Infringement Suit Research Articles

A Brave New World: Maneuvering the Post-Digital Art Market

The digital revolution has launched myriad new technologies in the field of art and cultural heritage law, including digital art, NFTs (non-fungible tokens), artificial intelligence (AI)-generated art, virtual reality and reality augmentation, online viewing rooms and auctions, holograms, immersive experiences, and more. As a $67.8 billion industry, the art market is a global driver of innovation, international collaboration, and national economies, given its cross-border transactions. However, given the extremely rapid development of these new technologies, regulators have struggled to keep pace and implement legal measures that are fit for purpose in this field. Limited oversight has resulted in several claims that have the potential to change the legal landscape. For instance, claims over the theft/misappropriation of NFTs and the related fraud and money laundering that may ensue, as well as a recent class action copyright infringement suit against the creators of a popular AI algorithm and infringement claims over immersive installation and light technologies, demonstrate how new ways of thinking are required to assess cases involving digital property (distinguished from other types of non-tangible property). Moreover, the US Supreme Court has issued a landmark ruling on fair use within the copyright context, which will be relied upon in the future to determine whether (and to what extent) the appropriation of existing copyrighted material is permitted. This includes both the digital use of physical artworks and the use of born-digital works. Although jurisprudential decisions are made on a case-by-case basis, factual patterns involving online media, digital art, and related technologies could serve as guidance for legislators and other decision-makers when considering what limits should be imposed on Web 3.0. This article will focus on recent US-based claims and regulations and dovetail with existing art market regulations in this jurisdiction (e.g., anti-money-laundering statutes) to determine their impact on new technologies, whether directly or indirectly. Finally, the article highlights ongoing trends and preoccupations to provide an overview of the shifting legal landscape.

Alternate Dispute Resolution and Copyright Litigation

With the internet’s growing influence, numerous pirated copies of copyrighted works exist on different platforms. It is not possible to always approach the Courts because the person infringing the copyright might be a citizen in a country other than where the copyright owner resides. As a result, the person who infringed the copyright is out of the court’s reach. Here comes in handy the ADR mechanism established in almost every nation. This paper primarily deals with the suitability of the ADR mechanism being more than usual litigation for violation of copyright and licensing agreements.The article first deals with the potential copyright disputes that might arise due to the overarching boundaries of the internet. Thereafter, the paper centers its focus on the problems that the parties to an infringement suit might face if courts are approached for copyright infringement such as lack of jurisdiction, expensive, time-consuming, and so on. As the article proceeds further, it delves into how the ADR mechanism has improved the resolution of copyright disputes. The ADR mechanism does not need to abide by all the domestic laws of one country. In cases where parties belong to different jurisdictions, the parties are free to choose any seat of arbitration and the applicable arbitration rules. It is ultimately the law of the seat of arbitration that governs the arbitration process. Moreover, the approach of the ADR mechanism is always to arrive at a win-win solution i.e., a solution where neither of the parties is at disadvantage. The ADR mechanism works solely with the intention to resolve disputes by arriving at a settlement where both parties are satisfied and neither of them becomes the loser. The article also deals with the difference in approach of arbitration, mediation, conciliation, and other ADR methods while resolving a dispute.

USE OF LOK ADALAT FOR RESOLUTION OF COPYRIGHT INFRINGEMENT IN EDUCATION SECTOR

Copyright protection aims to protect rights of owners and authors or creators which they have in the work done. Copyright registration is not mandatory and so, whenever any person does a literary, artistic etc work, the copyright is automatically created in originally authored work. If copyright in a work is registered and someone uses or exploits it without consent of owner of the copyright, infringement of copyright takes place. Today in education sector proactive efforts of teachers, educational institutions and student-parents etc, huge amount of original work is being created and we need more protection for our copyrights. Ordinary suit (litigation process) for copyright infringement in Indian courts takes a lot of time, money in the form of court fee, lawyers’ fees etc and it generally results in permanently damaged relation between the disputing parties. Lok Adalat is the unique system in India to resolve disputes by the mutual understanding or settlement between the disputing parties which is backed by the decree of the court. In India, the use of Lok Adalat for resolution of infringement disputes related to copyright is a question as there are many contradictory judgments from judiciary and lack of clarity in laws. This research paper with the use of doctrinal method, focuses on clarity regarding the concepts of Lok Adalat, Copyright infringement in education sector, what can be done in education sector for avoiding copyright infringement and whether we can use Lok Adalat to resolve these disputes.

기업의 특허출원 목적에 관한 연구 : 중국기업을 대상으로

본 연구는 기업의 특허출원 목적을 파악하는데 있다. 이에 선행연구 고찰을 통해 특허출원 목적을 파악하고, 전문가 델파이를 통해 10개 요인을 선정하고 이를 중국기업의 특허담당 실무자들을 대상으로 설문조사를 실시하였다. 분석결과, Improve the technological image of your company, For use in negotiation: cross licensing, joint venture, Improve the situation in R&D cooperations, Enhance Reputation, Measure performance, Aacquire venture capital, Prevent patent infringement suits, Licensing Revenue, Blocking or prevent competitors' patenting and application activities, Prevent copying or protect own technology from imitation 순으로 중요한 것으로 나타났다. 본 연구결과는 기업에서 특허를 출원할 때 우선적으로 고려해햐 할 요인이 무엇인지 파악하고 적용하는데 있어 실무적 가이 드라인으로 활용가능할 것으로 기대한다.

Psychological impact of olfactory branding: The future of smell marks in India

AbstractScents have been used by business organizations for commercializing their products since historic times. Because of the psychological connect that a consumer immediately makes as he smells something unique, olfactory branding is considered as a very productive and effective marketing tool. Trademark law attempts to protect a brand's identity with the ultimate motive of preventing consumers from deceptively similar goods. Scholars and businesses have been raising their voice in a demand call for smell mark protection under trademark law, arguing that smell is just as important for identifying the origin‐point of a product for a consumer as is the brand's logo or name or product shape. While the US courts have been liberal in granting smell mark registrations, EU courts have interpreted the “graphical representation” requirement under trademark law very strictly. Indian law, though not entirely closed on the prospect of smell mark protection, is inclined toward the EU position. After analyzing the current legal scenario, this article explores the more fundamental question as to the feasibility of smell marks, questioning their justification under the philosophical foundations of trademark law, the subjective associations of consumers with respect to smells, the difficulty in evidence analysis by courts in infringement suits and the apprehension relating to the functionality doctrine.

Moo-re Gene-edited Animals Get Regulatory Clearance: U.S. FDA Approves Genetically Engineered Cattle for Human Consumption

Moo-re Gene-edited Animals Get Regulatory Clearance: U.S. FDA Approves Genetically Engineered Cattle for Human Consumption

The problem with APC and open access: Hurdles in publishing practice

Publish or perish has been the mantra for researchers and scientists. It is an aphorism describing the sheer pressure to publish academic work in order to succeed in an academic career. After all what good one has done if they didn’t even publish an article in a good journal. A good journal is the one with the highest impact factor. The Impact Factor is calculated by dividing the number of citations in the JCR year by the total number of articles published in the two previous years. An Impact Factor of 1.0 means that, on average, the articles published 1 or 2 years ago have been cited one time. While the impact factor metric is very unreliable to judge the quality of the journal or published paper, as numerous unfair and dubious means were frequently adopted to boost the journal impactfactors. But still, the race is on with the psychology to publish in higher impact journals as it is often associated with greater academic rewards. What emerged out of this race is that journals and the publishing houses ramped the article processing charges (APC) to an astronomical level, which was unprecedented before. APC for a few BMC, MDPI, SAGE DOVE press journals on an average exceed 2000 USD, equivalent to few months salary of the Principle Investigtor. Journal publishing house often justifies high APC citing reasons for “open access” such that they are freely available for a wider range of readers free of cost or to meet their operational cost. Although apparently sound like a great initiative, a little more investigation reveals an underlying agenda, which is far from true when we find that a majority of this same. Publishing house ferociously opposes Sci-hub like 3d party platforms which genuinely gives free access to all readers worldwide. Recently, three major academic publishers Elsevier, Wiley, and American Chemical Society filed a copyright infringement suit in the Delhi High Court, India against “Sci-Hub” and “Libgen” which provide free access to millions of research papers/books. This clearly indicates that their intentions are misaligned with what they say. High APC is a means to just earn larger profit margins. Publishing house does mention a fee waiver for low-income countries but is exploited and abused instead of this as a helping gesture. Scientific research can hardly proceed in solo. It needs infrastructure, trained manpower, logistic support, and high-level coordination. Providing fee waivers for publication to countries that hardly can feed its starving populations makes little sense because either way, these countries are far behind to have material to publish or to engage in any credible research. Instead what is happening is what is called “author swapping” wherein the corresponding or co-corresponding authors are cherry-picked from these improvised nations for APC waiver without them anyway participating in the scientific study. This is surely unethical. Journals are also reported extorting authors who fail to pay the APC. There are other flip sides of APC. High APC skew only those rich and affluent labs/groups who may be able to afford them, something getting away even with mediocre articles while genuine data from less affluent labs may never be able to reach these journals. This trend is growing alarmingly high, filtering out publications only from wealthy labs. Though the scientific community is well aware of this, very little is actually done to prevent this as the nexus runs deep benefiting few who can afford it. Unless this chain is broken, future science may just be determined by those who can afford the high APC to get into the highest impact journals, and not by the quality of science.

Enforcing Telecoms SEPs as Abuse of Dominant Position

Telecommunications industry uses extensive standardisation to ensure interoperability between the devices of competing manufacturers. SEPs, or patents incorporated in related technical standards, are of extraordinary importance in the industry. Hence seeking legal remedies for SEP infringements may compromise effective competition in the internal market and may thus fall within the scope of Article 102 TFEU on abuse of dominant position. In this paper I review, on which conditions the SEP holder is allowed to seek legal remedies for SEP infringement without being restrained by Article 102 TFEU. I conclude that a dominant position is established nearly always through mere SEP ownership, and this dominant position is abused by bringing an SEP infringement suit if the sought remedy has a direct effect on the market access of the SEP implementer and the SEP holder does not have an objective justification to seek such remedies.

Pleading standards for patent-related declaratory judgment in the USA

In the USA, a claim for declaratory judgment can be used to establish that a patent is invalid or that there is no infringement. It can be brought by a potential infringer as an initial claim before they face a patent infringement lawsuit. Alternatively, it can be raised as a counterclaim after a patent infringement lawsuit has commenced. Filing a declaratory judgment action can be an attractive option for a variety of reasons, the most common of which is a party expecting to face a patent infringement suit using declaratory judgment to beat the patentee to venue selection by filing first. This choice of venue can have a great impact on strategic considerations by both parties. For example, declaratory judgment plaintiffs should be aware of pleading pitfalls that vary widely based on jurisdiction. On the other hand, a party facing a declaratory judgment claim should also be aware of such...

Delhi High Court unbalances the seesaw of ‘fair play’ and ‘trade secret protection’: an analysis of Interdigital ‘v’. Xiaomi

The year 2020 witnessed a tussle between an Indian and a Chinese court owing to the fair, reasonable and non-discriminatory (FRAND) licensing litigation between InterDigital (a company headquartered in the USA) and Xiaomi (a company headquartered in China). On 3 June 2020, Xiaomi initiated a suit at the Wuhan Intermediate People’s Court (Wuhan Court) seeking to determine royalty rates for numerous 3G and 4G standard essential patents (SEPs) owned by InterDigital in accordance with FRAND.1 Subsequently, InterDigital filed an infringement suit at the Delhi High Court (DHC) in respect of five of its Indian SEPs2 and three HEVC (High Efficiency Video Coding) video compression standards3 against Xiaomi.4 The Wuhan Court, by its order dated 23 September 2020, issued an anti-suit injunction (ASI) against InterDigital and proscribed them to seek an injunction against Xiaomi in the DHC. The Wuhan Court denied reconsidering its order. ASIs have been common in SEP proceedings as they reduce the expenses and avoid conflicting decisions in parallel jurisdictions.5

Do Patents Alleged to be “Overly-broad” and of “Dubious Validity” Retard Innovation?

A current refrain in patent policy discourse is that “overly-broad” patents of “dubious validity” retard innovation. We briefly review expressions of the thesis to show that they reduce to the allegation that disagreements over enforceable patent scope and/or validity harm innovation. The Selden automobile patent is alleged to have been such a patent. We review the evidence of commercial development during the Selden patent term and show that although there was disagreement as to the scope and validity of Selden’s patent claims, there is no evidence that innovation was retarded. We show that Henry Ford and others relied on “freedom to operate” analyses of the Selden patent claims that unambiguously demonstrated their narrow scope. We reexamine archival evidence and cite new primary sources, in particular the legal Opinion given to Ford on the Selden patent to provide a more accurate account than hitherto published of how Ford made his analysis. It was this analysis embodied in the legal Opinion that gave the Ford Motor Company the confidence to publicly indemnify all its customers from infringement liability. Suit for infringement of the Selden patent was brought against the Company, and Ford ultimately prevailed. The Selden patent was licensed, not to create a patent pool, cross-licensing agreement or cartel, but a “patent enforcement collective”; the Selden case should be known as the exemplary instance of how freedom-to-operate analysis can provide the confidence to invest and develop business.

Gallo Africa Ltd v Sting Music (Pty) Ltd 2010 (6) SA 329 (SCA) — Revisiting the justiciability of cross-border copyright infringement in South African courts

This contribution examines the basis for and implications of the strictly territorial approach of South African courts in cross-border copyright infringement cases, requiring litigants to bring separate infringement suits in every country where infringement is alleged. This position by the courts loosely hinges on principles of effectiveness, locality and comity, as well as the classification of all intellectual property — copyright in this case — as immovable incorporeal property. In this belated case note, the Roman-Dutch law origins from which this classification is inferred to be derived from the English common law precedent with which it is paralleled and private international law principles applicable are briefly interrogated in light of prevailing constitutional prescripts. This complete bar on the authority of local courts on what is a ubiquitous concern for rights holders is a matter with far-reaching consequences.

Immunex Corp. v. Sandoz Inc. United States Court of Appeals of the Federal Circuit, 2020 964 F.3d 1049

Immunex Corp. v. Sandoz Inc. United States Court of Appeals of the Federal Circuit, 2020 964 F.3d 1049

Argentum Pharm. LLC v. Novartis Pharm. Corp. United States Court of Appeals of the Federal Circuit, 2020 956 F.3d 1374

Argentum Pharm. LLC v. Novartis Pharm. Corp. United States Court of Appeals of the Federal Circuit, 2020 956 F.3d 1374

Patents, Litigation Strategy and Antitrust in Innovative Industries

In a patent infringement suit, the alleged infringer wins with a ruling of either invalidity or non-infringement, and may strictly prefer either outcome. Invalidity may increase current-period competition, but removes constraints to future innovation. We adapt the Segal and Whinston (Am Econ Rev 97(5):1703–1730, 2007) model, and show that a legal regime that considers infringement before validity maximizes the entrant patentee’s innovation incentives. But the incumbent alleged infringer may prefer litigating validity first if the future blocking effect of validity is strong. This litigation strategy effect may reduce innovation levels. Antitrust policy should seek to attenuate this effect by reducing the advantage to incumbency.

Music Copyright Infringement Online Archive

Music copyright infringement suits often involve little-known musicians seeking compensation from financially successful songwriters and performers, for alleged misappropriation of the intellectual content of musical numbers that were never published, or that enjoyed limited circulation. Judicial opinions typically turn on the court's musical analyses of the works in dispute, but these analyses are not meaningful to the reader of the opinions without audio and visual representation of the musical numbers under scrutiny. These numbers are not, of course, presented along with the court's opinion, and complaining works in particular are generally accessible only from the court's case docket or from the files of the attorneys involved. Unless, then, one somehow already knows the disputed works, one cannot read critically the court's published opinion. To do so, one needs to see the score of the musical work, and/or see and hear a recorded performance of it -- the latter increasingly important as audio engineering and performance style become ever more vital to the commercial success of popular numbers. This can be surprisingly difficult; while everyone has heard of Andrew Lloyd-Webber and can obtain the sheet music and recording of Phantom, who has heard of Ray Repp, and his Till You, that he claims Webber's work plagiarized? Even commercially successful works of popular music have fleeting appeal and brief shelf lives; within a decade or so of publication, the recording and sheet music of once-popular numbers can often be found only in specialized archives, or occasionally, tattered and shopworn, in the collections of municipal libraries.To improve access to this information -- access particularly helpful to legal scholars writing from a historical perspective on music copyright issues -- Columbia Law School's on-line archive will present audio and graphic representations of musical works that are, or have been, the subject of adjudicated music plagiarism cases. Text files summarize and comment upon the opinions in light of the musical works in each case, and contain the full text of the court's opinion. Image files provide representations of pertinent segments of the musical works in question through standard music notation; sound files include both MIDI (Musical Instrument Digital Interface) files with non-stylized renditions of the purely musical content of relevant portions of the disputed numbers, and also streaming audio clips (and video clips when relevant) taken from analog and digital recordings of performances that were intended for public delectation.We believe that this on-line archive will be useful to copyright academics, attorneys practicing in this area, and to musicians seeking insight into an entertaining albeit Cabalistic topic. The project's Discussion and Questions module suggests new means of accessing and analyzing information that pertains to an area of law that now begs inquiry into the issue of how changes in the creation, content, dissemination and consumption of popular music in America in the 20th Century -- which have not, for the most part, been acknowledged by the copyright bar -- should inform music copyright infringement judges and litigants, who tend to approach their work with the paradigms developed for disputes involving Tin Pan Alley numbers in the early decades of this century.

Death by Crosspollination: The Uncontrollable Natural Occurrence That Could Kill Organic Farming and the Legal Solutions to Save an Industry

American farmers are under attack by uncontrollable technology. Patented genetically modified organisms (GMOs) are unwantedly contaminating organic crops in a process recognized by many, including the United States Supreme Court and GMO patent holding companies such as Monsanto. The process is called crosspollination. Crosspollination is a natural event where pollen produced by one plant is carried by the wind or bees to another plant. Typically, crosspollination is beneficial because it helps nourish the plants. However, the process is nearly uncontrollable in nature. Crosspollination can lead to catastrophic ends for owners of small, organic farms in the era of patented GMOs. This paper offers proposed legislative changes aimed at alleviating the problems that organic farmers now face. Suggested legal changes include: 1. Federal legislation modeled after California and Maine’s agriculture codes, which create a requirement of intent for any patent infringement suit against organic farmers; and 2. State legislative action to codify the relationship between Monsanto and its growers as an agency relationship. The goal of the first legal change, instituting an intent requirement to patent infringement, is to ensure that organic farmers unintentionally and unwantedly contaminated by GMOs cannot be sued by Monsanto for patent infringement. Additionally, this will add some security to organic farmers to with neighbors that grow GMO crops. With this legal change organic farmers will know that even if they are contaminated, they do not have to fear Monsanto knocking at their door the next morning. The goal of the second legal solution, is to allow organic farmers a cause of action to recoup and damages they suffer from contamination. It’s well known that certified organic crops are worth much more at market than conventionally grown crops. Therefore, organic farmers that are contaminated have an instant loss of their certification and the market price their products would have brought if they were not contaminated. To combat this, the legal theory of agency would allow farmers to avoid harming their neighboring farmer, but go after the GMO company instead, for the trespass on their crops and for the money the organic farmer lost because of their loss of certification and crop prices.

The Copyright Claims Board and the Individual Creator: Is Real Reform Possible?

Recent copyright reform efforts include legislation in the Congress that would create a copyright claims board to help individual creators and small businesses enforce their copyrights without the expense and complexity of federal court litigation. This article reviews similar tribunals in other countries and examines the proposed board to determine whether it would be effective, both for small claims plaintiffs and in advancing the goals of copyright overall. Test cases involving different types of plaintiffs and defendants are used in order to determine whether the proposed board would in practice level the playing field for individual creators in copyright infringement suits.

Reduction of burden of proof in medical malpractice suit

대상판결은 수술을 받은 후 후유장해가 발생한 환자가 수술 의사를 상대로 손해배상을 청구한 사안에서, 후유장해가 발생했다는 사실만으로 의료상 과실을 인정할 수 없음에도 그에 관한 심리를 제대로 하지 않았거나 증명책임에 관한 법리를 오해함으로써 의사의 과실을 인정하였다는 이유로, 의료과오소송에서의 증명책임 경감과 관련하여 종래의 판례에 따라 의사의 배상책임을 인정한 원심판결을 파기하였다. 대상판결의 결론이 타당한지 여부의 검토를 위한 전제로서 환자 측의 증명책임 경감에 관한 여러 학설과 재판례들을 검토하였다. 이를 통하여 현재 대법원은 사실상 추정론에 근거하여 ‘간접사실에 의해 과실과 인과관계를 동시에 추정’하거나 ‘일반인 상식에 기초한 과실의 증명과 인과관계의 추정’이라는 두 가지 방식을 병용하고 있다는 점을 확인하였다. 대상판결의 판시내용에는 다음과 같은 세 가지 점에서 문제가 있다. 첫째, 93다52402 판결이 설시하는 ‘일반인의 상식’의 불명확성과 그 판결의 무분별한 원용이 문제 된다. 대상판결은 그 판지와 무관한 위 판결의 요지를 원용하는 설시를 함으로써 그 의미 등에 관하여 혼선을 초래하고 있는바, 그 문제의 해결을 위해서는 93다52402 판결이 의료과실이 명백한 일부 사안에서나마 증명책임 감경의 역할을 할 수 있도록 법원이 구체적인 의료행위 준칙을 제시하든가, 증명책임 감경의 방식을 종전과 같이 동시추정으로 일원화하는 결단을 하여야 한다. 둘째, 동시추정 방식에 과도한 한계를 인정하고 있다는 점이다. 환자 측에 과실에 대한 개연성 있는 간접사실의 증명책임을 부여하면서 그 한계로 의사에게 무과실책임을 증명하도록 하여서는 안 된다는 판례의 사안들은 대부분 ‘다른 원인 개입 가능성의 배제 불가’라는 사정과 관련되어 있는바, 그 ‘다른 원인’과 관련하여 법원의 자의적 판단이 개입할 수 있다는 점, 그럼에도 다른 원인의 개입가능성의 배제에 관하여 환자 측에게 증명책임을 부담시키는 것은 무기 대등의 원칙상 부당하다. 셋째, 환자 측에게 의사의 과실 등과 관련하여 너무 높은 증명책임을 부여하고 있다는 점이다. 특히 합병증 등과 관련하여 후유장해가 발생한 영역이 의사가 지배하는 범위 안에 있는 점, 정보나 증거의 측면에서 후유장해가 일반적으로 인정되는 합병증의 범위 내라는 의사의 증명이 환자가 그것이 합병증의 범위를 벗어났다고 증명하는 것보다 훨씬 용이할 것으로 보이는 점 등을 종합하면, 후유장해가 일반적으로 인정되는 합병증의 범위 내라는 사실에 관한 증명책임을 의사에게 부담시키는 것이 옳다. 결론적으로 의료소송에서 환자 측의 주요사실에 대한 증명책임을 환경침해소송 등보다 더욱 낮은 수준으로 경감시켜야 하고, 나아가 과실에 관한 증명책임의 전환이나 인과관계의 추정 등에 관한 입법적 검토도 필요하다고 생각한다.In a case that a patient who suffered from disability after surgery demanded compensation for damage against a medical doctor who performed the surgery, judgement annulled the original decision that the medical doctor should compensate for damage with regard to reduction of burden of proof in medical malpractice proof according to precedents on the ground that original decision acknowledged medical doctor’s malpractice by misunderstanding a principle of law regarding burden of proof without hearing the case properly despite the point that medical malpractice cannot be acknowledged based on only the fact disability occurred. This study examined lots of theories, judgements and precedents regarding reduction of burden of proof on the patient side as a precondition for examination of whether above mentioned judgement is right. This study found that Supreme Court of Korea uses ‘simultaneous presumption of negligence and causal relationship based on indirect fact’ and ‘proof of malpractice based on ordinary people’s common sense and presumption of causal relationship’ jointly. Above mentioned judgement has three problems. Firstly, ‘ordinary people’s common sense’ described by 93 DA 52402 judgement is uncertain and the judgement cited imprudently. The judgement cited the point of verdict which is not related to the gist of decision causing confusion regarding its meaning and therefore it is necessary for the court to present rules on medical practice so that 93 DA 52402 judgement can play a role in reduction of burden of proof in matters which medical malpractice is clear or to make a decision to unify method of reduction of burden of proof as simultaneous presumption as before to solve in order to solve above mentioned problem. Secondly, the judgement acknowledged excessive limit over simultaneous presumption method. Cases of precedents that demand a patient to prove medical doctor’s malpractice and does not ask medical doctor to prove absolute liability are related to circumstances of ‘impossibility of exclusion of likelihood of intervention of other reasons’ and demanding a patient to prove exclusion of likelihood of intervention of other reasons is not reasonable in terms of principle of equality of parties considering the fact that court’s arbitrary judgement can intervene ‘other reasons’. Thirdly, the judgement imposes excessively high burden of proof regarding medical doctor’s malpractice on a patient. It is reasonable to impose burden of proof regarding fact that disability is within the scope of generally accepted complication on medical doctor considering that area which disability occurred regarding complication is within the scope that medical doctor control and it is easier for medical doctor to prove that disability is within the scope of generally accepted complication than to prove that it goes beyonds the scope of complication in terms of information or evidence. In conclusion, it is necessary to reduce burden of proof regarding main facts on patient side in medical suit to lower level than environmental infringement suit and review presumption of causal relationship or convert burden of proof regarding negligence.

How many patents are truly valid? Extent, causes, and remedies for latent patent invalidity

A substantial number of patents tested in court for validity are invalidated. If a similar portion of all patents was deemed invalid in hypothetical validity tests, then this would indicate a seriously flawed patent system due to restrictions unduly imposed by these erroneously granted patents on users and follow-on innovators. Thus, we ask, if a randomly picked patent underwent revocation proceedings, what are the odds of its invalidation? We address this question by analyzing the various selection effects through which patents become subject to validity decisions. Empirically, we focus on Germany, where revocation proceedings are separate from infringement suits and where, in court decisions during the period of 2010–2012, 45% of patents were determined to be fully invalid and 33% to be partially invalid. Based on data gleaned through expert interviews, a survey among lawyers, and an econometric analysis of court judgments, we find the likelihood of (hypothetical) invalidation of a randomly picked patent to be in the same range as that for actually adjudicated patents. As the main cause of patent invalidity we identify incomplete searches for prior art during examination. Our arguments carry over to other legislations. To remedy this situation, we suggest a significant increase of the inventive step required for patent grant combined with a smaller increase of the inventive-step standard in litigation.