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Viewpoint: Patent Disclosure Policy and Willful Infringement Doctrine
It seems fair to say that a major goal of the patent system ' to be a channel of technological disclosure ' remains largely unfulfilled. Scientists and engineers seldom, if ever, consult patents in the course of their work. It is the technical and scientific journals that are consulted by practitioners of a particular field, and such journal articles ' while almost always containing numerous references to other such journal articles ' seldom make reference to a patent. This article considers whether the willful infringement doctrine (ie, the punitive enhancement of damages for willful infringement) is a significant cause of the relative unimportance of patent disclosures to the process of technological innovation. This article also asks whether two fundamental objectives of the patent system, disclosure of patents and protection of the patent holder, might not be better served by elimination of the doctrine. While it would seem quite reasonable to question the further perpetuation of the willful infringement doctrine, given its potential chilling effect on those seeking to consult patent disclosures, this question is rarely asked, if at all, presumably due to the doctrine's antiquity.
Patent infringement damages, generally, are addressed by 35 U.S.C. '284, which, in addition to providing compensation to the patentee, allows the courts to enhance damages by up to three times the initial compensatory amount. Section 284, which has existed in essentially its present form since 1952, is silent on the conditions under which such enhancement power is to be utilized. Over the last two decades, however, the Federal Circuit has established limits on the utilization of the enhancement provision, such that it may only be used when willful infringement has been found.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Protecting Innovation in the Cyber World from Patent Trolls
With trillions of dollars to keep watch over, the last thing we need is the distraction of costly litigation brought on by patent assertion entities (PAEs or "patent trolls"), companies that don't make any products but instead seek royalties by asserting their patents against those who do make products.