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Patent opinions and evaluations are used in virtually all endeavors involving United States patents, including litigation, prosecution, licensing, product design, product launch, evaluation for acquisition or disposition of intellectual property, bankruptcy, and U.S. securities issues. In U.S. Patent Opinions and Evaluations, David Fox provides expert, up-to-date, practical advice and guidance on the four principle issues of patent opinions and evaluations: claim construction and claim scope, infringement, validity, and enforceability. This second edition features a first-of-its-kind discussion of opinions of non-willful infringement based on the Seagate two-prong test for objective willfulness and an evaluation of the test, including analyses of Federal Circuit decisions applying the test. The case law, including Bilski and developments in indirect and joint infringement, has been completely updated, along with effects on willfulness, including updates related to the America Invents Act of 2011. Finally, the book has been restructured for easier use by attorneys preparing opinions and for those relying on these opinions. David L. Fox masterfully addresses the needs of the practicing attorney preparing a patent opinion, combining discussions and the framework of the current law with specific practice tips. He also provides clear, straight-forward guidance for non-patent professionals on the principles of U.S. patent law and the fundamentals of U.S. patent opinions and evaluations, allowing them to better understand and rely on them. U.S. Patent Opinions and Evaluations covers everything from general issues--including overviews of opinions, rules for preparing competent opinions, and waiver to nuts-and-bolts issues such as claim construction and claim scope, infringement, validity, and enforceability. The "Practice Tips" and the appendices provide further practical guidance by setting forth exemplary outlines of opinions and evaluations. A subject index enables quick and easy use of the book as a reference for specific topics.
The U.S. patent system is in an accelerating race with human ingenuity and investments in innovation. In many respects the system has responded with admirable flexibility, but the strain of continual technological change and the greater importance ascribed to patents in a knowledge economy are exposing weaknesses including questionable patent quality, rising transaction costs, impediments to the dissemination of information through patents, and international inconsistencies. A panel including a mix of legal expertise, economists, technologists, and university and corporate officials recommends significant changes in the way the patent system operates. A Patent System for the 21st Century urges creation of a mechanism for post-grant challenges to newly issued patents, reinvigoration of the non-obviousness standard to quality for a patent, strengthening of the U.S. Patent and Trademark Office, simplified and less costly litigation, harmonization of the U.S., European, and Japanese examination process, and protection of some research from patent infringement liability.
"Compiled from Official gazette. Beginning with 1876, the volumes have included also decisions of United States courts, decisions of Secretary of Interior, opinions of Attorney-General, and important decisions of state courts in relation to patents, trade-marks, etc. 1869-94, not in Congressional set." Checklist of U. S. public documents, 1789-1909, p. 530.
The book was created to discuss why the specialist patent courts fail to abide by the various federal rules, and precisely how the Supreme Court has sought to correct the “notorious difference” between the patent office assessment of patentability and the patent court assessment of patentability of an invention first identified in the 1966 Graham case. I have been close to that issue for nearly half a century, and the book is my analysis of the problem.The book explores many instances where the lack of judicial experience with rules of procedure, of evidence, and of law lead to questionable decisions. The judicial experience of trying cases as an advocate is also lacking in many of the patent court judges. I certainly did not have that experience when I was a law clerk just out of law school, but I have had experience in the nearly half-century since then. It is clear from the 33 cases where the Supreme Court has reviewed patent court decisions that the Supreme Court has a different perspective on patents from that of the specialist patent courts.Most writings about patents come from the perspective of (1) the Patent and Trademark Office; (2) the Court of Appeals for the Federal Circuit; (3) patent applicants; (4) patent owners; or (5) advocates of a political position respecting patents.These perspectives are not helpful in determining what the law is regarding patents. The judicial department of government has the duty “to say what the law is” (Marbury v. Madison, 5 U.S. 137, 178 (1803)). The political departments of government (executive and legislative) have responsibilities in administering the patent law, but not in saying what the law is. The Supreme Court is head of the judicial department, and it is the perspective of the Supreme Court, not the Federal Circuit, that ultimately controls what the law is.The Supreme Court has reviewed patent decisions by the two specialist patent courts of appeal (the Court of Customs and Patent Appeals and the Federal Circuit) a total of 33 times since 1966. All 33 of these cases are studied in this book. The book shows that the decision of the patent court has been overturned in two thirds of the cases reviewed. Even when the patent court decision is affirmed, the reasoning is often criticized by the Court. The book approaches the development of patent law from the perspective of the Supreme Court, and shows that the writings from the usual perspectives are not accurate assessments of what the law is. No other writing views patent law from this perspective. In a few cases, the book criticizes the Supreme Court decision on appeal as deviating from earlier Supreme Court precedents. In those cases, the reasons for the assertion that the Court erred are given, recognizing, as it must, that the perspective of the Supreme Court is final, not because it is infallible; it is infallible only because it is final (Jackson, J., Brown v. Allen, 344 U.S. 443 (1953)).