The Effect of Quadrature Errors in the Computation of L^2 Piecewise Polynomial Approximations

In this paper we investigate the L^2 piecewise polynomial approximation problem. L^2 bounds for the derivatives of the error in approximating sufficiently smooth functions by polynomial splines follow immediately from the analogous results for polynomial spline interpolation. We derive L^2 bounds for the errors introduced by the use of two types of quadrature rules for the numerical computation of L^2 piecewise polynomial approximations. These bounds enable us to present some asymptotic results and to examine the consistent convergence of appropriately chosen sequences of such approximations. Some numerical results are also included

Liberty and Property in the Patent Law

Patents have seldom troubled civil libertarians. A specialized form of property, patents seemed pertinent to the technologies of traditional industry but little else. Patent instruments offered their readers mere technical documentation; patent cases presented no more than the mapping of a text onto an instantiated artifact; patent policy was principally oriented toward economic optimization of the length and scope of protection. Unbound from technology, contemporary patent law now seems a more robust discipline. Modern patent instruments appropriate a diverse array of techniques that span the entire range of human endeavor. Patent claims, cut loose from physical moorings, have grown more abstract and oriented toward human behavior. We have yet to realize fully the consequences of postindustrial patenting, but the potential impact of the patent law upon personal liberties is becoming more apparent and more worthy of concern. Although the principles of the patent canon demonstrate sufficient flexibility to regulate uses of such inventions as software, business methods, and genetic fragments, they persist in bearing little regard for civil rights. The private rule making, made possible through the patent law, holds the potential to impinge upon individual liberties in ways not previously considered possible

The Resurrection of the Duty to Inquire After Therasense v. Becton, Dickinson & Co.

Balancing a duty to a tribunal and a duty to a client can paralyze a lawyer. The task raises difficult questions about how to reconcile competing obligations as an advocate and as an officer of the court. Individuals licensed to prosecute patent applications must decide how to honor both their obligations to the Patent and Trademark Office (PTO) and their obligation to successfully prosecute patent applications. This burden can result in willful blindness, where the patent attorney or patent agent (“patent practitioner”) limits inquiry into information that may bar a patent application. The recent Federal Circuit opinion in Therasense may have eliminated the judicial “duty to inquire” doctrine that kept these obligations in balance. This Issue Brief argues that there is a need to protect against willful blindness and proposes a resurrection of the eliminated doctrines

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

A Simple Theory of Defensive Patenting

This paper examines innovating firms’ incentives to engage in defensive patenting. It first establishes a “truce equilibrium” in patent enforcement: when litigation is costly, the equal strength of two symmetric parties’ patent portfolios deters any patent disputes along the equilibrium path. This equilibrium behavior generates two benefits of defensive patenting, namely, to prevent licensing outlays and to protect downstream investments. In addition, firms can use patents to coordinate non-contractible investment decisions. Depending on the joint interests, they can either reach a license in order to guarantee high investment incentives, or agree not to grant a license so that investments are deterred by the litigation threat. On the other hand, the strategic patenting concern may generate a bandwagon of patent accumulation, where firms rush to the patent office to get a patent, but the subsequent investment performance is the same as when there is no patent at all. The paper also argues that defensive patenting may weaken the effectiveness of patents as an appropriation scheme. This offers an explanation that the “pro-patent” policy shift in the United States since the 1980s may actually have undermined the incentive power of the patent system

Patent Reform and Best Mode: A Signal to the Patent Office or a Step Toward Elimination?

On September 16, 2011, President Obama signed the America Invents Act (AIA), the first major overhaul of the patent system in nearly sixty years. This article analyzes the recent change to patent law\u27s best mode requirement under the AIA. Before the AIA, patent applicants were required, at the time of submitting their application, to disclose the best mode of carrying out the invention as contemplated by the inventor. A failure to disclose the best mode was a basis for a finding of invalidity of the relevant claims or could render the entire patent unenforceable under the doctrine of inequitable conduct. The AIA still requires patent applicants to disclose the best mode, but has removed the traditional enforcement mechanisms – declarations of invalidity and unenforceability – as defenses to patent infringement. In this article, I propose and explore a couple innovative techniques that could be used to add teeth to the seemingly toothless best mode requirement. Ultimately, I reject these proposals as not being workable solutions and suggest that Congress\u27s resolution of the best mode problem is nonsensical and that it should completely eliminate the requirement rather than sending mixed signals to the Patent Office and patent practitioners

How to measure patent thickets – a novel approach

The existing literature identifies patent thickets indirectly. In this paper we propose a novel measure based on patent citations which allows us to measure the density of patent thickets directly. We discuss the algorithm which generates the measure and present descriptive results validating it. Moreover, we identify technology areas which are particularly impacted by patent thickets

The Fate of Gene Patents Under the New Utility Guidelines

The United States Patent and Trademark Office (PTO) recently finalized its patent utility guidelines. Promulgated by the PTO, the new guidelines will be used by patent examiners in determining whether a claimed invention should be awarded patent protection ;and will be used by patent applicants and attorneys who file patent applications. The guidelines focus primarily on the utility standards for gene and gene fragment patents, an issue that was featured in the PTO\u27s 1999 Revised Interim Utility Guidelines and has been the subject of considerable public debate

International patent protection: Time for a fully EU functioning supra-national patent mechanism

Larger industrial companies have become increasingly global in their functions and aspirations. With regard to patents, it is increasingly common for a multinational company to face alleged infringing acts committed by the same competitor in several countries. Securing international patent protection both at the acquisition and the enforcement stage is the corollary to the cross border exploitation of patents. The regulation of transnational trade and the international exploitation of patent rights have brought about international agreements concerning these closely related issues, such as international patent granting power, international harmonization of patent laws and uniform systems of jurisdiction and choice of law rules applicable to patent enforcement as well as other areas. However, there is an increasingly strained relationship between international patent acquisition and enforcement1 which is the dominant focus of this paper. Whilst a network of international agreements facilitates the grant of increasingly similar patent rights in many countries, cross border patent enforcement through the application of the relevant private international rules has been very weak. From a private international law perspective, the legal independence and territorial limitations of patent rights has severe implications for the application of the relevant jurisdictional and choice of law rules. Therefore, cross-border adjudication has indeed been challenged in the patent area. This paper seeks to focus on the problems associated with acquiring and enforcing patent rights at a multijurisdictional level, particularly within the EU

Who Cares About Patents? Cross-Industry Differences in the Marginal Value of Patent Term

How much do market participants in different industries value a marginal change in patent term (i.e., duration of patent protection)? We explore this research question by measuring the behavioral response of patentees to a rare natural experiment: a change in patent term rules, due to passage of the TRIPS agreement. We find significant heterogeneity in patentee behavior across industries, some of which follows conventional wisdom (patent term is important in pharmaceuticals) and some of which does not (it also appears to matter for some software). Our measure is highly correlated with patent renewal rates across industries, suggesting the marginal value of patent term increases with higher expected profits toward the end of term