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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 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. 

Professor Seaman Presents at PatCon5

April 21, 2015 Leave a comment
Prof. Christopher Seaman

Prof. Christopher Seaman

Washington and Lee law professor Christopher Seaman presented a current work-in-progress, Property vs. Liability Rules in Patent Litigation Post-eBay: An Empirical Study, at the Fifth Annual Patent Conference (PatCon5) at the University of Kansas School of Law on April 11-12, 2015.  The Patent Conference is the largest annual conference for patent scholars in the world.

From the Abstract:

In this paper, I empirically assess the impact of the Supreme Court’s decision in eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), on grants of permanent injunctions or, in the alternative, ongoing royalty awards, in patent litigation.

Prior to eBay, the Federal Circuit established a “general rule” granting injunctive relief after entry of a final judgment that the asserted patent was valid and infringed. Id. at 391. Overcoming this presumption required a significant showing of public harm that outweighed the patentee’s irreparable harm. In practice, however, this rarely occurred, and district courts routinely granted injunctions after a finding of infringement.

In eBay, the Supreme Court unanimously rejected the Federal Circuit’s “general rule” in favor of injunctive relief, instead holding that trial courts must apply “traditional equitable principles” in the form of a four-factor test. Id. at 391-94. However, in concurring opinions, Chief Justice Roberts and Justice Kennedy offered seemingly divergent assessments regarding eBay’s likely impact in patent litigation. Chief Justice Roberts suggested that trial courts would continue to grant injunctive relief after a finding of infringement in “the vast majority of patent cases,” id. at 395, whereas Justice Kennedy asserted that injunctive relief may be inappropriate in situations that differed from traditional patent litigation, such as suits by non-practicing entities (NPEs) and cases involving business method patents. Id. at 396.

To test these predictions, as well as several other hypotheses about injunctive relief post-eBay, I am empirically studying all district court decisions where the patentee requested a permanent injunction following a finding of infringement (excluding uncontested injunctions) from the date of the eBay decision through the end of 2013. Each case is being coded for a number of variables that may have affected district courts’ decisions regarding whether to grant or deny injunctive relief, including the technological field of the asserted patent(s), whether the parties are competitors in a product market, and whether the accused infringer was found to have willfully infringed the patent. A summary of the results and data analysis from this empirical study will be presented at the conference.

 

 

Professor Seaman Publishes in the Virginia Law Review

April 14, 2015 Leave a comment
Prof. Christopher Seaman

Prof. Christopher Seaman

Washington and Lee law professor Christopher Seaman has just published a new article in the Virginia Law Review.  The article titled “The Case Against Federalizing Trade Secrecy” appears in volume 101 published in April 2015.

Download the full text of the article here.

From the abstract:

Trade secrecy is unique among the major intellectual property (IP) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors — including legislators, academics, and organizations representing IP attorneys and owners — have proposed creating a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime governing IP rights.

This Article engages in the first systematic critique of the claim that federalizing trade secrecy is normatively desirable. Ultimately, it concludes that there are multiple reasons for trade secrecy to remain primarily the province of state law, including preservation of states’ ability to engage in limited experimentation regarding the scope of trade secret protection and federalization’s potential negative impact on the disclosure of patent-eligible inventions. Finally, it proposes an alternative approach — a modest expansion of federal courts’ jurisdiction over state law trade secret claims — that can help address the issue of trade secret theft without requiring outright federalization.

 

Professor Christopher Seaman speaks at Texas Intellectual Property Journal Symposium

February 20, 2015 Leave a comment
Prof. Christopher Seaman

Prof. Christopher Seaman

Washington and Lee law professor Christopher Seaman will speak at the 16th Annual IP Symposium: Patent Assertion Entities hosted by the Texas Intellectual Property Law Journal.   The symposium is held at the University of Texas at Austin on Friday, February 20, 2015.   Professor Seaman will present a new research projected titled  Ongoing Royalties as an Alternative to Injunctive Relief for PAEs After eBay: An Empirical and Theoretical Assessment. 

From the abstract:

Since the Supreme Court’s 2006 decision in eBay v. MercExchange, it has become increasingly difficult for patent assertion entities (PAEs)—firms that own, license, and assert patents in litigation, but do not practice the patented invention themselves—to obtain injunctive relief after a finding of infringement.  Recent studies have shown that evidence of competition in a product market between a patentee and an infringer is the single most important consideration in granting injunctive relief post-eBay, which few if any PAEs can satisfy. 

When a permanent injunction cannot be granted, the Federal Circuit has endorsed an alternative equitable remedy called an ongoing royalty, which is essentially a limited, post-judgment license to the infringer.  However, lower federal courts have not settled on a consistent methodology for determining an appropriate ongoing royalty, including the related issue of whether enhanced damages should be awarded for post-judgment infringement. This Article addresses the issue of ongoing royalty awards from both an empirical and theoretical perspective.  First, it reports the results of an original empirical study regarding ongoing royalty awards by district courts following eBay.  Second, applying insights from this empirical data, it proposes a new framework for computing an ongoing royalty that serves patent’s law objective of incentivizing innovation while also avoiding excessive damages.

 

Prof. Seaman presents at 2015 Works in Progress Intellectual Property Colloquium

February 12, 2015 Leave a comment
Prof. Christopher Seaman

Prof. Christopher Seaman

Washington and Lee law professor Christopher Seaman presented a new research project, entitled Property Rules vs. Liability Rules in Patent Litigation After eBay:  An Empirical Study, at the 2015 Works in Progress in Intellectual Property Colloquium on February 6-7 at the U.S. Patent and Trademark Office in Alexandria, VA.  The conference was jointly hosted by The George Washington University Law School and the United States Patent and Trademark Office.

Professor Seaman’s presentation at the conference was also featured on the blog Written Description.  

From the abstract:

This project empirically assess the impact of the Supreme Court’s decision in eBay, Inc. v. MercExchange, LLC, 547 U.S. 388 (2006), on grants of permanent injunctions in patent litigation.   Prior to eBay, the Federal Circuit established a “general rule” granting injunctive relief after entry of a final judgment that the asserted patent was both valid and infringed.  In eBay, the Supreme Court unanimously rejected the Federal Circuit’s “general rule” in favor of injunctive relief, instead holding that trial courts must apply “traditional equitable principles” in the form of a four-factor test.  However, in concurring opinions, Chief Justice Roberts and Justice Kennedy offered seemingly divergent assessments regarding eBay’s likely impact in patent litigation.  Chief Justice Roberts suggested that trial courts would continue to grant injunctive relief after a finding of infringement in “the vast majority of patent cases,” whereas Justice Kennedy asserted that injunctive relief may be inappropriate in situations that differed from traditional patent litigation, such as suits by non-practicing entities (NPEs) and cases involving business method patents. 

 To test these predictions, as well as several other hypotheses about injunctive relief post-eBay, this project empirically analyzes all district court decisions where the patentee requested a permanent injunction following a finding of infringement (excluding uncontested injunctions) from the date of the Supreme Court’s eBay decision through 2013.  Each case was coded for a number of variables that may have impacted district courts’ decisions regarding whether to grant injunctive relief, including the technological field of the asserted patent(s), whether the litigants are competitors in a product market, and whether the accused infringer was found to have willfully infringed the patent.  The results from this study provide empirical evidence that supports conventional wisdom in some respects, such as finding that NPEs are rarely granted permanent injunctions post-eBay, but that challenges other commonly-held assumptions, such as finding that a history of licensing the asserted patent(s) does not appear to routinely preclude injunctive relief.

Prof. Seaman speaks at AIPLA Trade Secret Summit

December 5, 2014 Leave a comment
Prof. Christopher Seaman

Prof. Christopher Seaman

Washington and Lee law professor Christopher Seaman will speak today, Friday, December 5, 2014 at the American Intellectual Property Law Association’s Trade Secret Law Summit at Intel Corp. in Santa Clara, California.  Professor Seaman will participate in a panel entitled “Should Trade Secrets Law be Federalized? A Debate on the Need for a Federal Civil Remedy and Its Interplay with the Uniform Trade Secrets Act.”

Professor Seaman’s paper, “The Case Against Federalizing Trade Secrecy” is forthcoming in the Virginia Law Review. 

From the Abstract:

Trade secrecy is unique among the major intellectual property (IP) doctrines because it is governed primarily by state law. Recently, however, a number of influential actors — including legislators, academics, and organizations representing IP attorneys and owners — have proposed creating a private civil cause of action for trade secret misappropriation under federal law. Proponents assert that federalizing trade secrecy would provide numerous benefits, including substantive uniformity, the availability of a federal forum for misappropriation litigation, and the creation of a unified national regime governing IP rights.

This Article engages in the first systematic critique of the claim that federalizing trade secrecy is normatively desirable. Ultimately, it concludes that there are multiple reasons for trade secrecy to remain primarily the province of state law, including preservation of states’ ability to engage in limited experimentation regarding the scope of trade secret protection and federalization’s potential negative impact on the disclosure of patent-eligible inventions. Finally, it proposes an alternative approach — a modest expansion of federal courts’ jurisdiction over state law trade secret claims — that can help address the issue of trade secret theft without requiring outright federalization.

 

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