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

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 inventors to modify the scope of their claimed inventions, even after the patent issues, is in direct tension with the concepts of public notice and the public domain. The Patent Act currently permits broadening of claims so long as a reissue application demonstrating intent to broaden is filed within two years of the original patent issue. Over the years, however, this relatively straightforward statutory provision has sparked numerous disputes over its meaning and application. On September 8, 2011, the Court of Appeals for the Federal Circuit heard oral arguments or In re Staats. In this case, Apple Computer, Inc. appeals the rejection of a continuation reissue patent application. The U.S. Patent & Trademark Office and the Board of Patent Appeals and Interferences rejected the application on the grounds that Apple attempted to broaden the scope of its patent claims in a manner not “foreseeable” more than eight years after the patent first issued. Apple contends that the language of the statute and prior case law permit its interpretation, and the application should be allowed in the interest of innovation. This issue is hardly a new one—this submission highlights nearly 140 years of case law, legislative history, and statutory shaping pertaining to broadening reissues. We analyze the issues raised in the briefs from Staats, as well as the oral arguments. Finally, we discuss from a practitioner’s perspective what the Federal Circuit could do—and should do—in the field of broadening reissues

What Patent Attorney Fee Awards Really Look Like

This Essay provides an empirical account of attorney fee awards over the last decade of patent litigation. Given the current attention in legislative proposals and on the Supreme Court’s docket to more liberal fee shifting as a check on abusive patent litigation, a fuller descriptive understanding of the current regime is of utmost importance to forming sound patent-litigation policy. Following a brief overview of judicial experience in patent cases and trends in patent-case filing, this study presents analysis of over 200 attorney fee award orders from 2003–2013

The Uneasy Case for Patent Federalism

Nationwide uniformity is often considered an essential feature of the patent system, necessary to fulfill that system’s disclosure and incentive purposes. In the last few years, however, more than half the states have enacted laws that seek to disrupt this uniformity by making it harder for patent holders to enforce their patents. There is an easy case to be made against giving states greater authority over the patent system: doing so would threaten to disrupt the system’s balance between innovation incentives and a robust public domain and would permit rent seeking by states that disproportionately produce or consume innovation. There is, nevertheless, an uneasy case that this particular form of patent federalism may be a good thing. The federal patent system has systemic flaws that lead to low-quality patents, nuisance patent litigation, and patent trolls exploiting asymmetric bargaining power. And efforts to address these flaws have faltered, or have had limited effects, due to public-choice dynamics in the patent system, so the scope of patent protections has expanded over time without regard to the system’s purpose of encouraging innovation. States may help address some of these problems not in spite of, but because of, their own flaws. States have their own public-choice dynamics that happen to offset some of the flaws of the federal system. State anti-patent laws have been driven largely by small businesses and local small-business groups, which, unlike most patent holders, have preexisting influence in state government. And the laws they have crafted using this influence are well-targeted to affect only the most troublesome patent cases: nuisance cases, cases asserting low-quality patents, and cases targeting end users. States pushing back with anti-patent laws, then, may represent an effective second-best solution to the problem of harmful patent assertions. Moreover, recognizing the dynamics that led to these laws may provide helpful insights in designing federal patent reforms

The Uneasy Case for Patent Federalism

Nationwide uniformity is often considered an essential feature of the patent system, necessary to fulfill that system’s disclosure and incentive purposes. In the last few years, however, more than half the states have enacted laws that seek to disrupt this uniformity by making it harder for patent holders to enforce their patents. There is an easy case to be made against giving states greater authority over the patent system: doing so would threaten to disrupt the system’s balance between innovation incentives and a robust public domain and would permit rent seeking by states that disproportionately produce or consume innovation. There is, nevertheless, an uneasy case that this particular form of patent federalism may be a good thing. The federal patent system has systemic flaws that lead to low-quality patents, nuisance patent litigation, and patent trolls exploiting asymmetric bargaining power. And efforts to address these flaws have faltered, or have had limited effects, due to public-choice dynamics in the patent system, so the scope of patent protections has expanded over time without regard to the system’s purpose of encouraging innovation. States may help address some of these problems not in spite of, but because of, their own flaws. States have their own public-choice dynamics that happen to offset some of the flaws of the federal system. State anti-patent laws have been driven largely by small businesses and local small-business groups, which, unlike most patent holders, have preexisting influence in state government. And the laws they have crafted using this influence are well-targeted to affect only the most troublesome patent cases: nuisance cases, cases asserting low-quality patents, and cases targeting end users. States pushing back with anti-patent laws, then, may represent an effective second-best solution to the problem of harmful patent assertions. Moreover, recognizing the dynamics that led to these laws may provide helpful insights in designing federal patent reforms

The Benefits and Beneficiaries of "Public" Investment in Herbicide Use Research and Development

The allocation of benefits from research and development of new herbicide uses is dependent on patent status. The agricultural chemical industry will preferentially invest in herbicide R&D that increases the use of on-patent herbicides from which a company can capture a price premium. The distribution of benefits from increased use of on-patent herbicide will alter over time, with grain growers benefiting at the expense of agrichemical companies once the patent expires. Public sector investment in herbicide R&D may also benefit the agrichemical industry. The size and allocation of the benefits from R&D into on-patent herbicides is analyzed using economic surplus techniques. Two case studies are examined. One involves research into the choice and application of herbicide for new wheat varieties. The second case study involves returns from R&D investment in research into an alternative for the commonly used off-patent herbicide trifluralin. The results from the case studies show that herbicide patent status may not have important implications for "public" R&D investment decisions.Research and Development/Tech Change/Emerging Technologies, Q16, Q18, Q28,

Social and Technological Efficiency of Patent Systems

This article develops an evolutionary model of industry dynamics in order to carry out a richer theoretical analysis of the consequences of a stronger patent system. The first results obtained in our article are rather consistent with the anti-patent arguments and they do not favour the case for a stronger patent system: higher social welfare and technical progress are observed in our model in industries with milder patent systems (lower patent height and patent life).Innovation, technical progress, patent system, Intellectual property rights,

Non-magnetic battery case Patent

Nonmagnetic hermetically sealed battery case made of epoxy resin and woven glass tape for use with electrochemical cells in spacecraf

Patent Analytics Based on Feature Vector Space Model: A Case of IoT

The number of approved patents worldwide increases rapidly each year, which requires new patent analytics to efficiently mine the valuable information attached to these patents. Vector space model (VSM) represents documents as high-dimensional vectors, where each dimension corresponds to a unique term. While originally proposed for information retrieval systems, VSM has also seen wide applications in patent analytics, and used as a fundamental tool to map patent documents to structured data. However, VSM method suffers from several limitations when applied to patent analysis tasks, such as loss of sentence-level semantics and curse-of-dimensionality problems. In order to address the above limitations, we propose a patent analytics based on feature vector space model (FVSM), where the FVSM is constructed by mapping patent documents to feature vectors extracted by convolutional neural networks (CNN). The applications of FVSM for three typical patent analysis tasks, i.e., patents similarity comparison, patent clustering, and patent map generation are discussed. A case study using patents related to Internet of Things (IoT) technology is illustrated to demonstrate the performance and effectiveness of FVSM. The proposed FVSM can be adopted by other patent analysis studies to replace VSM, based on which various big data learning tasks can be performed

Who’s Afraid of amazon.com v. barnesandnoble.com?

On October 2, 2000, the Court of Appeals for the Federal Circuit heard the appeal in the case of Amazon.com, Inc. v. Barnesandnoble.com, Inc. This appeal revolves around the alleged infringement by Barnesandnoble.com of a one-click web-shopping system patented by Amazon.com. The one-click system is among a series of recent controversial business method patents. According to some, business methods are legitimate inventions that deserve the protection of the US Patent and Trademark Office (PTO). According to others, business methods are unworthy of patent protection and may inhibit innovation in e-commerce. The outcome of this case has been widely anticipated by both sides of the business method patent debate as a signal that these patents will or will not be upheld by courts

Licensing Complementary Patents: “Patent Trolls”, Market Structure, and “Excessive” Royalties

The infamous Blackberry case brought new attention to so-called “patent trolls” and began the general association of trolls with “non-practicing” patent holders. This has had important legal consequences: Namely, patent holders have been denied injunctive relief because they did not practice the patents themselves. In this paper we analyze how patent holders –– both non-practicing and vertically integrated –– choose their royalties depending on the structure of the upstream and downstream markets and the types of licensing agreements available. We show that a vertically integrated firm has an incentive to raise its rivals’ costs and to restrict entry on the downstream market; incentives that do not hold for non-integrated patent holders. An automatic presumption that a non-integrated patent holder will charge higher royalties than a vertically integrated company is therefore unfounded. Whether a company charges “excessive” royalties depends on whether there is scope for hold-up, either because of sunk investments on the part of potential licensees or because of “weak” patents held by the licensor. These factors are orthogonal to whether patent holders are practicing or no