The Case for Contribution in Patent Law

Under tort law’s theory of contribution, when one party is sued, it can implead other parties that may be jointly and severally liable and ask that they pay their fair share of any judgment. Although contribution theory has spread to numerous wide-ranging areas of the law, patent law is not among them. Thus, when a manufacturer is sued for patent infringement, it cannot seek contribution from the component supplier that included the patented technology in its component. This omission from patent law has generated surprisingly little commentary. In the few instances where an accused infringer has sought a right of contribution, the district courts have concluded that contribution is somehow preempted by 35 U.S.C. 271(c), which governs contributory infringement. This article explains how these decisions have incorrectly conflated the two doctrines. Contribution determines how to apportion damages between different liable parties while contributory infringement helps identify which parties are liable. Once the courts appreciate this distinction, they can and should adopt contribution in patent law. Contribution is typically thought of as a mechanism that equitably spreads liability among different responsible parties. However, because of the availability of indemnification agreements, contribution performs a more limited version of that role in patent law. However, this article identifies a much less expected benefit unique to patent law. Contribution should lower royalty awards in component patent cases, an area where awards have been shown to be excessive. Relying on the behavioral economics concepts of “anchoring” and “coherence,” this article compares how juries act under the current system with how they would behave under a patent system applying contribution theory. The article suggests that applying contribution will lead to lower royalty awards that are based on the value of the individual components and not the larger multi-component products

Lost in Translation: How Practical Considerations in Kirtsaeng Demand International Exhaustion in Patent Law

This comment\u27s purpose is to explore whether the principles announced in Kirtsaeng should apply to the patent exhaustion doctrine. Part I begins by examining the history of patent exhaustion jurisprudence. It also introduces the competing theories international exhaustion and territorial exhaustion. Part II analyzes the effect of the recent Supreme Court decision in Kirtsaeng on the exhaustion doctrine in copyright. Part III contends that exhaustion doctrine polices the same practical problems in copyright as it does in patent law. Finally, the conclusion argues for an extension of the Kirtsaeng holding to the patent exhaustion doctrine

The Global Standards Wars: Patent and Competition Disputes in North America, Europe and Asia

Over the past decade there has been an increasing number of disputes concerning the enforcement and licensing of patents covering technical standards. These disputes have taken on a global character and often involve litigation in North America, Europe and Asia. And while many of the parties are the same in actions around the world, courts and governmental agencies in different jurisdictions have begun to develop distinctive approaches to some of these issues. Thus, while areas of convergence exist, national laws differ on important issues including the availability of injunctive relief for FRAND-encumbered SEPs, the appropriate method for calculating FRAND royalties, the competition implications of violating a FRAND commitment, and the contours of the FRAND non-discrimination obligation. Thus, at least until greater international harmonization is achieved, firms doing business globally must remain particularly attuned to the evolving legal landscape in this area. This paper presents a brief overview of recent disputes that have arisen around the world with respect to the acquisition, enforcement and licensing of patents that are essential to technical interoperability standards

Is There a New Extraterritoriality in Intellectual Property?

This Article proceeds as follows. Part I discusses the state of the law of extraterritoriality in copyright, trademark, and patent, as it stood before the Supreme Court’s recent intervention. This review demonstrates that all three disciplines were treating extraterritoriality very differently, and none were paying much attention to the presumption against extraterritoriality. Part II reviews a tetralogy of recent Supreme Court cases, describing the Court’s attempt to formalize its approach to extraterritoriality across all fields of law. Part III analyzes the state of IP law in the aftermath of this tetralogy of extraterritoriality cases. It concludes that there has been some impact on patent law, but virtually none on copyright or trademark. The Article assesses whether there is a new extraterritoriality for intellectual property and concludes that there is not: The Supreme Court’s efforts, at least in IP, have not led to greater coherence. While there may be reasons for the lower courts’ failure to follow the framework, it does represent a missed opportunity for cross-fertilization, at least among intellectual property regimes, if not across all fields of law. It also offers a call for the consideration of comity—looking to foreign law and potential conflicts—in deciding whether to apply U.S. law extraterritorially

The End of Ownership: Personal Property in the Digital Economy

An argument for retaining the notion of personal property in the products we “buy” in the digital marketplace. The open access edition of this book was made possible by generous funding from Arcadia – a charitable fund of Lisbet Rausing and Peter Baldwin. If you buy a book at the bookstore, you own it. You can take it home, scribble in the margins, put in on the shelf, lend it to a friend, sell it at a garage sale. But is the same thing true for the ebooks or other digital goods you buy? Retailers and copyright holders argue that you don\u27t own those purchases, you merely license them. That means your ebook vendor can delete the book from your device without warning or explanation—as Amazon deleted Orwell\u27s 1984 from the Kindles of surprised readers several years ago. These readers thought they owned their copies of 1984. Until, it turned out, they didn\u27t. In The End of Ownership, Aaron Perzanowski and Jason Schultz explore how notions of ownership have shifted in the digital marketplace, and make an argument for the benefits of personal property. Of course, ebooks, cloud storage, streaming, and other digital goods offer users convenience and flexibility. But, Perzanowski and Schultz warn, consumers should be aware of the tradeoffs involving user constraints, permanence, and privacy. The rights of private property are clear, but few people manage to read their end user agreements. Perzanowski and Schultz argue that introducing aspects of private property and ownership into the digital marketplace would offer both legal and economic benefits. But, most important, it would affirm our sense of self-direction and autonomy. If we own our purchases, we are free to make whatever lawful use of them we please. Technology need not constrain our freedom; it can also empower us.https://repository.law.umich.edu/books/1114/thumbnail.jp