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 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 Friday, February 19, 2016, Washington and Lee law professor Christopher Seaman presented a new paper at the 2016 Works-in-Progress Intellectual Property Colloquium at the University of Washington School of Law in Seattle, WA. The paper is titled “Collaboration and Patentability”.
From the abstract:
Collaboration is a hallmark of modern innovation. Patented inventions are now more likely to be the result of large-scale research projects in private industry or academia involving a multidisciplinary team of collaborators, rather than the lone tinkerer in a garage. The growth of collaborative invention is due to several developments, including increased specialization within scientific disciplines, the prohibitive costs of independent research, and the ability for far-flung researchers to collaborate via the Internet.
Although patent law has evolved to facilitate collaborative invention in several important ways, it has lagged in recognizing the shift to team-based innovation in one important respect: the concept of the so-called “person having ordinary skill in the art” (PHOSITA). The PHOSITA plays an important role in determining numerous statutory requirements for patentability, including nonobviousness, enablement, written description, and definiteness. The PHOSITA also is central to determining the scope of a patent’s claims, which greatly influences both infringement and invalidity in patent litigation.
This Article contends that the U.S. Patent and Trademark Office and the federal courts should account for the rise of collaborative invention by judging patentability from the perspective of a collaborative team, rather than a lone PHOSITA, at least in cases when the knowledge of an interdisciplinary team would be required to develop, make and/or use the claimed invention. By doing so, patent law will utilize a more realistic framework for judging patentability. Evaluating patentability through the lens of an ordinarily skilled team may raise the bar for some requirements like nonobviousness, but lower them for others like enablement and written description.
Washington and Lee Law professor Victoria Sahani has published a new article in the UCLA Law Review. The article, titled Judging Third-Party Funding, appears in Volume 63 of the journal.
From the abstract:
Third-party funding is an arrangement whereby an outside entity finances the legal representation of a party involved in litigation or arbitration. The outside entity—called a “third-party funder”—could be a bank, hedge fund, insurance company, or some other entity or individual that finances the party’s legal representation in return for a profit. Third-party funding is a controversial, dynamic, and evolving phenomenon. The practice has attracted national headlines and the attention of the Advisory Committee on the Federal Rules of Civil Procedure (Advisory Committee). The Advisory Committee stated in a recent report that “judges currently have the power to obtain information about third-party funding when it is relevant in a particular case,” but the Committee did not provide any additional guidance on how to determine the relevance of third- party funding. What information should be obtained, and from whom? This Article offers that needed guidance by setting forth revisions and reinterpretations of procedural rules to provide judges and arbitrators with disclosure requirements and a framework for handling known issues as they arise. By revising and interpreting the procedural rules as suggested in this Article, judges and arbitrators will be able to gain a better sense of the prevalence, structures, and impact of third-party funding and its effects (if any) on dispute resolution procedures. Over time, these observations will reveal the true systemic impact of third-party funding and contribute to developing more robust third-party funding procedural regulations.
Washington and Lee law professor Brian Murchison has published a new article in the latest issue of the Columbia Journal of Law & the Arts. Professor Murchison’s article is titled “Speech and the Truth-Seeking Value” and appears the first issue of volume 39.
From the abstract:
Courts in First Amendment cases long have invoked the truth-seeking value of speech, but they rarely probe its meaning or significance, and some ignore it altogether. As new cases implicate questions of truth and falsity, thorough assessment of the value is needed. This Article fills the gap by making three claims. First, interest in truth-seeking has resurfaced in journalism, politics, philosophy, and fiction, converging on a concept of provisional or “functional” truth. Second, the appeal of functional truth for the law may be that it clarifies thinking about a range of human priorities—survival, progress, and character—without insisting on truth in an absolute or transcendent sense. Third, the law’s current treatment of truth-seeking in First Amendment cases turns on whether a case implicates the truth of the past, present, or future. Cases about past truth involve its knowability; cases about present truth involve its hiddenness; and cases about future truth involve its falsification. Because judicial treatment of truth-seeking in each of these groupings is underdeveloped, legal thought can benefit from literary works by three major novelists: Paul Scott, author of Staying On; Kazuo Ishiguro, author of Never Let Me Go; and Ian McEwan, author of Atonement. Each of these works clarifies an important aspect of the truth-seeking value of expressive freedoms. The Article concludes by considering the value’s limitations, focusing on the complex setting of campaign finance.