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 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 Christopher Seaman has recently co-authored an amicus curiae brief (with Professor Jason Rantanen of the University of Iowa College of Law). The brief was filed at the U.S. Supreme Court on behalf of several intellectual property law professors last week in two cases: No. 14-1513, Halo Electronics, Inc. v. Pulse Electronics, Inc., and No. 14-1520, Stryker Corp. v. Zimmer, Inc. The issue in both cases is the standard for awarding enhanced (increased) damages for patent infringement under 35 U.S.C. § 284.
Professor Seaman has written about this issue in a previously published piece titled, Willful Patent Infringement and Enhanced Damages After In re Seagate: An Empirical Study, 97 Iowa L. Rev. 417 (2012),
Prof. Christopher Seaman Co-Authors Letter to Congress Opposing the Defend Trade Secrets Act of 2015
Washington and Lee law professor Christopher Seaman has co-authored (with Professors Eric Goldman, David Levine, and Sharon Sandeen) a letter to Congress signed by 42 IP law professors opposing the Defend Trade Secrets Act of 2015. The Act would create a new civil cause of action for trade secret misappropriation under federal law. This letter builds on Professor Seaman’s critiques of similar legislation introduced in the previous Congress and published in the Virginia Law Review earlier this year.
Washington and Lee law professor Christopher Seaman presented at the Fourth Annual Patent Colloquium on Friday, November 20, 2015. The colloquium was hosted by the University Toronto, Faculty of Law. Professor Seaman participated on a panel entitled “The Evolving Landscape of Patent Remedies” to discuss permanent injections and ongoing royalty awards in U.S. patent litigation after the Supreme Court’s decision in eBay v. MercExchange (2006). The talk presented empirical research from Professor Seaman’s recent and forthcoming articles in the Texas Intellectual Property Law Journal and the Iowa Law Review.
Professor Seaman’s article in the Texas Intellectual Property Law Journal is titled “Ongoing Royalties in Patent Cases After eBay: An Empirical Assessment and Proposed Framework“. It appeared in volume 23 of the journal in the spring 2015 issue.
“Permanent Injunctions in Patent Litigation After eBay: An Empirical Study” will be published in a forthcoming issue of the Iowa Law Review.