• Mandamus Relief Denied: Federal Circuit Avoids Clarifying TC Heartland in In re Google LLC

    The Federal Circuit recently elected not to decide en banc “whether servers are a regular and established place of business, such that venue is proper under 35 U.S.C. § 1400(b). In re: Google LLC, No. 2018-152 (Fed. Cir. Feb. 5, 2019) (Before Prost, Chief Judge, Newman, Lourie, Dyk, Moore, O’Malley, Reyna, Wallach, Taranto, Chen, Hughes, and Stoll, Circuit Judges) (Dissent by Reyna, Circuit Judge, joined by Newman and Lourie, Circuit Judges). SEVEN Networks, LLC’s (SEVEN) patent infringement…

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  • Heavily Taxing Billionaires to Promote Innovation

    An important issue confronting the world concerns the high concentration of wealth and redistribution of that wealth through the tax system. Part of the problem is what to do with the wealth gained from additional taxation of billionaires (and what is a politically defensible use of that additional revenue). Democratic presidential candidates are starting to create a “dream list” of things to do with billionaires’ money.  Well, why not use that money to invest in research and development which may lead to more jobs, innovation (even life saving innovation), and additional tax revenue.  
    Professor Michael Simkovic from University of Southern California Gould School of Law takes on general claims that taxing billionaires may lead to less innovation in a short five page article titled, “Taxes, Spending and Innovation.”  Professor Simkovic points to studies concerning patents and Nobel Prize winners.  Professor Simkovic states:

    Public policy can be used to promote innovation by raising taxes and extensively funding high quality science, math, and engineering education, or by encouraging immigration of people with those skills.

    There has been a general decline in the amount of federal funding in terms of real dollars for some time for the National Institutes of Health.  Well, billionaires give to universities and other charities, right?  We don’t need to heavily tax them as they choose to give their wealth to charitable organizations that innovate.  Professor Simkovic notes that voluntary gifts to charity, including to universities, is relatively small at “2% of GDP”—for gifts from all donors.  He concludes we should look to peer-reviewed empirical work to test claims and that, “Claims that we can drive more innovation and growth through a higher concentration of resources in the hands of a small number of billionaires—while providing fewer resources to middle and upper middle–‐class knowledge workers—are not empirically supported.”  [Hat Tip to Professor Paul Caron’s Tax Prof Blog]. 

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  • Who was the oldest inventor to receive a U.S. patent?

    In 2014, the Los Angeles Times discussed US Patent 8606170 to Si Ramo (the R in TRW), then 100 years old.

    On June 12, 2018, US Patent 8606170 issued to Charles Bliss, with Chip Reid of CBS noting of Bliss:

    Last June, the chemical engineer became what’s believed to be the oldest American ever awarded a patent. [at age 101]

    See also



    https://patents.google.com/patent/US8110395, Photobioreactor systems and methods for treating CO2-enriched gas and producing biomass


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  • EU Reaches Copyright Reform Agreement But Opposition Remains

    Have European Union legislators finally agreed on the substance of a new Copyright Directive? That was the claim made in a statement by the European Commission on February 13. The Commission announced that it, the EU Council (which represents member state governments) and the European Parliament (comprising 751 elected members) had reached a “breakthrough” on controversial proposals that have been hotly debated for the past six years. The Commission explained that the three bodies had found a…

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  • Cotter, Hovenkamp, and Siebrasse on Patent Holdup

    Erik Hovenkamp, Norman Siebrasse, and I have posted a paper on ssrn titled Demystifying Patent Holdup, 76 Washington & Lee Law Review __ (forthcoming 2019).  Here is a link to the paper, and here is the abstract: 
    Patent holdup can arise when circumstances enable a patent owner to extract a larger royalty ex post than it could have obtained in an arm’s length transaction ex ante. While the concept of patent holdup is familiar to scholars and practitioners—particularly in the context of standard-essential patent (SEP) disputes—the economic details are frequently misunderstood. For example, the popular assumption that switching costs (those required to switch from the infringing technology to an alternative) necessarily contribute to holdup is false in general, and will tend to overstate the potential for extracting excessive royalties. On the other hand, some commentaries mistakenly presume that large fixed costs are an essential ingredient of patent holdup, which understates the scope of the problem. 
    In this article, we clarify and distinguish the most basic economic factors that contribute to patent holdup. This casts light on various points of confusion arising in many commentaries on the subject. Path dependence—which can act to inflate the value of a technology simply because it was adopted first—is a useful concept for understanding the problem. In particular, patent holdup can be viewed as opportunistic exploitation of path dependence effects serving to inflate the value of a patented technology (relative to the alternatives) after it is adopted. This clarifies that factors contributing to holdup are not static, but rather consist in changes in economic circumstances over time. By breaking down the problem into its most basic parts, our analysis provides a useful blueprint for applying patent holdup theory in complex cases.

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  • Return Mail v. USPS Oral Arguments: Both Sides Struggle in Robust Questioning at Supreme Court

    On Tuesday, February 19, the U.S. Supreme Court heard oral arguments in Return Mail Inc. v. United States Postal Service, a case that asks the nation’s highest court to determine whether the federal government constitutes a “person” for the purposes of instituting review proceedings at the Patent Trial and Appeal Board (PTAB) under the Leahy-Smith America Invents Act (AIA). Although the Supreme Court Justices appeared to be dissatisfied with arguments from counsel for either side, they arguably…

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