patents

• Ghosh, Shubha , Patents and the Regulatory State: Rethinking the Patent Bargain Metaphor after Eldred (August 9, 2004). Available at SSRN: http://ssrn.com/abstract=574141 or doi:10.2139/ssrn.574141

• Mueller, Nicole Sigrid, Should Research Tools Be Patentable? Troubles & Chances of Patenting Research Tools in Biotechnology and Nanotechnology (August 31, 2008). Available at SSRN: http://ssrn.com/abstract=1265731

• Mark A. Lemley, Ex Ante versus Ex Post Justifica tions for Intellectual Property, 71 U. CHIC. L. REV. 129, 149 (2004).

• Dan L. Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 VA. L. REV. 1576, 1648-1652 (2004).

• Jay P. Kesan & Mark Banik, Patents as Incomplete Contracts: Aligning Incentives for R&d Investment with Incentives to Disclose Prior Art, 2 WASH. U. J. L. & POL'Y 23 (2000).

• Anita L. Allen, Social Contract Theory in American Case Law, 51. FLA. L. REV. 1, 33-35 (1999).

• Murray, Fiona. Stern, Scott. June 2005. Do Formal Intellectual Property Rights Hinder the Free Flow of Scientific Knowledge? An Empirical Test of the Anti-Commons Hypothesis. Prepared for NBER Academic Science and Entrepreneurship Conference. Working Paper No. 11465. http://imio.haas.berkeley.edu/WilliamsonSeminar/stern111705.pdf

So what I've started doing is collecting the resources I've been using in Google books into my library. At the moment it only includes the Carpmael Law Reports - but these have reports of some hard to find cases:

http://books.google.com/books?uid=1933395611543063473

The only thing that is missing (in my humble opinion) are the early volumes of the Reports of Patent Case (RPC). C'mon Google (or someone else - get it on!

that it exemplified "a progressive tendency to forget all of the belief except the formularies, or to give it a dull and torpid assent, as if accepting it on trust dispensed with the necessity of realising it in consciousness, or testing it by personal experience".

It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is “the province and duty of the judicial department to say what the law is.” Marbury v. Madison,1 Cranch 137, 177 (1803). Congress has performed its constitutional role in defining patentable subject matter in §101; we perform ours in construing the language Congress has employed. In so doing, our obligation is to take statutes as we find them, guided, if ambiguity appears, by the legislative history and statutory purpose. Here, we perceive no ambiguity. The subject matter provisions of the patent law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting “the Progress of Science and the useful Arts” with all that means for the social and economic benefits envisioned by Jefferson. Broad general language is not necessarily ambiguous when congressional objectives require broad terms.

It is argued that this Court should weigh these potential hazards in considering whether respondent’s invention is <447 U.S. 317> patentable subject matter under §101. We disagree. The grant or denial of patents on microorganisms is not likely to put an end to genetic research or to its attendant risks. The large amount of research that has already occurred when no researcher had sure knowledge that patent protection would be available suggests that legislative or judicial fiat as to patentability will not deter the scientific mind from probing into the unknown any more than Canute could command the tides. Whether respondent’s claims are patentable may determine whether research efforts are accelerated by the hope of reward or slowed by want of incentives, but that is all. What is more important is that we are without competence to entertain these arguments – either to brush them aside as fantasies generated by fear of the unknown, or to act on them. The choice we are urged to make is a matter of high policy for resolution within the legislative process after the kind of investigation, examination, and study that legislative bodies can provide and courts cannot. That process involves the balancing of competing values and interests, which in our democratic system is the business of elected representatives. Whatever their validity, the contentions now pressed on us should be addressed to the political branches of the government, the Congress and the Executive, and not to the courts.

Despite no longer making any product or service itself, epicRealm is asserting the patents against those that provide information and services to the public over the internet, a group which includes many private citizens, public service organizations and even the U.S. Patent and Trademark Office itself.  EpicRealm's assertion of the patents has included the filing of infringement lawsuits against more than a dozen mere end users of allegedly infringing web site systems.  PUBPAT challenged the patents because epicRealm's aggressive assertion of them is causing substantial public harm by threatening the way in which much of the most useful aspects of the Web are provided to the public.

Copies of the Requests for Reexamination filed by PUBPAT against the two patents epicRealm is widely asserting dynamic websites can be found at PUBPAT > EpicRealm Dynamic Website Patents.

"interpreting the Constitution based on a literal and narrow definition of the language without reference to the differences in conditions when the Constitution was written and modern conditions"

1. textualism - grounding all interpretations in the text of the law/legislation
2. literalism - literal rather than purposive interpretation
3. originalism - looking at the original intention or original meaning of the framers
4. a presumption of constitutionality (legality)
   

1. Non-abstention - deciding cases whereas passive judges abstain
2. Exercise of the power of judicial review
3. Incorrect exercise of he power of judicial review

This post has had two goals. The first is to convince you that "strict construction" and "judicial activism" are simply not very useful as theory terms for academic constitutional lawyers. The second is to illustrate the importance of clear explication of constitutional concepts. Constitutional theory is a value-laden activity. Debates about positions in constitutional theory are frequently extensions of debates in moral and political theory generally. For that reason, it is very important for constitutional theorists to be very careful about their use of language.

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• http://wiki.ffii.org/NFAdvocacyEn: Talks about whether 'natural forces' are a good way to go for the patentable subject matter approach
• FFII press release on the 'controllable forces of nature' approach suggested by Rocard
• Another article on the Rocard report, detailing other responses to the issue
• Here is a list of the controllable forces of nature
• The amended swpat directive featuring the cfn approach
• Article 52 of the EPC
• The Dispositionsprogramm case from the German Federal Patent Court (great text on mental process stuff)
  

Article 6
The Scope of the Protection

(1) [Acts Requiring the Authorization of the Holder of the Right]

(a) Any Contracting Party shall consider unlawful the following acts if performed without the authorization of the holder of the right:

(i) the act of reproducing, whether by incorporation in an integrated circuit or otherwise, a protected layout-design (topography) in its entirety or any part thereof, except the act of reproducing any part that does not comply with the requirement of originality referred to in Article 3(2),

(ii) the act of importing, selling or otherwise distributing for commercial purposes a protected layout-design (topography) or an integrated circuit in which a protected layout-design (topography) is incorporated.

(b) Any Contracting Party shall be free to consider unlawful also acts other than those specified in subparagraph (a) if performed without the authorization of the holder of the right.

(2) [Acts Not Requiring the Authorization of the Holder of the Right]

(a) Notwithstanding paragraph (1), no Contracting Party shall consider unlawful the performance, without the authorization of the holder of the right, of the act of reproduction referred to in paragraph (1)(a)(i) where that act is performed by a third party for private purposes or for the sole purpose of evaluation, analysis, research or teaching.

(b) Where the third party referred to in subparagraph (a), on the basis of evaluation or analysis of the protected layout-design (topography) (“the first layout-design (topography)”), creates a layout-design (topography) complying with the requirement of originality referred to in Article 3(2) (“the second layout-design (topography)”), that third party may incorporate the second layout-design (topography) in an integrated circuit or perform any of the acts referred to in paragraph (1) in respect of the second layout-design (topography) without being regarded as infringing the rights of the holder of the right in the first layout-design (topography).

(c) The holder of the right may not exercise his right in respect of an identical original layout-design (topography) that was independently created by a third party.

(3) [Measures Concerning Use Without the Consent of the Holder of the Right]

(a) Notwithstanding paragraph (1), any Contracting Party may, in its legislation, provide for the possibility of its executive or judicial authority granting a non-exclusive license, in circumstances that are not ordinary, for the performance of any of the acts referred to in paragraph (1) by a third party without the authorization of the holder of the right (“non-voluntary license”), after unsuccessful efforts, made by the said third party in line with normal commercial practices, to obtain such authorization, where the granting of the non-voluntary license is found, by the granting authority, to be necessary to safeguard a national purpose deemed to be vital by that authority; the non-voluntary license shall be available for exploitation only in the territory of that country and shall be subject to the payment of an equitable remuneration by the third party to the holder of the right.

(b) The provisions of this Treaty shall not affect the freedom of any Contracting Party to apply measures, including the granting, after a formal proceeding by its executive or judicial authority, of a non-voluntary license, in application of its laws in order to secure free competition and to prevent abuses by the holder of the right.

(c) The granting of any non-voluntary license referred to in subparagraph (a) or subparagraph (b) shall be subject to judicial review. Any non-voluntary license referred to in subparagraph (a) shall be revoked when the conditions referred to in that subparagraph cease to exist.

(4) [Sale and Distribution of Infringing Integrated Circuits Acquired Innocently] Notwithstanding paragraph (1)(a)(ii), no Contracting Party shall be obliged to consider unlawful the performance of any of the acts referred to in that paragraph in respect of an integrated circuit incorporating an unlawfully reproduced layout-design (topography) where the person performing or ordering such acts did not know and had no reasonable ground to know, when acquiring the said integrated circuit, that it incorporates an unlawfully reproduced layout-design (topography).

(5) [Exhaustion of Rights] Notwithstanding paragraph (1)(a)(ii), any Contracting Party may consider lawful the performance, without the authorization of the holder of the right, of any of the acts referred to in that paragraph where the act is performed in respect of a protected layout-design (topography), or in respect of an integrated circuit in which such a layout-design (topography) is incorporated, that has been put on the market by, or with the consent of, the holder of the right.

Article 7
Exploitation; Registration, Disclosure

(1) [Faculty to Require Exploitation] Any Contracting Party shall be free not to protect a layout-design (topography) until it has been ordinarily commercially exploited, separately or as incorporated in an integrated circuit, somewhere in the world.

(2) [Faculty to Require Registration; Disclosure]

(a) Any Contracting Party shall be free not to protect a layout-design (topography) until the layout-design (topography) has been the subject of an application for registration, filed in due form with the competent public authority, or of a registration with that authority; it may be required that the application be accompanied by the filing of a copy or drawing of the layout-design (topography) and, where the integrated circuit has been commercially exploited, of a sample of that integrated circuit, along with information defining the electronic function which the integrated circuit is intended to perform; however, the applicant may exclude such parts of the copy or drawing that relate to the manner of manufacture of the integrated circuit, provided that the parts submitted are sufficient to allow the identification of the layout-design (topography).

(b) Where the filing of an application for registration according to subparagraph (a) is required, the Contracting Party may require that such filing be effected within a certain period of time from the date on which the holder of the right first exploits ordinarily commercially anywhere in the world the layout-design (topography) of an integrated circuit; such period shall not be less than two years counted from the said date.

(c) Registration under subparagraph (a) may be subject to the payment of a fee.

Article 8
The Duration of the Protection

Protection shall last at least eight years.