Divided Infringement and the Doctor-Patient Relationship PDF Download
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Author: Rachel Sachs
Publisher:
ISBN:
Category :
Languages : en
Pages : 12
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Book Description
With its recent en banc decision in Akamai v. Limelight, the Federal Circuit has displayed its willingness to expand the scope of divided infringement liability for method claims under 35 U.S.C. § 271. Most of the cases to have considered the question of divided infringement thus far, including Akamai, have involved method patents relating to business methods or software. As such, it is unclear whether the courts will apply an identical analysis in the life sciences context. Specifically, there are important differences between the corporation-consumer relationship implicated in cases like Akamai and the doctor-patient relationship implicated in cases involving diagnostic method claims or method-of-treatment claims. This Essay will consider the role of the doctor-patient relationship within the divided infringement paradigm, considering the ways in which the courts both are likely to handle it doctrinally and should handle it as a more theoretical matter.
Author: Rachel Sachs
Publisher:
ISBN:
Category :
Languages : en
Pages : 12
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Book Description
With its recent en banc decision in Akamai v. Limelight, the Federal Circuit has displayed its willingness to expand the scope of divided infringement liability for method claims under 35 U.S.C. § 271. Most of the cases to have considered the question of divided infringement thus far, including Akamai, have involved method patents relating to business methods or software. As such, it is unclear whether the courts will apply an identical analysis in the life sciences context. Specifically, there are important differences between the corporation-consumer relationship implicated in cases like Akamai and the doctor-patient relationship implicated in cases involving diagnostic method claims or method-of-treatment claims. This Essay will consider the role of the doctor-patient relationship within the divided infringement paradigm, considering the ways in which the courts both are likely to handle it doctrinally and should handle it as a more theoretical matter.
Author: Dmitry Karshtedt
Publisher:
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Category :
Languages : en
Pages : 0
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Book Description
This essay responds to and builds on "Economic Theory, Divided Infringement, and Enforcing Interactive Patents," an article published by Professor Keith Robinson. In his article, Professor Robinson analyzed liability under various tests courts have developed to address the so-called "divided infringement" problem, which arises when multiple entities perform the steps of a method patent claim, under the three leading economic theories of patent law -- reward theory, prospect theory, and rent-dissipation theory. In particular, Professor Robinson concluded that imposition of liability for divided infringement of method claims under joint enterprise principles is consistent with all three of these theories. This essay surveys recent developments in the law of divided infringement and shows how they have complicated the liability landscape that Professor Robinson described in his article. Furthermore, the essay applies Professor Robinson's approach to imposition of liability for divided infringement under the principles of causal responsibility, which I described in an earlier article, "Causal Responsibility and Patent Infringement." The essay concludes that liability based on causal responsibility -- which, like joint enterprise, has deep roots in the common law -- is also consistent with reward theory, prospect theory, and rent-dissipation theory. In addition, the essay considers broader implications of relying on common-law attribution principles in patent cases.
Author: Nathan Deleault
Publisher:
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Category :
Languages : en
Pages : 0
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Book Description
On August 31, 2012 the US Court of Appeals for the Federal Circuit issued its en banc decision in Akamai Technologies, Inc. v. Limelight Networks, Inc. -- F.3d -- 2012 WL 3764695. This case marks the latest installment of Federal Circuit jurisprudence dealing with the interpretation of Section 271 of Title 35 of the US Code dealing with patent infringement. Section 271(a) describes direct infringement stating “whoever without authority makes, uses, offers to sell, or sells any patented invention” without authorization, “infringes the patent.” 35 USC § 271 (a). Indirect infringement is addressed in Sections 271(b) and (c). Accordingly, one can be held liable for the infringement of another if one “induces the infringement of the patent” or contributes to the infringement of a patent by providing a “material part of the invention...not...suitable for substantial noninfringing use.” 35 USC §§ 271 (b-c). It is well established that for there to be indirect infringement liability, there must also be direct infringement liability. In cases product or apparatus patent infringement, this requirement is seldom a problem because direct infringement is readily determined. The courts have said that whoever adds the last part to an infringing article is the direct infringer. Applying these principles to method patents, however, presents a different problem. What to do when multiple parties have undertaken the essential steps of the method, leading to infringement, but none of the parties individually can be considered an infringer? In 2007 and 2008 the Federal Circuit answered these questions. In two controversial cases, the court held that section 271(a) requires “that all the steps of a claimed method be practiced, alone or vicariously, by a single entity or joint enterprise.” Akamai, at *35 (referencing BMC Resources, Inc. v. Paymentech, L.P., 498 F.3d 1373, 1378-79 (Fed.Cir.2007) & Maniauction, Inc. v. Thompson Corp., 532 F.3d 1318, 1329 (Fed.Cir.2008)). What this means is that multi-party, direct infringement of a method patent can only occur if there are agency relationships between the inducer and each of the parties. In Akamai, the en banc panel revisited those holdings but arguably added to the controversy rather than clarifying the rule. A bare majority decided to not answer the direct infringement question, and instead held that inducement can occur in the absence of direct infringement. Does this “new rule” represent legitimate statutory interpretation, as the majority says, or merely policy making as the dissent argues? This case represents an important piece of law in this area and this Note will analyze the decision as compared to prior precedent and argue for a position.
Author: Melissa F. Wasserman
Publisher:
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Category :
Languages : en
Pages : 0
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Book Description
Generally, in order to infringe a U.S. patent, the entire patented invention must be practiced within the United States. However, as technology evolves it is becoming harder to contain inventions within national borders. Specifically, the advancement of networking and communications technologies allows for the rapid, cost-efficient dissemination of information across countries' borders. As a result, the number of inventions that are being practiced in multiple jurisdictions, or the practicing of divided infringement, is on the rise. Potential infringers that commit divided infringement are practicing patented inventions, escaping liability in all jurisdictions, but still reaping the rewards of the American market. Consequently, potential infringers who commit divided infringement are undercutting the incentive to innovate, the primary purpose of the patent system. To solve the problem of divided infringement, this Note proposes expanding the extraterritorial scope of U.S. patent law by adopting a substantial effects test, limited by comity concerns.
Author: Dmitry Karshtedt
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
It is not uncommon for multiple parties in the stream of commerce -- manufacturers, distributors, end users -- to be involved in the infringement of a single patent. Yet courts continue to struggle with such scenarios. Attempts to deal with them -- particularly when plaintiffs asserted so-called method patents, which cover specific “steps,” or actions -- have produced results that defy commonsense notions of legal responsibility. In method patent cases, the patentee must clear much higher legal hurdles to prevail against a manufacturer who designed and supplied an infringing device than against an end user who simply bought that device and operated it as intended. The manufacturer can lose only upon proof of fault, while the user is subject to strict liability -- a result that seems backwards because the manufacturer is clearly the more responsible party. Even greater difficulties arise when the manufacturer performs some steps of a method patent and the user performs the others, giving rise to a so-called “divided infringement” problem. One such case, Akamai v. Limelight, has been in litigation for over ten years and generated multiple appellate opinions, including a decision by the Supreme Court. Although the Court of Appeals for the Federal Circuit finally resolved Akamai in a fact-specific fashion, no comprehensive solution to the divided infringement problem is in sight. I explain that these problems persist because patent law formalistically clings to what I term the “performer/non-performer distinction,” which holds that physical performance of an act is the linchpin of legal accountability. I then contend that they can be solved by reading the Patent Act in view of the principle of causal responsibility, which pervades the law and rests on a firm philosophical foundation. Simply put, this principle holds that one is responsible for the actions of others that one has caused, leading to the legal effect of imputing the act of the “causee” (in patent cases, often the user) to the causer (e.g., the manufacturer). I draw on examples from criminal law and tort law to elucidate this principle and demonstrate its consistency with the Patent Act. I also maintain that applying causal responsibility in patent law would lead to three practical and sensible results. First, doing so would effectively lower the mens rea barriers needed to establish the liability of manufacturers who supply devices configured so that their only intended use by a passive customer results in the performance of steps of some method patent. Second, it would provide a path for resolving the vexing problem of divided infringement exemplified by Akamai. Third, the proposed approach may in some cases help to shift the burden of ensuring compliance with existing patents from end users to manufacturers, which is as it should be.
Author: W. Keith Robinson
Publisher:
ISBN:
Category :
Languages : en
Pages : 70
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Book Description
High tech companies - especially in the emerging areas of the Internet of Things, wearable devices, and personalized medicine - have found it difficult to enforce their patents on interactive technologies. This is especially true when multiple parties combine to perform all of the steps of a claimed method. This problem is referred to as joint or divided infringement, and some commentators advocate that “interactive” patents susceptible to divided infringement should not be enforced.In contrast, this article argues that economic theory supports the enforcement of interactive patents. Previous papers have analyzed divided infringement problems from a doctrinal and policy perspective. This article is the first to analyze divided infringement from an economic perspective, using three prevalent economic theories of the patent system.Uniquely, all three prevalent economic theories of the patent system - (1) reward theory, (2) prospect theory, and (3) rent dissipation theory - support the enforcement of interactive patents. Reward theory is consistent with enforcing the rights of interactive patents so long as the patent system balances the social cost with the social benefit of interactive technologies. Prospect theory recommends enforcing interactive patents where it would promote an inventor's ability to commercialize her invention free from direct competition. Finally, rent dissipation theory suggests enforcing interactive patents if it will effectively reduce the dissipation of patent rents.Viewing interactive patent enforcement through the lens of these economic theories reveals how doctrinal tests for divided infringement may align with the economic goals of the patent system. Although it is likely that the doctrinal test for divided infringement will continue to evolve, start-ups and disruptive, hi-tech companies who own interactive patents should find some guidance in the notion that the economic underpinnings of the patent system support enforcement of their interactive inventions.
Author: Kimberly A. Moore
Publisher: West Academic Publishing
ISBN:
Category : Law
Languages : en
Pages : 952
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Book Description
This book sets out governing statutes and rules at the beginning of each chapter and includes sample litigation documents where possible. The casebook begins with discussions of who to sue, where to sue, pleading requirements, discovery, and trial strategy. It then moves into substantive legal issues. The Third Edition includes new material on pharmaceutical litigation under the Hatch-Waxman Act and the most developments in the law of invalidity and infringement. The book next addresses issues surrounding remedies, including injunctive relief (with a discussion of the Supreme Court's eBay decision), contempt proceedings, and damages. Also included are post-trial matters including jury instructions, special verdict forms, the preclusive effect of final judgments, judgment as a matter of law, and new trial motions. Finally, the book covers the appeal process and reexamination and reissue proceedings.
Author: American Bar Association. House of Delegates
Publisher: American Bar Association
ISBN: 9781590318737
Category : Law
Languages : en
Pages : 216
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Book Description
The Model Rules of Professional Conduct provides an up-to-date resource for information on legal ethics. Federal, state and local courts in all jurisdictions look to the Rules for guidance in solving lawyer malpractice cases, disciplinary actions, disqualification issues, sanctions questions and much more. In this volume, black-letter Rules of Professional Conduct are followed by numbered Comments that explain each Rule's purpose and provide suggestions for its practical application. The Rules will help you identify proper conduct in a variety of given situations, review those instances where discretionary action is possible, and define the nature of the relationship between you and your clients, colleagues and the courts.
Author: Chung-Lun Shen
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
The main purpose of the article is to attempt a new direction of interpretation over the all-element rule and territoriality under patent law through the point of patent value to assuage the challenges from emerging technologies. As a novel contribution for the studies upon patent law, the article takes the concept of patent economic value, instead of technical value, to aid judicial case law in breaking through the difficulty in interpretation of the all-element rule and territoriality in the cases of cross-border divided patent infringement. Rather than relying upon the technical-oriented track, the article finds out another track that is based upon the economic interest produced by practice of the patent in the market. By possession and assignment of the entire economic interest derived from the patent, the article gives a new interpretation of the all-element rule and the territoriality principle to evaluate the cross-border divided patent infringement, and proposes the resolution against the related disputes as well.
Author: Lynda J. Oswald
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
Congress created the Federal Circuit as a specialized appellate court with the goals of fostering uniformity in outcomes, coherent evolution of patent law doctrine and policy, and the development of judicial expertise and competency. However, the creation of this specialized appellate court has had a downside. Because the Federal Circuit has narrow jurisdiction and hears a relatively restricted range of cases, it is much less likely to look at traditional common law doctrines across numerous dimensions, as would the regional courts of appeal with broader jurisdiction. As a result, its decisions can misconstrue those traditional principles in applying them to the unique and complex patent law issues before the court. This article examines this phenomenon in the context of multi-actor patent infringement, which encompasses the sub-categories of joint and divided patent infringement. The Federal Circuit has used imprecise vocabulary to articulate increasingly narrow bases of liability for multi-actor infringement. Returning explicitly and openly to the foundations of the tort and agency law doctrines that traditionally underlie multi-actor infringement doctrine would enable the Federal Circuit to articulate liability rules that are more principled, more grounded in traditional legal doctrine, and more consistent with the overall patent law scheme. Although such an approach will not resolve all multi-actor patent infringement cases, it will help isolate the subset of cases not susceptible to easy resolution under current precedent and doctrine, thus highlighting the areas in need of congressional intervention.
