Washington and Lee law professor Christopher Seaman and co-author Ryan Holte of Southern Illinois University School of Law have been selected as winners in the Young Legal Scholars Paper Competition hosted by the Federalist Society for Law and Public Policy Studies.
Professor Seaman’s winning paper is titled “Patent Injunctions on Appeal: An Empirical Study of the Federal Circuit’s Application of eBay.” The paper will be featured as part of the Young Legal Scholars Paper Presentations Panel at the Federalist Society’s Annual Faculty Conference in San Francisco, CA on January 5, 2017.
The paper is currently available to download from SSRN.
From the abstract:
Ten years after the U.S. Supreme Court’s 2006 seminal decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the U.S. Court of Appeals for the Federal Circuit sharply divided regarding whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit.
This article represents the first comprehensive empirical study of permanent injunction decisions by the Federal Circuit following eBay. Through an original dataset of appeals in nearly 200 patent cases — representing all cases involving contested permanent injunction decisions for a 7½ year period after eBay — we assess the impact of the Federal Circuit on the availability of permanent injunctions. The findings from this study indicate that the Federal Circuit is generally more favorable to prevailing patentees regarding permanent injunctive relief than the district courts following eBay. District courts that grant an injunction after a finding of liability are highly likely to be affirmed on appeal, whereas district courts that deny an injunction have a statistically significant lower affirmance rate. This suggests the Federal Circuit is generally inclined toward a property rule rather than a liability rule as a remedy against future patent infringement. It also appears to lend support to claims by scholars and others that the Federal Circuit, as a specialized court with a large number of patent cases, is more pro-patentee than the generalist district courts. Finally, some implications of this and other empirical findings from the study are considered.
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.