44 law, economics, and business professors filed an amicus brief yesterday in support of Lexmark International in its Supreme Court case against Impression Products. The professors argue that although patent exhaustion provides the baseline rule for sales of a patented product by a patent owner, parties should be free to contract around the baseline rule in their business dealings. Read more
Author: David Lund
CPIP Scholars File Amicus Brief Urging Consideration of Claimed Inventions as a Whole
Last week, CPIP Senior Scholar Adam Mossoff and I filed an amicus brief on behalf of 15 law professors, including CPIP’s Devlin Hartline, Chris Holman, Sean O’Connor, Kristen Osenga, and Mark Schultz. We urge the Supreme Court to grant certiorari in TDE Petroleum v. Read more
IPO Publishes Analysis of Recently Released Legislative Proposal
Last week, the Intellectual Property Owners Association (IPO) released a proposed revision to the section of the Patent Act that defines the subject matter eligible for patenting. I discussed the importance of the proposal, noting that there have been several calls for legislative solutions to overly restrictive understanding of what inventions are eligible for patents. Read more
IPO Proposes Legislative Solution to the Morass of Patent Eligibility
On January 31, the Intellectual Property Owners Association (IPO) released a proposed revision to the section of the Patent Act that defines the subject matter eligible for patenting.
IPO’s proposed text for an amended 35 U.S.C. § 101 can be downloaded here. Read more
Trading Technologies v. CQG: Federal Circuit Gets One Right On Software Patents
The Federal Circuit issued another important opinion yesterday affirming that software is a patentable invention in the United States. In Trading Technologies Int’l, Inc. v. CQG, Inc., the court determined that a graphical user interface (GUI) for a commodities trading platform was patent eligible. Read more
Members of Congress Express Concerns About Abuses of PTO’s Inter Partes Review System
Two years ago, CPIP published an issue paper warning about the tremendous potential for abuse inherent in the America Invents Act’s newly-created administrative review programs. It now appears that several members of Congress are concerned as well. On December 5, 2016, a bipartisan group of New York representatives sent a letter to Michelle Lee, Director of the United States Patent and Trademark Office (USPTO), raising their concerns about abuse of the inter partes review (IPR) system by financial speculators. Read more
New Paper Exposes Flaws in Smallest Salable Patent-Practicing Unit Rule
CPIP Research Scholar Jonathan Putnam and co-author Tim Williams’ paper “The Smallest Salable Patent-Practicing Unit (SSPPU): Theory and Evidence,” shows how poorly patent law measures the value of litigated patents. Using theory and empirical evidence, they show that the economic contribution of patented technology is better measured by the output, such as the commercial product, rather than the smallest input, or component, that embodies the invention. Read more
New Paper Addresses Flaws in Patent Holdup Theory
Stephen Haber and Alexander Galetovic of the Hoover Institution’s Working Group on Intellectual Property, Innovation and Prosperity (IP2) published a new working paper on the problems with Patent Holdup Theory. In “The Fallacies of Patent Holdup Theory,” Professors Haber and Galetovic show that Patent Holdup Theory is based on three fundamental errors. Read more
Federal Circuit Improperly Extends Abstract Idea Exception to Industrial Machines
An oil well drilling rig is not an abstract idea. A method of operating an oil well drilling rig is also not an abstract idea. This proposition should be clear to all, but in TDE Petroleum Data Solutions v AKM Enterprise, the Federal Circuit held that a method of operating an oil well drilling rig is directed to the abstract idea of “storing data, receiving data, and using mathematics or a computer to organize that data and generate additional information.” Read more