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Author: Timothy R. Holbrook
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
Additive manufacturing techniques, colloquially referred to as 3D printing, increasingly will place pressure on the world's patent systems in a manner akin to the challenges the copyright systems faced due to digital files. Unlike copyright, however, the digital files themselves do not, under present law, constitute the patented invention itself. A co-author and I have advocated that, under current US law, there should be infringement based on the digital files themselves, if someone sells or offers to sell the file that will “print” the patented invention. We dubbed this “digital infringement.” Additionally, others have called for mechanisms to protect patent holders from losing control of their invention by, for example, drafting claims that are specific to such digital files. While such digital infringement would afford patent owners greater protections against 3D printing, it also creates issues of its potential the extraterritorial reach. The same case that opened the door to digital infringement in the US - Transocean - also has the potential to dramatically expand the extraterritorial reach of a US patent. In theory, anyone in the world offering to sell or selling the digital file to someone in the US could not be liable for patent infringement in the US. Also, if the sale results in massive copies of the invention outside of the US, it could be possible for a party to responsible for the damages arising from those copies, so long as there was a domestic act of infringement. US case law currently prevents such a damages award, but it is not clear the courts answered the questions correctly. The chapter explores this dynamic and offers possible mechanisms for addressing this concern, such as a consideration of conflict of laws prior to any assessment of liability.
Author: Timothy R. Holbrook
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
Additive manufacturing techniques, colloquially referred to as 3D printing, increasingly will place pressure on the world's patent systems in a manner akin to the challenges the copyright systems faced due to digital files. Unlike copyright, however, the digital files themselves do not, under present law, constitute the patented invention itself. A co-author and I have advocated that, under current US law, there should be infringement based on the digital files themselves, if someone sells or offers to sell the file that will “print” the patented invention. We dubbed this “digital infringement.” Additionally, others have called for mechanisms to protect patent holders from losing control of their invention by, for example, drafting claims that are specific to such digital files. While such digital infringement would afford patent owners greater protections against 3D printing, it also creates issues of its potential the extraterritorial reach. The same case that opened the door to digital infringement in the US - Transocean - also has the potential to dramatically expand the extraterritorial reach of a US patent. In theory, anyone in the world offering to sell or selling the digital file to someone in the US could not be liable for patent infringement in the US. Also, if the sale results in massive copies of the invention outside of the US, it could be possible for a party to responsible for the damages arising from those copies, so long as there was a domestic act of infringement. US case law currently prevents such a damages award, but it is not clear the courts answered the questions correctly. The chapter explores this dynamic and offers possible mechanisms for addressing this concern, such as a consideration of conflict of laws prior to any assessment of liability.
Author: Timothy R. Holbrook
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
Patents are generally considered to be the most territorial of all the various forms of intellectual property. Even patent law, however, has confronted issues involving the application of a U.S. patent to extraterritorial activity. The Supreme Court has expressed an interest in both issues - the extraterritorial application of U.S. law and patent law. At times, these interests have intersected. Notwithstanding the Court's recent elaborations on extraterritoriality, the approach by the U.S. Court of Appeals for the Federal Circuit has been, at best, inconsistent. At times the court has afforded extraterritorial protection, even in the face of strong territorial language in the patent statute itself. At other times, however, it has approached the issue of extraterritoriality more restrictively, even when the statute itself expressly contemplates the regulation of activities outside of the United States. This dynamic has been addressed by myself and other scholars. More recently, however, the Federal Circuit has addressed the issue of patent damages for extraterritorial activities. These scenarios have arisen because there necessarily has been an act of domestic patent infringement. The damages theory advocated by the patent holder, however, has attempted to ensnare overseas sales, either under a lost profits or reasonable royalty theory. Additionally, the Federal Circuit has begun to address the appropriate scope of damages for infringement under § 271(f) of the Patent Act, a provision that defines infringement as the exportation of all the components of an invention, or a single component with no substantial non-infringing use, where it is to be assembled abroad. Necessarily, this provision contemplates the regulation of foreign markets through the domestic hook of acts of exportation. The Federal Circuit, nevertheless, rejected the patentee's requested remedy in this case. This Article turns to the issue of the extraterritorial reach of patent damages. It analyzes the Federal Circuit's recent pronouncements using the two-step method articulated by the Supreme Court in RJR Nabisco, Inc. v. European Community. This analysis suggests that damages for infringement under various aspects of the Patent Act can be treated differently with respect to extraterritoriality. This Article goes on to suggest that the Federal Circuit's approach lacks nuance to account for the particular economic and legal circumstances that differentiates the different infringement provisions at stake. It draws on earlier work where I advocated for a conflicts-based approach to extraterritorial application of U.S. patents and extends that work to these scenarios, offering a more balanced approach to assessing whether damages are appropriate in these circumstances. Finally, this Article explores whether the various damages theories involved in these cases, regardless of the territorial limits, suggest it is time to revisit the foreseeability/proximate cause aspect of Rite-Hite. The theories of damages seem quite far removed from the actual acts of infringement, even if they occurred within the United States. Some scholars have begun work on this enterprise, and these cases suggest such consideration is ripe.
Author: Tanya Aplin
Publisher: Edward Elgar Publishing
ISBN: 1785368346
Category : Law
Languages : en
Pages : 608
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Book Description
This Handbook provides a scholarly and comprehensive account of the multiple converging challenges that digital technologies present for intellectual property (IP) rights, from the perspectives of international, EU and US law. Despite the fast-moving nature of digital technology, this Handbook provides profound reflections on the underlying normative legal dilemmas, identifying future problems and suggesting how digital IP issues should be dealt with in the future.
Author: Melissa F. Wasserman
Publisher:
ISBN:
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: 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: Timothy R. Holbrook
Publisher:
ISBN:
Category :
Languages : en
Pages : 0
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Book Description
Globalization has created increasing pressure on, and erosion of, traditional territorial limits on intellectual property laws. This trend was first seen in trademark and copyright law, but recent decisions have shown the change in patent law as well. Indeed, the Supreme Court is set to review the extraterritorial scope of U.S. law in the case AT&T v. Microsoft. The Federal Circuit's approach to these issues, however, has been inconsistent and lacks a consistent theoretical underpinning. In this paper, I reject both a strict territorial and a broad, effects-based approach to the extraterritorial application of U.S. patent law. Instead, I articulate a balanced approach that would consider not only whether the patent would be infringed under U.S. law but also whether the acts would constitute infringement in the relevant foreign countries. This balanced approach would require courts to transparently address potential conflicts of law and comity concerns, which is currently absent in the Federal Circuit's approach to these issues. The method presented in the Article is a step-by-step process that provides courts with a structured methodology to address and weigh these difficult questions.
Author: Barry L. Grossman
Publisher: BNA Books (Bureau of National Affairs)
ISBN: 9781570188862
Category : Patent laws and legislation
Languages : en
Pages : 0
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Book Description
"Section of Intellectual Property Law, American Bar Association."
Author: Wolrad Prinz zu Waldeck und Pyrmont
Publisher: Springer Science & Business Media
ISBN: 3540887431
Category : Law
Languages : en
Pages : 898
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Book Description
In the last two decades, accelerating technological progress, increasing economic globalization and the proliferation of international agreements have created new challenges for intellectual property law. In this collection of articles in honor of Professor Joseph Straus, more than 60 scholars and practitioners from the Americas, Asia and Europe provide legal, economic and policy perspectives on these challenges, with a particular focus on the challenges facing the modern patent system. Among the many topics addressed are the rapid development of specific technical fields such as biotechnology, the relationship of exclusive rights and competition, and the application of territorially limited IP laws in cross-border scenarios.
Author:
Publisher:
ISBN:
Category :
Languages : en
Pages : 102
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Book Description
Author: Petr Szczepanik
Publisher: Springer Nature
ISBN: 3030448509
Category : Business & Economics
Languages : en
Pages : 303
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Book Description
This is an open access book. Media industry research and EU policymaking are predominantly tailored to large (and, in the latter case, Western) European markets. This open access book addresses the specific qualities of smaller media markets, highlighting their vulnerability to global digital competition and outlining survival strategies for them. New online distribution models and new trends in the consumption of audiovisual content are limited by, and pose new challenges for, existing audiovisual business models and their legal framework in the EU. The European Commission’s Digital Single Market (DSM) strategy, which was intended e.g. to remove obstacles to the cross-border distribution of audiovisual content, has triggered a heated debate on the transformation of the existing ecosystem for European screen industries. While most current discussions focus on the United States, Western Europe, and the multinational giants, this book approaches these industry trends and policy questions from the perspective of relatively small and peripheral (in terms of their population, language, cross-border cultural flows, and financial and/or symbolic capital) media markets.
