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.
On Friday, November 20, Professor Sahani will present her forthcoming article, Judging Third-Party Funding, at a litigation funding conference hosted by the NYU School of Law’s Center on Civil Justice. Professor Sahani’s panel will focus on litigation funding in the context of the Federal Rules of Civil Procedure and will be moderated by Professor Arthur Miller of the NYU School of Law, who is a Faculty Co-Director of the Center on Civil Justice. The conference is free and open to the public, and CLE credit will be offered.
For more information and to register, please visit: http://www.law.nyu.edu/centers/civiljustice/2015-fall-conference.
Professor Sahani’s article will be published in the UCLA Law Review in February 2016.
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 regarding how to determine the relevance of third-party funding, what information to obtain, or from whom to obtain that information. This Article provides 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 Christopher Seaman recently presented his new work, entitled Collaboration and Patentability, at the 4th Annual Mid-Atlantic Patent Law Works-in-Progress (MAPWIP) program. The event was held at American University Washington College of Law on Friday, November 13, 2015.
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 rise 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 several key requirements for patentability, including nonobviousness, enablement, and written description. 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. By doing so, patent law will utilize a more realistic framework for judging patentability, which may raise the bar for some requirements like nonobviousness, but lower them for others like enablement and written description.
In October 2015 Washington and Lee law professor Jim Moliterno spent two weeks in Slovakia working on judicial ethics reform, conducting workshops, meeting with lawyers, and law schools. During this trip Professor Moliterno was interviewed by a Slovak journalist, Zuzana Petková, regarding controversial aspects of the Slovak judiciary and higher education system. In the article that was published last week, the headline reads: “Slovakia is Wasting Some of Its Best and Brightest.”
One of the several themes in the article is Professor Moliterno’s assertion that too many excellent judicial and academic candidates are denied permanent positions in favor of those with family connections to current judges and professors. In his opinion, which is based on his three years of work in Slovakia on legal ethics, the country is losing its best people who could make important contributions to the life of the country and its prosperity in favor of a system that relies on nepotism and favor-trading in the selection process for judicial and academic positions.
On November 3 and 4, 2015 Washington and Lee law professor Jim Moliterno worked in Czech Republic on a project organized by a Czech NGO, Pro Bono Alliance, and financed by The US Embassy-Prague and the Prague international law firm, Kinstellar. The work was designed to increase the possibilities of required lawyer ethics courses at Czech Republic’s main law schools, Charles University in Prague, Masaryk University in Brno and Palacky University in Olomouc. Professor Moliterno met with interested faculty and deans and conducted a demonstration lawyer ethics class for a group of each school’s students with interested faculty and deans observing. He has already been invited back by two of the schools to teach a short ethics course.
In addition to the law school events, Professor Moliterno conducted a session with business lawyers in Prague at the Kinstellar offices. The group of about 25 lawyers engaged thoroughly in his interactive ethics teaching and several proposed that he do such a session for their own firms’ lawyers in house.
Finally, Professor Moliterno was the guest of honor at a reception hosted by the US Ambassador at the Ambassador’s Residence in Prague. The guests were leading lawyers, leading professors and deans, and Constitutional Court judges.
Washington and Lee law professor Christopher Seaman recently presented his new work at a faculty workshop at Elon University School of Law in Greensboro, NC. The faculty workshop was held on Tuesday, October 6, 2015.
Professor Seaman presented his new paper, Permanent Injunctions in Patent Litigation After eBay: An Empirical Study. The paper is forthcoming in the Iowa Law Review.
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.
On Friday, September 18, 2015 Washington and Lee law professor Christopher Seaman spoke to the Virginia State Bar’s Intellectual Property Section on proposed legislation to create a federal civil cause of action for trade secret misappropriation. The presentation built on Professor Seaman’s article, The Case Against Federalizing Trade Secrecy, which was recently published in the April 2015 issue of 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.