Washington and Lee law professor Christopher Seaman recently published a new article in the Iowa Law Review. The new article, titled Permanent Injunctions in Patent Litigation After eBay: An Empirical Study, appears in volume 101 of the journal.
Since its posting on SSRN Permanent Injunctions in Patent Litigation After eBay: An Empirical Study has climbed into the SSRN All Time Top Papers list for patents.
The datasets for this project are also now available online in Scholarly Commons.
From the abstract:
The Supreme Court’s 2006 decision in eBay v. MercExchange is widely regarded as one of the most important patent law rulings of the past decade. Historically, patent holders who won on the merits in litigation nearly always obtained a permanent injunction against infringers. In eBay, the Court unanimously rejected this “general rule” that a prevailing patentee is entitled to an injunction, instead holding that lower courts must apply a four-factor test before granting such relief. Almost ten years later, however, significant questions remain regarding how this four-factor test is being applied, as there has there has been little rigorous empirical examination of eBay’s actual impact in patent litigation.
This Article helps fill this gap in the literature by reporting the results of an original empirical study of contested permanent injunction decisions in district courts for a 7½ year period following eBay. It finds that eBay has effectively created a bifurcated regime for patent remedies, where operating companies who compete against an infringer still obtain permanent injunctions in the vast majority of cases that are successfully litigated to judgment. In contrast, non-practicing entities almost always are denied injunctive relief. These findings are robust even after controlling for the field of patented technology and the particular court that decided the injunction request. It also finds that permanent injunction rates vary significantly based on patented technology and forum. Finally, this Article considers some implications of these findings for both participants in the patent system and policy makers.
Washington and Lee law professor Victoria Sahani recently published an article to Law360.com. The article, titled “The Latest State To Regulate 3rd-Party Funding By Statute”, is published in the Legal Industry section of the site as featured expert analysis. Professor Sahani’s article discusses Indiana’s recently adopted statute which authorizes and regulates the consumer third-party litigation funding industry.
The full text of the article is available to the W&L Law community here. (log in required for off-campus access).
Washington and Lee law professor Lyman Johnson presented at the annual Fiduciary Law Workshop, held this year at Duke Law School. The Fiduciary Law Workshop is intended to foster broad scholarly interest in the field. The Workshop is open to scholars whose work is historical, doctrinal, economic, philosophical, or empirical in methodology.
Prof. Johnson presented his paper titled “Relating Fiduciary Duties to Corporate Personhood and Corporate Purpose.” He was one of twelve scholars to present during the workshop. From the paper:
Corporate personhood and corporate purpose should be taken seriously in theory and doctrine by taking the corporate entity as a socio-legal institution seriously; that is, as a person distinct from associated persons both in juridical status and in its organizational purpose(s). This should extend into the realm of fiduciary duties as well. Coherence demands that the director duties of care and loyalty run to the corporation, at least with respect to the purpose of the corporation. Delaware’s corporation statute, after all, charges the board of directors to direct the business and affairs of the corporation itself, not those of stockholders. And its formulation of the business judgment rule presumes, likewise, that directors are acting in the best interests of the 99 Gold and Miller (2014) (collection). 35 corporation.
Washington and Lee law professor Christopher Seaman recently presented a new research project at the U.S. Patent and Trademark Office. The presentation was part of the Roundtable on Empirical Methods in Intellectual Property co-hosted by Northwestern Law School, Cardozo Law School, and the USPTO on April 29, 2016.
The project is titled Patent Renewal Rates After Alice (with co-author Professor Will Hubbard of Baltimore Law). Professor Seaman and Professor Hubbard propose to study the impact of the U.S. Supreme Court’s decision in Alice Corp. v. CLS Bank Int’l, 134 S. Ct. 2347 (2014), regarding patentable subject matter on previously-issued patents by studying maintenance fee payments (which are required to renew a patent 4, 8, and 12 years after its issuance) between different technological classes.
Abstract: Patent Renewal Rates After Alice
Professor Christopher Seaman’s article The Case Against Federalizing Trade Secrecy, 101 Virginia Law Review 317 (2015), was selected for inclusion in the 2016 edition of the Intellectual Property Law Review. The volume, published annually by Thomas Reuters (West), features the best law review articles related to intellectual property published in last year as judged by the editorial staff. It covers major developments in patents, trademarks, and copyrights.
Many congratulations to Professor Seaman on the selection.
The full table of contents for the 2016 edition may be viewed here: Intellectual Property Review 2016
On May 12, 2016 Washington and Lee Law Professor Victoria Sahani was invited to present her research on third-party funding at the 2016 Judges’ In-Court Seminar for the United States District Court for the District of Minnesota. The audience included over 20 federal district court judges, magistrate judges, and bankruptcy judges seated in that district. Other presenters at the seminar included Magistrate Judge Andrew Wistrich of the United States District Court for the Central District of California, Professor Gregory Sisk of the University of St. Thomas School of Law, and several attorney practitioners.
Washington and Lee law professor Mark Drumbl has a new post at Justice in Conflict on the trial of Dominic Ongwen, child soldier in Uganda’s LRA. His post, titled “Shifting Narratives: Ongwen and Lubanga on the Effect of Child Soldiering,” examines the prosecution of Ongwen for various war crimes. Ongwen’s defense, ultimately unsuccessful, centered on the fact that he was abducted into the LRA as a child and should be excused because of the trauma he suffered at the hands of the LRA. From Prof. Drumbl’s post:
Reasonable minds can disagree as to whether the defense arguments have merit. The point of my commentary is not to revisit these arguments. Grounds for excluding responsibility may, moreover, be reassessed at trial where the burden on the prosecutor is higher than at the confirmation of charges stage. Nor is the point of my commentary to suggest how (and where) a Trial Chamber might hypothetically assess these arguments.
Instead, my point is to emphasize that international criminal law should proceed in consistent and predictable ways. Here, PTC II slipped. Its understanding of the agency of actual and former child soldiers in Ongwen departs from the understanding previously deployed by the Lubanga Trial and Appeals Chambers, in particular in the sentencing judgments.