property alienation, maintaining low transaction costs in the buying and selling of property, and keeping the scope of property owners’ rights clear. In contrast, the numerus clausus principle is essentially nonexistent in intellectual property law. In the context of patents and copyrights, “the number is open.” There is nearly no limit to the ways in which intellectual objects can be licensed and sold. This Article will argue that the numerus clausus principle should extend to intellectual property. The justifications for the numerus clausus principle in real property law are even more persuasive in the intellectual property context because the scope of intellectual property rights is more difficult to delineate than the scope of real property rights. The metaphysical nature of intellectual property prevents protected objects from being clearly identifiable, particularly in a patent context, where inventions can be independently created by multiple parties. As a result, investigating the sale and licensing history of a work or invention — and whether a work or invention is protected at all — is difficult, costly, and sometimes impossible. This difficulty is compounded by the absence of numerus clausus, which permits inscrutable licensing and sale agreements and allows single works to be carved into several parts and burdened by complicated usage rules. By considering examples of digital content licensing and fragmentation of particular copyrights, this Article will identify how a numerus clausus principle for intellectual property would facilitate the use and conveyance of intellectual property. This principle would benefit intellectual property owners, licensees, and the general public by lowering transaction costs and preventing accidental overuse and underuse of intellectual works

Patent Law: An Open-Source Casebook (Chapter 8: Defenses)

Less than a handful of casebooks are truly open source, in the sense of being fully modifiable. Patent Law: An Open-Source Casebook is the first patent law casebook that provides adopting professors, students, and others the ability to fully modify its contents. This chapter of the casebook covers defenses to infringement, including inequitable conduct, patent exhaustion, patent misuse, laches, equitable estoppel, experimental use, and spoliation of evidence