Patent Law

Dear Law Review Editors: Please send me a note (dcrouch@patentlyo.com) to let me know about patent law focused articles that you publish in your journal so that I can highlight them on Patently-O.

Student Note Topics: Here are some suggestions for patent law focused law review topics for 2009-10 that I would like to see for my own edification. Please send me a note if you choose one of these.

• Injunctive Relief Pending Appeal: Proposing a clear jurisprudence for allowing stays of injunctive relief pending appeal in patent cases. See Microsoft v. i4i. Examine problems associated with the proposed stay-as-a-right found in earlier proposed patent legislation.
• Using Patents Applications (and Invention Rights) as Collateral: Following Sky Technologies v. SAP AG, does a patent application work as a security interest? (can a security interest be perfected and foreclosed upon for rights to inventions that are not yet the subject of a patent application). [See final paragraph of my Sky Tech discussion]
• Federal Circuit Timing: A statistical analysis of the timing of CAFC decisions (Including a comparison of the various judges and a discussion of how the various circuits reign-in slow judges).
• Patent Term Extensions: A statistical analysis of patent term extensions granted by the PTO. (http://www.patentlyo.com/patent/2008/07/patently-o-bi-5.html).
• International Patents: Cardiac Pacemaker (en Banc): Understanding the meaning of "component;" Here, I think that there should be special consideration for whether there is a need for a treaty arrangement to accommodate protection of inventions that easily operate cross-border.
• Inequitable Conduct: The impact of Exergen Corp. v. Wal-Mart Stores, CVS, and SAAT, ___ F.3d ___, 2009 U.S. App. LEXIS 17311 (Fed. Cir. 2009). This paper would include a discussion of how procedural changes may often have more impact than do changes in the underlying substantive law. It may also discuss the tradition of appellate courts in dictating procedure apart from substance.
• Inequitable Conduct allegations based on examiner interviews. See http://www.patentlyo.com/patent/2009/07/the-effectiveness-of-examiner-interviews.html.
• Tell the story of the Pod-Ners case: http://www.patentlyo.com/patent/2009/07/mexican-yellow-bean-patent-finally-cooked.html.
• Explaining the dying breed of Jepson claims: http://www.patentlyo.com/patent/2009/06/bits-and-bytes.html.
• Obviousness as a Matter of Law: A recent petition to the Supreme Court challenged the procedure of allowing a lay jury (as opposed to a judge) to judge the ultimate question of whether a patent is obvious. See Medela AG v. Kinetic Concepts, Inc. (on petition for a writ of certiorari 2009). Several important papers could stem from this issue. Notably, there is a need for a more academic analysis of the historic circuit split (rather than the advocacy seen in the brief). One paper could work to resolve the conflict with the pre-federal circuit decisions. Another paper could focus on the best procedure for resolving mixed questions of fact and law.
• Declaratory Judgment Jurisdiction: In 2007, the Supreme Court decided the Medimmune case in a way that makes it easier for potential patent infringers to file declaratory judgment lawsuits of non-infringement or invalidity. It would be interesting to see whether this has had an impact on patent filings.