Professor Seaman’s New Paper Featured on SSRN and Top Legal Blogs

August 17, 2015 Leave a comment
Prof. Christopher Seaman

Prof. Christopher Seaman

Washington and Lee law professor Christopher Seaman’s new paper Permanent Injunctions in Patent Litigation After eBay: An Empirical Study, was recently posted on SSRN and is listed in numerous Top Ten lists of most downloaded new articles, including Intellectual Property Law, Innovation Law and Policy, Experimental and Empirical Studies, and Judgments and Remedies

The article was also recently featured in posts on Patently-O, an influential patent law blog, Written Description, Legal Theory Blog, Empirical Legal Studies Blog, and Comparative Patent Remedies Blog.

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.

 

 

Professor Bruner’s Book Reviewed in the Business Ethics Quarterly

August 12, 2015 Leave a comment
Prof. Christopher Bruner

Prof. Christopher Bruner

A review of Washington and Lee law professor Christopher Bruner’s book, Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power, has been published by the Business Ethics Quarterly. The review was authored by Anita Anand, Professor of Law and Academic Director of the Centre for the Legal Profession at the University of Toronto Faculty of Law, and William Muir, a former Editor-in-Chief of the University of Toronto Faculty of Law Review who was a research assistant for Professor Anand.

Professor Bruner’s book, published in 2013 by Cambridge University Press, examines the corporate governance powers possessed by shareholders in the U.S. and other common-law countries. Bruner finds, contrary to popular belief, that shareholders in the U.K. and other common-law jurisdictions are both more powerful and more central to the aims of the corporation than are shareholders in the U.S. Bruner’s theory is that relatively robust social welfare protections in countries like the U.K., Australia and Canada have freed up their corporate legal systems to focus more intently on shareholder interests without giving rise to “political backlash” – because other legal structures accommodate the interests of employees.

In their review, Anand and Muir conclude that Bruner’s book “offers a unique and welcomed approach to the study of comparative corporate governance,” elaborating that:

Christopher Bruner is to be commended for his thorough survey of corporate governance theories and the wealth of historical information about the sociopolitical circumstances surrounding the formation of each of the four common-law countries’ governance regimes. Bruner’s explanation and historical analysis of the pivotal position of labor is an original lens through which to examine corporate governance in common-law countries….  Without doubt, Corporate Governance in the Common-Law World is a highly commendable work and provides an excellent counterpart for further empirical investigation.

The complete review is available here.  Read more about Professor Bruner’s scholarship here.

Professor Seaman presents at Northwestern University School of Law

August 10, 2015 Leave a comment
Prof. Christopher Seaman

Prof. Christopher Seaman

On August 4, 2015 Washington and Lee law professor Christopher Seaman presented his work on empirical studies on the presumption of validity in patent law at Northwestern University School of Law.  The school hosted the conference which precedes the publication of the Research Handbook on the Economics of Intellectual Property Law.  Professor Seaman is writing a chapter in the volume to be published next year by Edward Elgar Publishing.

Conference website:  http://www.law.northwestern.edu/research-faculty/conferences/ip-handbook/

 

Categories: Uncategorized

Professor Sahani Presents Works-in-Progress at Vanderbilt Law School and Seattle University School of Law

July 22, 2015 Leave a comment
Prof. Victoria Shannon

Prof. Victoria Shannon

On July 9-12, Professor Sahani presented her latest work-in-progress, Reshaping Third-Party Funding, at the Ninth Annual Lutie Lytle Black Women Law Faculty Writing Workshop hosted by Vanderbilt Law School.  This article challenges the traditional triangular representation of the third-party funding transaction between the funder, client, and attorney and proposes other transaction structures that would be better suited to addressing potential problems, such as conflicts of interest, evidentiary privileges, and the funder’s exercise of control over the case. 

 

On July 15-18, Professor Sahani presented her forthcoming article, Judging Third-Party Funding, at the First Annual Civil Procedure Workshop, hosted by Seattle University School of Law.  This article proposes revisions to and reinterpretations of the Federal Rules of Civil Procedure, evidentiary privileges, and international arbitration procedures to address issues relating to third-party funding such as disclosures, evidentiary privileges, conflicts of interest, cost allocation, sanctions, and class actions.  The full text of the current draft is available here.  The article will be published in the UCLA Law Review in early 2016.

Professor Victoria Shannon Sahani Publishes Blog Post at Kluwer Arbitration Blog

July 13, 2015 Leave a comment
Prof. Victoria Shannon

Prof. Victoria Shannon

Washington and Lee Law professor Victoria Shannon Sahani recently contributed to the Kluwer Arbitration Blog published by Wolters Kluwer Law & Business.  Professor Sahani’s blog post, titled The Impact of Third-Party Funders on the Parties They Decline to Finance was published on July 6, 2015.

Professor Bruner’s Book Reviewed in the Cambridge Law Journal

July 7, 2015 Leave a comment
Prof. Christopher Bruner

Prof. Christopher Bruner

A review of Washington and Lee law professor Christopher Bruner’s book, Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power, has been published by the Cambridge Law Journal. The review was authored by Dr. Marc Moore, Reader in Corporate Law at the University of Cambridge Faculty of Law.

Professor Bruner’s book, published in 2013 by Cambridge University Press, examines the corporate governance powers possessed by shareholders in the U.S. and other common-law countries. Bruner finds, contrary to popular belief, that shareholders in the U.K. and other common-law jurisdictions are both more powerful and more central to the aims of the corporation than are shareholders in the U.S. Bruner’s theory is that relatively robust social welfare protections in countries like the U.K., Australia and Canada have freed up their corporate legal systems to focus more intently on shareholder interests without giving rise to “political backlash” – because other legal structures accommodate the interests of employees.

In his review, Dr. Moore concludes that Bruner’s “outstanding work represents a highly innovative and influential contribution” to the growing body of socio-political literature on corporate law.  Moore elaborates:

[T]his book is a work of monumental significance and scholarly craft. It is impeccably researched, beautifully written, and its claims are both forceful and highly persuasive. It is an absolute must for anyone seeking to form a holistic understanding of how corporate law and governance relate to their broader social-institutional context, as well as an excellent primer on the key comparative features of the world’s principal common law systems. In writing this pioneering work, Bruner has undoubtedly earned the right to sit at the very top table of international corporate law scholarship. One can only hope that future research in the field will advance this fascinating line of enquiry yet further.

The complete review is available here.  Read more about Professor Bruner’s scholarship here.

Professor Christopher Seaman’s New Work Published in the Texas Intellectual Property Law Journal and featured in SSRN Top 10 Lists

July 2, 2015 Leave a comment
Prof. Christopher Seaman

Prof. Christopher Seaman

Washington and Lee law professor Christopher Seaman’s article, Ongoing Royalties in Patent Cases After eBay: An Empirical Assessment and Proposed Framework recently appeared in the symposium issue of volume 23 of the Texas Intellectual Property Law Journal.  The Professor Seaman’s article is also featured on SSRN top ten lists in four different subject areas: Intellectual Property, Intellectual Property: Empirical StudiesInnovation & Patent Law & Policy, and Innovation Policy Studies.

From the abstract:

The Supreme Court’s landmark decision in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 288 (2006), significantly changed the remedial landscape for patent owners, holding that a permanent injunction would not automatically follow a finding that an asserted patent was infringed and not invalid. As a result, a substantial number of prevailing patentees have been denied the ability to exclude future acts of infringement. eBay’s impact is perhaps most acute for patent assertion entities (“PAEs”) — firms that own, license, and assert patents in litigation, but do not themselves directly practice the patented technology — who rarely can satisfy eBay’s four-factor test.

In eBay’s wake, the Federal Circuit has approved an alternative prospective remedy called an ongoing royalty. But despite lower courts’ increasing use of this remedy, numerous questions about the structure and methodology for determining an ongoing royalty remain unresolved. This Article addresses the issue of ongoing royalty awards from both an empirical and doctrinal perspective. First, it reports the results of an original empirical study regarding ongoing royalty awards by district courts since eBay. Second, it proposes a new framework for computing an ongoing royalty that requires consideration of actual or anticipated changes to the relevant product market, as well as potential future alternatives to the patented technology, in determining the amount of an ongoing royalty award.

Download the full text of Professor Seaman’s article from SSRN here. 

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