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

Pre-Service Removal in the Forum Defendant\u27s Arsenal

This article is the first academic defense of pre-service removal in diversity cases by forum-state defendants under the “properly joined and served” language of 28 U.S.C. § 1441(b). Pre-service removal has proliferated nationally in recent years. Appellate courts, however, have been silent on the issue for two reasons: First, orders that remand a case to state court are statutorily non-reviewable on appeal. Second, cases retained in federal court and litigated to final judgment are highly unlikely, for reasons of judicial economy, to be voided for de novo readjudication in state court. After tracing the development of the removal statute and the historical concern of local prejudice, the article evaluates competing approaches of pre-service removal from U.S. District Court case law. The article concludes with a discussion of the Federal Courts Jurisdiction and Venue Clarification Act of 2011, currently being considered by Congress, and the changes it offers for removal jurisdiction

The Non-Doctrine of Redundancy

This Article explores and evaluates a controversial practice that the Patent Office undertook beginning early in the post-AIA regime, the practice of denying otherwise meritorious requests for review because of what the Office termed redundant grounds. The controversy over redundancy-based rejections had several sources. One was that making such rejections required the Patent Office to decide petitions piecemeal—and, indeed, the agency claimed that power for itself—even though it was not clear that this power lay within the statute. Another source was that the Patent Office persistently declined to explain what, in the agency\u27s view, did or did not constitute redundancy. Still another was that the Patent Office resisted Federal Circuit oversight of this practice by claiming unreviewable discretion as part of a larger campaign of self-immunization. This confluence of problematic agency choices has generated other, related controversies with AIA review as well, with a mixed record of success for the Patent Office. Yet while redundancy-based rejection now seems to be ebbing as a matter of agency policy, the underlying structural conditions that gave rise to the practice still persist and repay closer analytical and doctrinal scrutiny. This Article offers that scrutiny and discusses ways forward for AIA review

The Porous Court-Agency Border in Patent Law

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office encroachments on powers Congress left to the courts. This Article traces the statutory roots of those encroachments, their initial encouragement by the Supreme Court’s 2016 Cuozzo decision, and the recent resistance to their further expansion by the en banc Federal Circuit’s 2018 Wi-Fi One decision. Section I introduces the institutional history that underpins these developments. Section II summarizes the reallocation of ex post validity review power from the district courts to the Patent Office over the last third of a century, putting important attributes of Patent Office review into an administrative law context. Section III describes the particular powers being reallocated and discusses the importance of these powers to a well-functioning system for governing innovation as patent law seeks to do. Section IV reviews the recent en banc Federal Circuit decision in Wi-Fi One v. Broadcom and discusses its implications for the patent powers at stake

Expired Patents

This article presents a comprehensive empirical description of the public domain of technologies that have recently passed out of patent protection. From a new dataset of over 300,000 patents that expired during 2008–2012, the study examines technological, geographical, and procedural traits of newly public inventions as a basis for exploring the social value associated with their competitive use. Moreover, comparing these inventions to inventions newly patented during the same period enables more specific discussion of how the balance of innovation in the United States continues to change

Reconceiving the Patent Rocket Docket: An Empirical Study of Infringement Litigation 1985-2010

This Article presents the first survival model for systematically identifying and comparing United States district courts as patent rocket dockets, and for examining related trends in patent litigation. The conventional wisdom of rocket docket status in a judicial district tends to rely on average case disposition times and the availability of court rules for patent cases, as well as anecdotal information about well-known jurists with experience in patent adjudication.By comparison, this Article approaches rocket dockets through a quantitative investigation of recent historical trends in patent case filings as well as through market concentration analysis at the district court and circuit court levels of patent case filings. Most significantly, the Article provides an indexed ranking of district courts derived from survival analysis of case dispositions, marginal pendency, and court capacity based on data from over 44,000 patent infringement cases litigated during the 1985-2010 period.The results confirm that the currently prominent rocket dockets are, indeed, the Eastern District of Texas, the Eastern District of Virginia, and — most recently — the Western District of Wisconsin. The results also suggest, inter alia, that the Middle District of Florida and the Western District of Washington are emerging patent rocket dockets. The Article concludes with an outlook for future study on the differential effect of technology classes on case disposition speed within this framework

Reconceiving the Patent Rocket Docket: An Empirical Study of Infringement Litigation 1985–2010, 11 J. Marshall Rev. Intell. Prop. L. 58 (2011)

This Article presents the first survival model for systematically identifying and comparing United States district courts as patent rocket dockets, and for examining related trends in patent litigation. The conventional wisdom of rocket docket status in a judicial district tends to rely on average case disposition times and the availability of court rules for patent cases, as well as anecdotal information about well-known jurists with experience in patent adjudication. By comparison, this Article approaches rocket dockets through a quantitative investigation of recent historical trends in patent case filings as well as through market concentration analysis at the district court and circuit court levels of patent case filings. Most significantly, the Article provides an indexed ranking of district courts derived from survival analysis of case dispositions, marginal pendency, and court capacity based on data from over 44,000 patent infringement cases litigated during the 1985–2010 period. The results confirm that the currently prominent rocket dockets are, indeed, the Eastern District of Texas, the Eastern District of Virginia, and—most recently—the Western District of Wisconsin. The results also suggest, inter alia, that the Middle District of Florida and the Western District of Washington are emerging patent rocket dockets. The Article concludes with an outlook for future study on the differential effect of technology classes on case disposition speed within this framework

The Non-Doctrine of Redundancy

This Article explores and evaluates a controversial practice that the Patent Office undertook beginning early in the post-AIA regime, the practice of denying otherwise meritorious requests for review because of what the Office termed redundant grounds. The controversy over redundancy-based rejections had several sources. One was that making such rejections required the Patent Office to decide petitions piecemeal—and, indeed, the agency claimed that power for itself—even though it was not clear that this power lay within the statute. Another source was that the Patent Office persistently declined to explain what, in the agency\u27s view, did or did not constitute redundancy. Still another was that the Patent Office resisted Federal Circuit oversight of this practice by claiming unreviewable discretion as part of a larger campaign of self-immunization. This confluence of problematic agency choices has generated other, related controversies with AIA review as well, with a mixed record of success for the Patent Office. Yet while redundancy-based rejection now seems to be ebbing as a matter of agency policy, the underlying structural conditions that gave rise to the practice still persist and repay closer analytical and doctrinal scrutiny. This Article offers that scrutiny and discusses ways forward for AIA review

The Porous Court-Agency Border in Patent Law

The progression toward reevaluating patent validity in the administrative, rather than judicial, setting became overtly substitutionary in the America Invents Act. No longer content to encourage court litigants to rely on Patent Office expertise for faster, cheaper, and more accurate validity decisions, Congress in the AIA took steps to force a choice. The result is an emergent border between court and agency power in the U.S. patent system. By design, the border is not absolute. Concurrent activity in both settings over the same dispute remains possible. What is troubling is the systematic weakening of this border by Patent Office encroachments on powers Congress left to the courts. This Article traces the statutory roots of those encroachments, their initial encouragement by the Supreme Court’s 2016 Cuozzo decision, and the recent resistance to their further expansion by the en banc Federal Circuit’s 2018 Wi-Fi One decision