scholarly journals Should Patent Infringement Require Proof of Copying?

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Patent Law ◽  
Patent System ◽  
Patent Infringement ◽  
Important Paper ◽  
Injunctive Relief ◽  
Definition Of ◽  
The Right ◽  
System Today ◽  
The Way

Patent law gives patent owners not just the right to prevent others fromcopying their ideas, but the power to control the use of their idea even bythose who independently develop a technology with no knowledge of thepatent or the patentee. In an important paper, Samson Vermont challengesthis received wisdom, arguing that independent invention should be adefense to patent infringement, just as it would be in copyright or tradesecret cases.Independent invention has much to recommend it. The most significantproblem facing the patent system today is the rise of so-called "patenttrolls" - entities who do not manufacture products or transfer technology,but wait and assert patents against successful companies who independentlydeveloped and manufactured the technology without knowledge of the patent.An independent invention defense would eliminate the troll problem in onefell swoop. Nonetheless, I have concerns. While I agree with Vermont thatwe can learn a great deal from the fact of independent invention, I am notyet persuaded that we can be sure that an independent invention defensewill have no undue effect on incentives. Complicating this difficultempirical question is the likelihood that the effects of an independentinvention defense would be different in different industries. Further, anindependent invention defense will significantly change any market forpatent rights that might exist or be developing today.In light of this, I suggest four steps we might take that take advantage ofVermont's insights without moving all the way to an independent inventionsystem. First, we should change the definition of willful infringement toexclude independent inventors. Second, we should adopt some form of a prioruser right. Third, we should give simultaneous invention greater credencein determining whether inventions are obvious. Finally, we might considerwhether the defendant independently invented as a factor in decidingwhether to grant injunctive relief and the conditions to impose on suchrelief.

Injunctive Relief under Anti-monopoly Law for the Holders of SEPs

2020 ◽  
Vol 69 (5) ◽  
pp. 474-488
Author(s):  
Yaojia Tang ◽  
Chunhui Tang
Keyword(s):  
Transaction Cost Economics ◽  
Patent Law ◽  
Private Governance ◽  
Competitive Effects ◽  
Proper Role ◽  
Injunctive Relief ◽  
Standard Essential Patents ◽  
The Right ◽  
Special Circumstances ◽  
Trust Law

Abstract In this article we develop a simple economic model to analyse the effects of injunctions obtained by the holders of standard essential patents (SEPs), which shows that patent hold-ups involve two types of behaviours in the context of SEP-encumbered fair, reasonable and non-discriminatory (FRAND) commitments. One is general trading hold-up, which is a phenomenon described in transaction cost economics; the other is an abuse of market power prohibited by anti-trust law and/or competition policy. Therefore, it is utterly vital to identify the proper role of private governance and anti-trust intervention. A FRAND commitment does not include a waiver of the right of the holder of an SEP to seek injunctions. The holder of an SEP still can obtain injunctions. However, the granting of injunctions for holders of SEPs should be limited in special circumstances, so as to balance the interests of patentee and user. The holder of an SEP seeking an injunction against a willing licensee may not necessarily constitute an abuse of dominance; anti-trust scrutiny needs to pay much attention to anti-competitive effects. China’s Patent Law lacks provisions regarding injunctive relief. China’s Civil Procedure Law is vague with regard to the granting of injunctions, as are relevant judicial interpretations by the Supreme People’s Court. The decision in InterDigital and the draft of the Anti-monopoly Guidelines (2017) in China demonstrate there are some issues which need  to be resolved for the Anti-monopoly Law and the enforcement thereof.

‘Enforcement of Patent Law in Civil Proceedings’ – A Conference Report on the Fifth Bi-national Seminar of TU Dresden and Charles University in Prague, 26 November 2019

2020 ◽  
Vol 69 (6) ◽  
pp. 624-629
Author(s):  
David Petrlík ◽  
David Linke
Keyword(s):  
Automotive Industry ◽  
Conference Report ◽  
Patent Law ◽  
Patent Infringement ◽  
Injunctive Relief ◽  
Civil Proceedings ◽  
Special Cases ◽  
Good For ◽  
Proportionality Test ◽  
Made In

Abstract What is the law good for if it cannot be enforced? This question is currently virulent in patent law, especially when it comes to the enforcement of injunctive relief claims. From the German perspective, a question arises: does a patent infringement have to automatically result in an injunction (as is the situation currently according to Sec. 139 of the Patent Law Act) or should exceptions be made in special cases? In particular, the automotive industry and also the IT sector demand a modernisation of this provision by introducing a proportionality test, as even the smallest patentable components in networked products can lead to the entire production being blocked in the event of a successful injunction action. Similar problems exist in US patent law. The enforceability of Czech patent law also faces challenges that need to be solved. For this reason, the fifth seminar on the topic ‘Enforcement of Patent Law in Civil Proceedings’ took place on 26 November 2019 at Charles University Prague.

Constructing an Objective History of the U.S. Patent System

2020 ◽  
pp. 65-88
Author(s):  
Jonathan M. Barnett
Keyword(s):  
Patent Law ◽  
Patent System ◽  
Antitrust Law ◽  
Historical Trends ◽  
Qualitative Evidence ◽  
System P ◽  
Injunctive Relief ◽  
History Of ◽  
Patent Applications ◽  
The U.S

This chapter presents a history of the U.S. patent system based on quantitative and qualitative evidence relating to patentees’ expectations that courts will uphold the validity of contested patents, find infringement, and award injunctive relief against infringing parties. Additionally, this chapter describes historical changes in antitrust law that have impacted patentees’ ability to enter into licensing and other patent-dependent transactions. Based on these features of patent law and antitrust-related patent law, supplemented by background institutional developments, the history of the U.S. patent system during 1890–2006 consists of three periods: (i) a strong-patent, weak-antitrust period from 1890 through the mid-1930s; (ii) a weak-patent, strong-antitrust period from the late 1930s through the 1970s; and (iii) a strong-patent, weak-antitrust period from the early 1980s through 2006. Historical trends in the volume of patent applications by U.S. inventors are consistent with this division of U.S. patent history.

scholarly journals Socrates' understanding of the task of philosophy

2021 ◽  
Vol 4 (2) ◽  
pp. 103-114
Author(s):  
Šejla Avdić
Keyword(s):  
Human Life ◽  
Indelible Mark ◽  
Modern Culture ◽  
Philosophical Thought ◽  
Modern Thought ◽  
Definition Of ◽  
The Right ◽  
The Way

The article tries to present Socrates' understanding of the task of philosophy step by step with reference to contemporary interpretations. Along the way, an inevitable obstacle is encountered, and that is the problem of the contemporary meanings of Socrates 'philosophy. Socrates did not leave a written trace behind, so we draw knowledge about his philosophy and life from the main testimonies, which are the writings of Aristophanes, Xenophon, Plato and Aristotle. Given our acceptance and affection for certain testimonies, we are moving further and further away from the definition of historical Socrates. The paradox of this distancing, is shown in the fact that Socrates in this way in his mental heritage becomes closer to us as our contemporary. But what cannot be ignored is the fact that Socrates, with his philosophy, left an indelible mark in the development of the whole of philosophical thought and the determinants of modern culture as a whole. The transition from the question of nature to the question of human life, through the introduction of a method aimed at eliminating misconceptions and the possibility of determining the right direction for action, is what makes Socrates one of the most important philosophers and leaves him in today's view of the source of modern thought.

scholarly journals The Audience in Intellectual Property Infringement

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Intellectual Property ◽  
Copyright Law ◽  
Patent Law ◽  
Legal Rules ◽  
Definition Of ◽  
The Right ◽  
Intellectual Property Infringement

Every IP right has its own definition of infringement. In this paper, wesuggest that this diversity of legal rules is largely traceable todifferences in the audience in IP cases. Patent, trademark, copyright, anddesign patent each focus on a different person as the fulcrum forevaluating IP infringement. The fact that patent law focuses on an expertaudience while trademark looks to a consumer audience explains many of thedifferences in how patent and trademark cases are decided. Expert audiencesare likely to evaluate infringement based on the technical similaritybetween the plaintiff’s and defendant’s works. Consumers, by contrast, arelikely to pay more attention to market substitution and less attention tohow things work under the hood. Understanding the different audiences in IPinfringement is critical to understanding how the IP regimes defineinfringement.The focus on audience has normative as well as descriptive implications.Neither patent law, with its focus on experts and technical similarity, nortrademark law, with its market-based consumer focus, has it entirelycorrect. Rather, we suggest that as a general matter infringement of an IPright should require both technical similarity and market substitution.Assessing infringement through the expert’s eyes ensures that the lawprevents closely related works in the field while allowing latercontributions to the field that are sufficiently different. The consumervantage point ensures that we protect IP owners only when they have beenharmed in the marketplace.IP owners who want to show infringement should have to show both that thedefendant’s work is technically similar to their own from the expert’svantage point and that the defendant’s use causes the plaintiff marketharm. Copyright law, which does look both to experts and to consumers atvarious points in infringement analysis, is on the right track.

scholarly journals Policy Levers Tailoring Patent Law to Biotechnology: Comparing European and US Approaches

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Supreme Court ◽  
Patent Law ◽  
Antitrust Law ◽  
Class Actions ◽  
Injunctive Relief ◽  
American Express ◽  
Antitrust Case ◽  
The Supreme Court ◽  
The Right ◽  
Appeals Process

In a string of recent opinions, the Supreme Court has made it harder forconsumers to avoid arbitration clauses, even when businesses strategicallyinsert provisions in them that effectively prevent consumers from beingable to bring any claim in any forum. In American Express Co. v. ItalianColors Restaurant, an antitrust case, the Court held that class-actionwaivers embedded in mandatory arbitration clauses were enforceable evenwhen they had the effect of making it economically irrational for thevictims of antitrust violations to pursue their claims.Courts have long considered antitrust claims to be too complex and tooimportant to trust to private arbitrators. By the 1980s, the Supreme Courtpermitted federal statutory rights, including antitrust claims, to bearbitrated so long as the plaintiffs could effectively vindicate theirrights in the alternative forum. In 2013, the Supreme Court in ItalianColors fundamentally weakened the Effective Vindication Doctrine when itheld that arbitration clauses that precluded class actions and classwidearbitration were enforceable even when they effectively prohibited allindividual plaintiffs from bringing a case.Arbitration differs from litigation in ways that harm the interests ofconsumer antitrust plaintiffs. For example, arbitration limits discoveryand has no meaningful appeals process. Furthermore, defendants use theterms in arbitration clauses to prevent class actions and to undercut thepro-plaintiff features of antitrust law, including mandatory trebledamages, meaningful injunctive relief, recovery of attorneys’ fees, and alengthy statute of limitations. With the Court’s undermining of theEffective Vindication Doctrine in Italian Colors, defendants’ efforts todismantle these pro-plaintiff components of antitrust law may prove moresuccessful in the future.The problems associated with antitrust arbitration are magnified inconcentrated markets. Supporters of enforcing arbitration clauses assumethat they these contractual provisions are the result of an informed,voluntary bargain. But when a market is dominated by a single supplier or asmall group of firms, consumers often find it impossible to purchase anecessary product while retaining the right to sue, especially sincearbitration clauses are generally embedded in contracts of adhesion. Thismeans that in the markets most likely to be affected by antitrustviolations, consumers are least likely to be able to avoid mandatoryarbitration clauses. Furthermore, when mergers result in concentratedmarkets, they can increase the problems explored in Part Two.Antitrust authorities can address the problem of proliferating arbitrationclauses. When evaluating mergers, officials at the Federal Trade Commissionand the Antitrust Division of the Department of Justice can threaten tochallenge the merger unless the merging parties agree to specifiedconditions, such as the divestiture of certain assets. Because thosemergers that pose the greatest risk of anticompetitive effects also magnifythe problems associated with mandatory arbitration clauses, antitrustofficials would be wise to condition merger approval on the mergingparties’ agreement to not require arbitration of antitrust claims.

scholarly journals Active Promotion of Useful Arts

2017 ◽  
Vol 4 (2) ◽  
pp. 241-260
Author(s):  
Brian Harris
Keyword(s):  
Social Benefit ◽  
Patent System ◽  
Patent Infringement ◽  
Collective Knowledge ◽  
Patent Owner ◽  
Patent Rights ◽  
The Right ◽  
The Cost ◽  
Exclusive Right ◽  
Civil Matter

The U.S. Constitution grants Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” To this end, Congress created the copyright system “[t]o promote the Progress of Science” and the patent system for promoting the progress of useful arts. The American patent system can be though of as a vehicle for converting an intangible idea into a form of property. Since the beginning of the American patent system, social benefit has been a key component of the decision to grant a patent. Some view patent rights as a form of monopoly, termed a “patent monopoly.” Because early Americans had strong anti-monopoly sentiments, their decision to institute a system that would allow for a patent monopoly demonstrates a recognition of the importance of furthering collective knowledge. However, a patent can be essentially worthless if its owner is unable to enforce it. While a patent confers the right to exclude others from making, using, or selling whatever the patent claims, this right has been restated by some to actually be more akin to “a right to try to exclude” others. One reason is that the right to exclude can only be exercised on the condition that the patent owner also has the financial means to exclude. There is no criminal penalty for patent infringement. Instead, patent infringement is strictly a civil matter and patent owners are responsible for the costs associated with enforcement. Thus, if a patent owner is unable to afford the cost of litigation, the right to exclude might as well not exist.

To Obey or Not to Obey? Mencius’ Discourse on the Political Duties of Officials

2016 ◽  
Vol 2 (2) ◽  
pp. 190-216
Author(s):  
Fang Xudong (方旭东)
Keyword(s):  
The Political ◽  
Active Service ◽  
Universal Definition ◽  
Definition Of ◽  
The Right ◽  
The Way

Mencius’ discourse on officials who could not be summoned by the king reveals that, according to him, no universal definition of a subject’s political duties existed toward his ruler. On the contrary, duties were determined by the subject’s status (i.e., whether he was an official in the bureaucracy) as well as by concrete circumstances (i.e., whether he was on active service or whether the king wanted to see him in order to inquire about the Way). Indeed, from Mencius’ standpoint, context mattered considerably when it came to the question of political duties and in fact, Confucian etiquette always reflected the same spirit of differentiation among status and circumstances. Furthermore, the ministers’ ethics as understood by Mencius appear to be founded on contract, the spirit of which compelled and also conferred the right to any minister with dignity to unilaterally terminate the contract and resign from his post if he found himself unable to carry out successfully his duty or realized that his ruler had no need for his advice.

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