On Courts Herding Cats: Contending with the “Written Description” Requirement (and Other Unruly Patent Disclosure Doctrines)

This Essay explores the problem of incoherence among modern disclosure doctrines

Patent Abolitionism

In this Article, Professor Janis argues that modem enthusiasm for large-scale legislative reforms in patent law should be received with caution in view of the history of patent law reform. That history suggests that patent law is more resilient--or perhaps more impervious to change-than modem reformers recognize. To explore these propositions, Professor Janis analyzes the history of the mid-Victorian era British patent abolitionism movement. He demonstrates that much of the reform dialogue of that era, from the elucidation of major problems in the patent system, to the formulation of legislative solutions, mirrors quite closely the modem U.S. patent reform debate. He asserts that participants in the modern patent law reform debate should take this history to heart, approaching age-old proposals for large-scale legislative reform with healthy skepticism

Patent Law in the Age of the Invisible Supreme Court

This article examines the permanence of the U.S. Supreme Court\u27s retreat to the peripheries of patent law after the creation of the Federal Circuit, and explores the roles that the Supreme Court might imagine for itself in contemporary patent law. For discussion purposes, the article describes two hypothetical models for Supreme Court decisionmaking in patent cases: an aggressive interventionist model and an extreme non-interventionist model. After considering the shortcomings of both models, the article proposes an intermediate, managerial model. The managerial model rejects the proposition that the Court should intervene in patent cases to correct perceived substantive errors in Federal Circuit decisions. Instead, the model encourages the Court to manage disputes over the appropriate allocation of power among institutions of the patent system. Accordingly, the Court should intervene in patent cases that present such issues, and should direct its opinions towards resolving such issues, leaving the elaboration of detailed substantive patent doctrine to the Federal Circuit

Patent Abolitionism

In this Article, Professor Janis argues that modem enthusiasm for large-scale legislative reforms in patent law should be received with caution in view of the history of patent law reform. That history suggests that patent law is more resilient--or perhaps more impervious to change-than modem reformers recognize. To explore these propositions, Professor Janis analyzes the history of the mid-Victorian era British patent abolitionism movement. He demonstrates that much of the reform dialogue of that era, from the elucidation of major problems in the patent system, to the formulation of legislative solutions, mirrors quite closely the modem U.S. patent reform debate. He asserts that participants in the modern patent law reform debate should take this history to heart, approaching age-old proposals for large-scale legislative reform with healthy skepticism

A Closer Look at the Eye Test: The British Influence on Early American Design Patent Infringement Law

The Supreme Court has asserted that “[t]he Patent Clause in our Constitution ‘was written against the backdrop’ of the English system.” That notion has a long lineage. In 1818, the author of an anonymous “Note on the Patent Laws,” widely assumed to be Justice Story, claimed that “[t]he patent acts of the United States are, in a great degree, founded on the principles and usages which have grown out of the English statute on the same subject.” But these generalizations significantly overstate—and oversimplify—the influence of British law on the nascent American jurisprudence of patents. Early American jurists felt no reluctance about borrowing from British law, but they felt no evident obligation to do so, either. Faced with a paucity (or utter absence) of American precedents, judges in early American patent cases pretty well did whatever they pleased, sometimes relying on British decisions to fill in gaps in American law, sometimes distinguishing British from American law, and sometimes citing nothing at all. Thus, when the Supreme Court penned its first opinion on design patent infringement in the December 1871 term—Gorham v. White—it was not entirely surprising that the Court’s lone reference to authority was to a single case from the British courts, the Holdsworth case. Still, the Court’s reliance on Holdsworth is remarkable, for reasons I explore in this article. Part I briefly recounts the British lineage of American design patent law. Part II shows the ways in which the Court relied on the British Holdsworth case in deciding Gorham. Part III takes a closer look at Holdsworth’s influence on British design law, and compares that story to the story of the evolution of American rules for design patent infringement

Rules v. Standards for Patent Law in the Plant Sciences

This article argues that US patent jurisprudence as applied to the plant sciences is moving to a second stage that will be characterized by more by incremental calibration than by spectacular change. The article discusses two doctrines of patent scope that are likely to be implicated in calibrating the utility patent system for the plant sciences: enablement and experimental use. It considers how those doctrines may be refined to serve as calibration tools in the application of patent law to the plant sciences