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patent law

The panel is packed with big names and many of them offer suggestions with a law or regulation angle, including Philip K. Howard (“Radically Simplify Law”), Derek Khanna (rethink patent and copyright law; related, Ramesh Ponnuru), Morris Kleiner (reform occupational licensure; related, Steven Teles), Arnold Kling (“Sidestep the FCC and the FDA”), Robert Litan (admit more high-skill immigrants and reform employment of teachers; similarly on immigration, Alex Nowrasteh), Adam Thierer (emphasize “permissionless innovation”), and Peter Van Doren (relax zoning so to ease movement of workers to high-wage cities).

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  • “Our mangled patent system,” Cato podcast [with Eli Dourado of the Mercatus Center] Critique of federal circuit [Dourado at Cato Unbound]
  • Since SCOTUS’s June decision in Alice v. CLS Bank, many courts have struck down software patents as too-abstract [Timothy Lee, Vox]
  • Iqbal-Twombly principles as remedy for patent trollery? [Daniel Fisher]
  • ISP resists mass copyright enforcement enterprise’s demand for customer list [DSL Reports]
  • Win for Personal Audio in E.D. Tex.: “Jury finds CBS infringes podcasting patent, awards $1.3 million” [ArsTechnica]
  • “Premier League Uses Copyright To Pull Down YouTube Video Of Professor Advocating For Stronger Copyright For Premier League” [Mike Masnick, Techdirt]
  • A new leaf? “Silicon Valley’s Most Hated Patent Troll Stops Suing and Starts Making” [Business Week]
  • “Kanye West Sues Coinye Altcoin into Oblivion” [CoinDesk]
  • Not new, but new to me: animated riff on Hindu “Ramayana” saga winds up in public domain because of inability to clear copyright on songs of Jazz-Age vocalist Annette Hanshaw [Nina Paley, "Sita Sings the Blues"]
  • “Update: Supreme Court Issues Two More Patent Law Rulings” [WLF; Limelight and Nautilis]
  • On copyright, more litigious not always better: “The Authors Alliance vs. The Authors Guild” [Alex Tabarrok quoting Virginia Postrel]
  • “Thwarting ‘patent trolls': Not as easy as it sounds” [Michael Rosen, AEI] “Trolls and Trial Lawyers Should Curb Their Enthusiasm Over Patent Reform Timeout” [Cory Andrews, WLF]
  • “I realized that receiving a patent really just meant that you bought a lottery ticket to a lawsuit” – [Elon Musk, Tesla; Brad Greenburg, Concurring Opinions]
  • Ready for Hillary is latest political campaign to fire off takedown demand against satirical product [Paul Alan Levy]

Timothy Lee in Vox; see also.

More clarity, or even deeper confusion? The Supreme Court has agreed to revisit software patents in the case of Alice Corp. v. CLS International. “A system of property rights is flawed if no one can know what’s protected. That’s what happens when the government grants 20-year patents for vague software ideas in exchange for making the innovation public.” [Gordon Crovitz, WSJ, quoted at Marginal Revolution; Daniel Fisher, Forbes]

A chance for left-right policy alliance might have been missed here ["David Hume," Secular Right; Coyote]

I moderated a panel at Cato’s annual Constitution Day September 17 with Mark Moller of DePaul speaking on the Supreme Court’s class action jurisprudence last term, and David Olson of Boston College and Gregory Dolin of University of Baltimore speaking on the life-science patent cases. I also warned viewers (this part is at the beginning) to use only the Twitter hashtags #CatoCD2013 or #CatoCD13 to comment, because the hashtag #CatoCD without numbers is already in use as #CatOCD to post pictures of cats with Obsessive-Compulsive Disorder. If the embedded version doesn’t work, you can watch here.

It started with an insult-filled letter to a patent examiner that quickly made the rounds in the legal blogosphere (“Are you drunk? No, seriously … are you drinking scotch and whiskey with a side of crack cocaine while you ‘examine’ patent applications?”) In Round Two, the incensed attorney goes after patent-law blogger Dennis Crouch of Patently-O, who brought the letter to the web’s attention. [Above the Law]

IP and technology roundup

by Walter Olson on December 10, 2012

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A unanimous Supreme Court has struck down a patent over diagnostic methods in medicine, the latest in a series of controversies over the bounds of patentable subject matter. [Mayo v. Prometheus Labs; Marcia Coyle/NLJ, SCOTUSBlog, Timothy Lee/ArsTechnica] As I noted last fall, my Cato Institute colleagues Ilya Shapiro, Jim Harper and Timothy Lee filed an amicus brief on behalf of the side that prevailed yesterday, arguing against the spread of “a dangerous exception to traditional patent law… the Court should reject medical-diagnostic patents as impermissibly restricting the freedom of thought.”

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Bad enough to be an established software firm and get hit with lawsuits from competitors or patent trolls. But even companies at the early startup stage now face legal attack, and patent law (unlike copyright) assigns liability even if there has been no knowing act of imitation or appropriation, which complicates the task of defense. “Merely asking a patent lawyer to evaluate the case and advise a company on whether it was guilty of infringement could cost a firm tens of thousands of dollars. And a full-blown patent lawsuit could easily carry a price tag in the millions of dollars, with no guarantee of recovering attorney’s fees even if the defendant prevailed.” In practice, some firms like Microsoft whose portfolios amount to “patent thickets” can establish themselves as gatekeepers to the industry. [Timothy Lee, Slate]

And: “New Patent Regs May Inspire More Litigation, Not Less” [Daniel Fisher, Forbes]

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The new patent reform bill may end, or at least restrict, the odd practice of asserting patents on ways to reduce tax liability. [Legal Ethics Forum, earlier here, here, etc.]

My Cato Institute colleagues have filed an amicus brief arguing against the spread of “a dangerous exception to traditional patent law… the Court should reject medical-diagnostic patents as impermissibly restricting the freedom of thought.” [Mayo v. Prometheus Labs; Ilya Shapiro, Jim Harper and Timothy Lee, Cato]

Congress might provide a do-over for a drug firm that inadvertently missed filing for a patent extension by a day or two, and in so doing spare the prominent law firm WilmerHale a possible malpractice payout [Andrew Pollack, New York Times]

September 7 roundup

by Walter Olson on September 7, 2011

  • Truth through intimidation? U.K.: “Chronic fatigue syndrome researchers face death threats from militants” [Guardian] Nanotechnologists are target of Unabomber copycat [Chronicle of Higher Education]
  • Blogger (and frequent Overlawyered commenter) Amy Alkon criticizes intrusive TSA agent by name, agent threatens $500K libel suit [Mike Masnick/TechDirt, Mark Bennett]
  • NYT fans “pill mill” hysteria, heedless of the costs [Sullum]
  • Patent litigant “pursued baseless infringement allegations in bad faith and for an improper purpose.” More loser-pays, please [NLJ, PoL]
  • Great moments in link solicitation [Scott Greenfield] Quality bar at feminist lawprof blog may not be set terribly high [Popehat]
  • “Wow, this photo got over 475 views from being reposted on Overlawyered” [Erik Magraken]
  • “Popular Comic Strip Has Fun With Wacky Warnings” [Bob Dorigo Jones]

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August 10 roundup

by Walter Olson on August 10, 2011

  • Maine Supreme Court agrees that not having to show up in court might be reasonable accommodation for plaintiff claiming PTSD disability [Volokh]
  • Guess how much Richard Kreimer, the New Jersey homeless guy, has made in his many lawsuit settlements [Newark Star-Ledger, PoL]
  • Given the problems with business-method patents, you can see why banks would want to dodge them [Felix Salmon]
  • Contempt: “Calling the jailing of a person ‘civil’ doesn’t mean they put curtains on the cell windows.” [Greenfield]
  • “Class Counsel Request $90.8M In Fees In Black Farmers Case” [BLT]
  • Law school accreditation, recusal standards, international law among topics in new issue of Federalist Society’s ABA Watch;
  • Electricity-wise, EPA puts the squeeze on the juice [Andrew Grossman, Heritage; Weston Hicks, AgendaWise; Tatler]

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July 19 roundup

by Walter Olson on July 19, 2011

  • More on CPSC’s crib ban train wreck [Commissioner Anne Northup, more, earlier]
  • One man’s nightmare of false accusation [LA Times via PoL]
  • How many plaintiff’s-side flicks is HBO going to air this summer, anyway? ["Mann v. Ford," Abnormal Use]
  • Apple granted “incredibly broad patent” over screen gesture technology [Tabarrok]
  • Will Congress reverse this term’s much-attacked SCOTUS decisions? [Alison Frankel] Podcast on Wal-Mart v. Dukes with Brian Fitzpatrick [Fed Soc] “Wal-Mart ruling no knock-out blow for class actions” [Reuters] Contrary to some assertions, current law does strongly incentivize individual job-bias claims [Bader] More on case: Dan Bushell, and welcome Craig Newmark readers.
  • Mississippi stops proceedings in $322 million asbestos case to consider judge’s possible conflict [JCL, earlier here, here]
  • Nice coat, where’dja get it? [annals of incompetent crime, UK Daily Mail]

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The nutritional paste seems to be a really useful invention in getting international food assistance to the poor. Does that mean it’s okay to break its patent? [Alanna Sheikh, AidWatch]

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