Patent Cases Research Articles

Nullification of European Patent: The Case of European Patent on Teff Flour Processing

Various scientific studies and researches conclude that Ethiopia is a center of origin and diversity of <i>Eragrostis Teff</i>. Teff is a gluten free crop that has been originated and cultivated for centuries in Ethiopia. Due to its gluten free nature, most European and American consumers are fond this crop. This perhaps captures the interest of developed countries market which will contribute to the development and modernization of Ethiopia’s agriculture on which the country’s economy is massively dependent on. Conversely, as a result of the patent protection granted on Teff flour processing and the resultant gluten free Teff flour product made up of Teff and other gluten free and gluten containing crops in Europe, Ethiopia could not access European gluten free market. European patent on Teff flour processing granted by European Patent Organization (EPO) is still active and validated in some member countries to the European Patent Convention (EPC). Therefore, this research article will assess and evaluate the patentability requirements enshrined under EPC with the protection sought for Teff flour processing patent (Teff patent) granted by EPO. Further, domestic court decisions regarding Teff patent (decision of Hague court that hears the litigation between Ancientgrain BV vs. Bakels Senior NV) will also be analyzed to the extent relevant to this research article. At last, this article explores and discusses the domestic jurisdictions and laws that are necessary and instrumental for the invalidation/nullification of Teff patent.

How can Innovation Screening be Improved? A Machine Learning Analysis with Economic Consequences for Firm Performance

Using USPTO patent application data, I apply a machine-learning algorithm to analyze how the current patent examination process in the U.S. can be improved in terms of granting higher quality patents. I make use of the quasi-random assignment of patent applications to examiners to show that screening decisions aided by a machine learning algorithm lead to a 15.5% gain in patent generality and a 35.6% gain in patent citations. To analyze the economic consequences of current patent screening on both public and private firms, I construct an ex-ante measure of past false acceptance rate for each examiner by exploiting the disagreement in patent screening decisions between the algorithm and current patent examiner. I first show that patents granted by examiners with higher false acceptance rates have lower announcement returns around patent grant news. Moreover, these patents are more likely to expire early. Next, I find that public firms whose patents are granted by such examiners are more likely to get sued in patent litigation cases. Consequently, these firms cut R&D investments and have worse operating performance. Lastly, I find that private firms whose patents are granted by such examiners are less likely to exit successfully by an IPO or an M&A. Overall, this study suggests that the social and economic cost of an inefficient patent screening system is large and can be mitigated with the help of a machine learning algorithm.

&lt;i&gt;American Axle v. Neapco Holdings&lt;/i&gt;: Brief of Professors Jeffrey A. Lefstin And Peter S. Menell As Amici Curiae in Support of Petition for a Writ of Certiorari

Notwithstanding the clarity of the U.S. Constitution’s grant of authority to Congress “[t]o promote the Progress of . . . useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to their . . . Discoveries,” U.S. Const. Art. I, § 8, cl. 8, and Congress’s directive that “[w]hoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title,” 35 U.S.C. § 101 (emphasis added), current § 101 jurisprudence conflates patent eligibility with the substantive requirements set forth in § 103 and § 112 and is getting more confusing by the day. There is no patent law doctrine more in need of clarification. The Federal Circuit’s 6-6 split resulting in the denial of rehearing en banc in American Axle & Manufacturing, Inc. v. Neapco Holdings LLC et al., 966 F.3d 1347 (Fed. Cir. 2020), is just the latest example in a long series of cries for help in interpreting § 101. See, e.g., Berkheimer v. HP Inc., 890 F.3d 1374, 1374 (Fed. Cir. 2018) (Lourie, J., with Newman, J. concurring in denial of rehearing en banc) (expressing that patent eligibility law “needs clarification by higher authority, perhaps by Congress, to work its way out of what so many in the innovation field consider are § 101 problems”). We add our voice to the chorus calling for the Supreme Court and/or Congress to clarify and/or reform patent eligibility jurisprudence. In setting forth a new test of patent eligibility, the panel decision mischaracterized fundamental patent principles and case law on which the modern patent system is built. The claims of the patent in suit present a conventional problem of compliance with the statutory patentability requirements of § 112, which sets forth the requirements of disclosure and claim definiteness. The panel opinion instead forces this case into the § 101 mold, which dispenses with the customary factual predicates for § 112. In so doing, the panel radically altered and expanded the already confused contours of § 101 jurisprudence. Moreover, the panel’s holdings were based on a serious misinterpretation of patent law’s foundational cases, and run counter to this Court’s long insistence that the statutory requirements of § 112 and its predecessor statutes provide the standards to assess whether claims are functional or overbroad. With this latest expansion, the atextual doctrine of patent eligibility threatens to supplant the traditional tests of patentability established by the 1952 Act. The Federal Circuit’s deep split in American Axle presents an excellent vehicle for clarifying the interplay of § 101 and § 112 of the Patent Act.

The Patent Medium: Toward a Network Paradigm of the Patent System

The modern patent system is conceived of as an information platform. The notion of patents as facilitating dissemination of information is evident in the common description of the patent system as a quid-pro-quo bargain: Society grants exclusive rights in exchange for information published by a patentee. But is there more to the patent system than merely informing others? Does the patent system also serve as a communication (and not only information) platform, namely, as a medium? Based on analysis of the patent system’s structure and features through the lenses of communication studies, this Article suggests that it does. The patent medium is characterized by specific features, enabling players to use the patent system for various ends, much beyond the trivial goal of incentivizing innovation or disseminating legal and technological knowledge. The Article strives to characterize the patent medium, as well as to examine the implications of portraying the patent space as a medium. By closely observing the patent system, the Article reveals an existing, somewhat implicit communication paradigm of the patent system as a medium. Although tacit and unofficial, this paradigm is evident through a critical reading of patent scholarship and case law. The extant, unspoken communication paradigm resembles that of a bulletin board: it is a linear, straightforward, and public channel, focusing on the informative value of communication. However, this bulletin-board paradigm does not reflect the actual nature of the communication that transpires within the patent medium. After rethinking the patent space—the rules, structure, participants, and practices within the patent system—the Article offers an alternative, more comprehensive paradigm of the patent medium—the network paradigm. A network, as opposed to a bulletin board, is a connected, multi-directional, multi-player platform, which allows both public and private communication, for various ends (including, but not limited to, informing). Instead of a static view of the patent medium as a whereabouts of informative announcements, the network paradigm suggests a dynamic perspective, considering the patent medium to be enabling a discourse. Beyond its theoretical contribution, the network paradigm serves as a powerful explanatory tool, offering profound implications for patent law. Approaching the patent space through the network paradigm prism resolves current oddities in the patent system. For instance, the network paradigm provides new understandings regarding phenomena such as patent pledging, early publication, and the first-to-file rule—incidents commonly considered enigmatic or only partially understood.

What Litigators Can Teach the Patent Office About Pharmaceutical Patents

Pharmaceutical patents listed in the FDA’s “Orange Book” are some of the most valuable patents in the world. Accordingly, for this valuable subset of patents, it is paramount that the Patent & Trademark Office (PTO) correctly issue valid patents and preclude invalid patents from issuing. In this paper, we study what happens to those patents in litigation, reporting the results for every Orange Book patent case that resulted in a merits decision. We find that about 25% of active Orange Book patents were invalidated in court. Since these invalid patents could wrongly increase the costs of prescription drugs, we investigate what happens during prosecution of these patents at the PTO. Our study is the first to link the prosecution of Orange Book patents directly to litigation outcomes. Our goal is to determine if there are ways to identify and prevent the issuance of these later invalidated Orange Book patents. We find that litigated Orange Book patents have unique characteristics that distinguish them from other pharmaceutical patents. They are issued by a relatively small number of examiners. Most litigated patents (90%) are “secondary” patents – patents on smaller tweaks to an existing drug rather than a patent on a new chemical. The owners of these later-litigated patent applications treat them very differently than they do other patents in the same field. They are part of large patent families, suggesting that the applicants are trying to build a patent fence around a known product. They frequently employ a procedural device known as “Track One” to obtain quicker patent prosecution. They are more likely to be subject to rejections based on double-patenting. When initially rejected by the patent examiner, owners of these applications are more likely to fight back rather than amend their claims. All of this suggests that applicants enter prosecution with these patents knowing that they are important and likely destined for litigation, and that they are deliberately creating patent “thickets” to make it harder for generics to enter the market. Remarkably, we find that while patent examiners already have more time to spend on Orange Book patents than on other patents, the prosecution history of many of these invalidated patents are identical. That is, many of these invalidated patents have the same assignee, the same examiner and the same prosecuting attorney cut and paste rejections as well as responses, thus creating identical or very similar prosecution histories. We also find that while the patents that end up being litigated are clearly distinguishable from other pharmaceutical patents during patent prosecution, there is little difference in the PTO between the patents that end up surviving a court challenge and the ones that are invalidated. Our data offer important guidance for reforming the process of prosecuting Orange Book patents. We can and should take advantage of advance knowledge about the importance of these patents to give them a more thorough examination early on. At the same time, the experience with cut-and-paste rejections suggests that we cannot simply give examiners more time and hope that they will do a more thorough job. That not only helps inform the policy suggestions we offer, but it sheds light on a long-standing academic debate about how much time and money we should spend examining patents. Further, our data highlight the importance of secondary patents and patent thickets in Orange Book litigation. We offer a number of suggestions to simplify and streamline patent prosecution and litigation to make it harder to exclude generic entry with a thicket of bad patents.

Student Research Project Report on the Basmati Patent case

RiceTec Inc, an American company, was granted a patent by the U.S. patent office in late 1997 to call the aromatic rice grown outside India ‘Basmati’ to which India objected. Since India has been one of the major exporters of Basmati rice, such a grant could negatively affect her trade. This paper is based on review work on the Basmati patent, the implications, and the legal battle that followed. This study was part of a student research project during the lockdown period.

감귤 활용 특허 추세 분석

Citrus fruits are native to India, Myanmar, Peninsular Malaysia, Indochina, China, Korea, and Japan. The citrus cultivation in the world spreads from the tropics(from 40 degrees north latitude to 40 degrees south latitude) to temperate zones, reaching about 50 countries. Among the ingredients of citrus peel, turpentine, rutin, and hesperedin have various effects. As a result of investigating cases of domestic and foreign patents related to citrus fruits and analyzing patent trends, domestic and foreign patent applications have been decreasing rapidly since 2017, and are mainly counted in the order of food, cosmetics, and medical substances. The distribution by country was 65% in Japan, 21% in China, and 11% in Korea. Japan is specialized in medicines, cosmetics and related machinery, while Europe is concentrated in medicines and cosmetics. In the United States, it appears that plant patents dominate. The patent trend in the field of citrus utilization in Korea appears to be in the early stages of maturity passed the development stage in the transition analysis divided into development stage, maturation stage, reflux stage, and resurrection stage.

Analysis on Prefabricated Space Structure Based on Overseas Patent Case Study

This study analyzes the method for easily constructing a simple space in various environments. It also analyzes cases of modular prefab construction structures and explores various solutions and development directions that can form temporary residential spaces. This research intends to propose the diverse methods and solutions for constructing residential space for users’ stable living environment in various unpredictable situations. This study amis to collect and analyze cases of various foreign patents related to the subject. With the analysis on the patents case, the prefab structures are mainly grouped into 4 types of 1) Assembly method using small parts, 2) Prefab module stacking method, 3) Space expansion method, and 4) Production methods of detailed elements. Based on the results, future research will inquire the lower cost and more efficient way of constructing prefab structure.

Do Standard-Essential Patent Owners Behave Opportunistically? Evidence from U.S. District Court Dockets

Do owners of standard-essential patents (SEPs) holdup companies that produce standard-compliant products? To explore this question, we use detailed information from the dockets of all U.S. patent cases filed 2010-2019 that assert or challenge SEPs to construct measures of opportunistic conduct by SEP licensors, including actions that took place before the lawsuit was filed. We find evidence of opportunistic behavior by the SEP enforcer in at least 75% of SEP assertions in court, and we analyze various factors that determine which opportunistic behaviors SEP enforcers rely on. We also show that opportunistic behavior can affect case outcomes, although the effect on settlement is ambiguous. Some behaviors increase the likelihood of a settlement, while others decrease it.

'The Invention, The Patent, and The Claim' in Patent Law: An Open-Access Casebook

This is a draft chapter, Invention, The Patent, and The Claim, from the forthcoming book, Patent Law: An Open-Access Casebook. In this chapter, we introduce students to different ways in which the contribution that an inventor has made to the art relates to the claims that grant her some legal rights, as mediated by the patent document. We begin with The Incandescent Lamp Patent Case, which we use to illustrate the nature of the inventive process. We then show how the role of the claim has changed over time, from Winans v. Denmead to Merrill v. Yeomans to Liebel-Flarsheim v. Medrad. That history demonstrates the range of possible roles that claims might play, and serves as a basis for class discussions arising from the still unsettled relationship between the invention, the patent, and the claim.

Federal Judge Seeks Patent Cases

Imagine the following advertisement popping up on Craigslist: FEDERAL JUDGE SEEKS PATENT CASES! (Waco) — Former patent litigator, recently appointed to the U.S. District Court for the Western District of Texas, longs for the intellectual challenge of a good patent fight. Can promise special procedural rules, efficient discovery, and speedy trials. Dismissal, stay, or transfer of case extremely unlikely. File in Waco and get the patent court you've always dreamed of! That probably seems bizarre. Still, and startlingly, it accurately portrays what’s happening in the Waco Division of the U.S. District Court for the Western District of Texas. One judge, appointed to the Western District only three years ago, has been advertising his courtroom through presentations to patent lawyers, comments to the media, procedural practices, and decisions in patent cases as the place to file a patent infringement lawsuit. That advertising has succeeded. In 2016 and 2017, the Waco Division received a total of five patent cases. In 2020, nearly eight hundred patent cases—more than 20 percent of all patent cases nationwide—were filed there. The centralization of patent cases before a single judge, acting entirely on his own to seek out patent litigation, is facilitated by the Western District’s case filing system, which allows plaintiffs to choose the specific judge who will hear their case. These dynamics—a judge advertising for patent cases and plaintiffs shopping for that judge—undermine public confidence in the impartiality of the judiciary, make the court an uneven playing field for litigants, and facilitate the nuisance suits patent trolls favor. Two common-sense reforms would reduce the harms of judge shopping: (1) district judges should, by law, be randomly assigned to cases, and (2) venue in patent cases should be tied to divisions within a judicial district, not just the district as a whole.

The Jurisprudence of the First Woman Judge, Florence Allen: Challenging the Myth of Women Judging Differently

A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men. This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference in judging. Judge Allen was the first woman judge many times over: the first woman elected to a general trial court (Cuyahoga County Common Pleas in 1920), the first woman elected to a state supreme court (Ohio 1922), the first woman appointed to a federal appellate court (U.S. Court of Appeals for the Sixth Circuit in 1932), and the first woman shortlisted for the U.S. Supreme Court. Her forty years on the bench included cases of constitutional law, administrative power, criminal process, labor rights, and patent cases. Using original archival research, this Article shows that Allen's judicial record supports the conclusion that women judge no differently from men. However, Allen worked hard to cultivate this conclusion, seeking to distance herself from claims of women’s difference and inferiority, and instead seeking to establish that women could “think like a man.” Her deliberate effort was to judge in a moderate, neutral, and objective manner, distancing the work from her feminist activism. Overall the historical record reveals the jurisprudence of the first woman judge as one of moderation, fitted to the male-centric norms of the profession and rejecting any promise of women’s advocacy on the bench.

Patent Accidents: Questioning Strict Liability in Patent Law

Accidental infringement of patent rights is a pervasive and growing problem in the Information Age. As IP rights proliferate and expand in scope, it is becoming increasingly easy for companies and individuals to inadvertently infringe patents. When such accidental infringement occurs, patent law holds the infringer strictly liable. This contrasts with many areas of tort law where defendants are only liable if they act negligently. This Article questions the normative desirability of strict liability in patent infringement cases. Assuming the primary value of patent law is utilitarian, the Article poses the research question: What liability rule will maximize social welfare? The Article answers the question theoretically by applying economic models of accidents developed in tort law literature. The research finds that a negligence rule is preferable. Unlike strict liability, negligence liability will encourage both patentees and technology users to take reasonable measures to prevent accidental infringement, and thus minimize the social cost of patent accidents. Therefore, the Article recommends reforms to the liability rule in direct patent infringement cases. Defendants should be liable for accidental patent infringement only when they fail to adopt reasonable care to avoid the infringement.

Efficacy of contrast-enhanced percutaneous nephrosonography to evaluate urinary tract patency in children.

A novel method known as contrast-enhanced percutaneous nephrosonography (cePNS), using an ultrasound contrast agent administered through the nephrostomy catheter, has been used to evaluate the urinary tract patency in children. Nine cePNS examinations were performed in seven children to evaluate the urinary tract patency prior to further management. The cePNS results were compared with the clinical evaluation of patent urinary tract cases or with surgery results. Both, the technical success rate and accuracy of cePNS examinations were 100%. CePNS is a radiation-free method and can be performed as a continuation of an ultrasound examination.

Serum Ceruloplasmin Is the Candidate Predictive Biomarker for Acute Aortic Dissection and Is Related to Thrombosed False Lumen: a Propensity Score-Matched Observational Case-Control Study.

Acute aortic dissection (AAD), one of the fatal diseases observed at the department of vascular surgery, is associated with a great mortality rate at the early stage. Ceruloplasmin (CP) is the plasma protein that functions as a copper transporter. The current retrospective research was carried out to assess CP contents and to examine the possible part in diagnosing patients with AAD. In addition, propensity score matching (PSM) was also utilized for reducing the bias in case screening as well as the clinical confounders. Using PSM, this study included 85 pairs of AAD cases (Stanford A and B dissection) and matched controls, and their CP levels were also detected through enzyme-linked immunosorbent assay (ELISA). Additionally, the relative clinical data were extracted from participants included in this study. After PSM adjustment for clinical variables, including gender, age, body mass index (BMI), heart ratio (HR), smoking, hypertension, diabetes mellitus, coronary heart disease (CHD), and stroke, the serum CP contents among AAD cases were remarkably increased compared with those among the normal subjects. Besides, the CP contents showed independent association with the AAD risk. Typically, the CP level was significantly positively correlated with platelet (R = 0.329) or C-reactive protein (R = 0.340) level. Meanwhile, the area under the receiver operating characteristic (ROC) curve (AUC) was 0.929 when CP was used to diagnose AAD, and the best threshold value was 36.82mg/dL. Serum CP content significantly increased in cases with thrombosed false lumen (FL) relative to those in patent FL cases. Results of logistic regression analysis suggested that a greater CP content indicated an increased thrombosed FL risk (OR = 1.11; 95% CI: 1.01-1.23; P = 0.040). Findings in this study suggest that serum ceruloplasmin contents evidently increased among acute aortic dissection cases. CP shows close correlation with the inflammatory factors among AAD cases. Further, CP may serve as the candidate biomarker to diagnose AAD and to identify an increased risk of thrombosed false lumen.

Determination of Liability in Infringement Cases of Method Patents Implemented by Multiple Actors

Shenzhen Jixiang Tenda Technology; with Case note by Yanqi Zhu

Early Certainty in patent cases involving by opposition proceedings

To obtain certainty about the validity and enforceability of a patent one has to go to court for a ruling. It is very important for patent owners and for their competitors to make decisions on product development based upon assumptions about the validity and enforceability of patents before it reaches court. If you are in court after developing a product then something went wrong in that process. An opposition at the EPO seems to be a good idea to test the arguments of invalidity, if you are a third party worried about the scope of the patent. If an opposition is filed against a patent then the time taken until a final decision gives additional uncertainty about the scope of patent protection and may diversely affect what you may or may not do in any national proceedings. The additional time period of uncertainty caused by EPO opposition procedures is explored in this study and compared with the expected time for nullity actions at a national court, exemplified for the German patent court.

Recalibrating the Disgorgement Remedy in Intellectual Property Cases

The five major US intellectual property (IP) regimes — trademark, trade secrecy, copyright, design patent, and utility patent laws — have quite different rules about the availability of disgorgement of infringer profits as a remedy. Traditional principles of restitution and unjust enrichment support awards of disgorgement of profits insofar as they are (1) levied against conscious wrongdoers, (2) attributable to the wrongful conduct, and (3) subject to equitable discretion. Unlike awards of actual damages, which aim primarily to compensate plaintiffs for harms suffered because of a defendant’s wrongdoing, disgorgement awards primarily seek to deter wrongdoing by ensuring that wrongdoers do not profit thereby. This Article presents a formal model that supports our judgment that these principles are consistent with the goal of optimal deterrence of IP infringement. Much of the Article presents a close study of the doctrinal structure of the five IP regimes’ approach to disgorgement. We find that trademark law is the most consistent of the five regimes with traditional restitutionary principles and the goal of optimal deterrence. Trade secrecy law, like trademark law, is substantially consistent. Design patent, copyright, and patent laws deviate in more significant ways. Disgorgement awards are always available to owners of copyrights or design patents, even against innocent infringers. Moreover, design patent law even deviates from traditional approaches to restricting awards to amounts attributable to infringement: instead, design patent law requires awards of total profits on the manufacture or sale of whatever “article of manufacture” to which an infringing design has been applied. Further, courts have thus far rarely recognized that disgorgement awards should be subject to equitable adjustments in copyright and design patent cases, although this may change after the Supreme Court’s characterization of disgorgement as an equitable remedy for copyright infringement. Patent law deviates from traditional restitutionary principles in a very different way: courts have ruled that Congress repealed disgorgement as a remedy for utility patent infringement in 1946, but patent law’s reasonable royalty awards can, in effect, effect a partial disgorgement of infringer profits. The Article makes recommendations about how courts can, within the statutory bounds of each IP regime, render disgorgement awards that are more consistent with traditional restitutionary principles in a manner that will promote the overall goals of the IP laws.

Two Centuries of Trademark and Copyright Law: A Citation-Network-Analysis Approach

The Supreme Court has decided many more patent cases than trademark or copyright cases. This is so not just in the past decade—the focus of the tenth annual Supreme Court IP Review at the Chicago-Kent College of Law, in September 2019, at which I presented this research—but in the past 20 decades. In gathering the entire body of the Court’s i.p. caselaw, for a study with citation-network-analysis tools, I found that patent cases greatly outnumber trademark and copyright cases. Moreover, patent cases, especially patent & antitrust cases, dominate the metrics for the most central cases in the citation network. One can, however, take the Court’s trademark and copyright cases out of the shadow of the patent cases, creating a citation network focused on those areas of i.p. law. This paper does so. Specifically, I focus on the basic citation and co-citation networks embedded in all the Supreme Court trademark and copyright cases that cite out to one or more prior Supreme Court cases in any doctrinal area. These i.p. cases run from Stevens v. Gladding, 58 U.S. (17 How.) 447 (1855), to, most recently, Mission Product Holdings, Inc. v. Tempnology, LLC, 139 S. Ct. 1652 (2019). The lesson is as clear as it is brief: trademark dominates the jurisprudence through 1972, then copyright dominates from 1973 to the present.

The gender gap in intellectual property in Latin America and Iberia: the case of patents

The World Intellectual Property Organization (WIPO) indicates two important gender gaps in the field of intellectual property (IP): 1) the difference between men and women in IP registry figures; 2) the significant concentration of IP registries in less than 20 countries. This study analyses the status of IP registered by women in the countries of Latin America (LATAM) and Iberia (IBER, Spain and Portugal) in comparison to the rest of the world. Given that there is scarce literature on IP sourcing from a gender perspective, a qualitative and quantitative analysis is offered in this research as an attempt to close this gap. The qualitative analysis is based on a comprehensive desk research on various documentary sources, while the quantitative research is based on official data from the World Intellectual Property Organization (WIPO) of the United Nations (UN). Findings indicate that women bring instrumental contribution to IP in Latin America and Iberia. However, since their achievements still remain unnoticeable, relevant policies and incentives will be necessary to close this gap.