• Selected
• Entire List

Abstract:
Throughout the past two centuries, the U.S. patent system has defined the scope of (potentially) patentable processes by proscribing patents on fundamental principles (including abstract ideas, laws of nature, and natural phenomena). Unfortunately, such a description of patentable subject matter led to ambiguity and unpredictability in the application of the patent laws. In 2008, the Federal Circuit addressed this uncertainty by promulgating a new standard to describe the ambit of patentable processes: a process may constitute patentable subject matter if (1) it utilizes a particular machine or apparatus, or (2) it transforms an object into a different state or thing.

This article describes how the Federal Circuit's new standard furthers the underlying policy goal of all patent laws: the incentivization of innovation. Specifically, this paper argues that this new rule presents a simple and easy to apply standard which will increase the predictability of the patent laws. In the presence of such predictability, prospective inventors and investors are more likely to engage in research and development, thus leading to increased inventive activity.

Scope of Patentable Processes, Patentable Subject Matter, Bilski, Patent, State Street Bank, Machine or Transformation Test

Abstract:
This article evaluates the bankruptcy court's ill-defined obligation to consider public policy issues during the confirmation of Chapter 11 plans of reorganization. This consideration is mandated by 11 U.S.C. 1123 and 1129(a)(5), which provide that the management of a reorganized entity must be consistent with public policy. At present, proper application of these provisions is poorly described in case law. Accordingly, this article address two primary issues: (1) what public policy concerns should be considered when confirming a plan of reorganization; and (2) what procedure should a bankruptcy court adopt when addressing such issues? After an initial discussion of potential public policy topics of interest, this article proposes the implementation of a burden shifting system to be utilized in applying 1123 and 1129(a)(5). The proposed framework benefits the bankruptcy system by: (1) creating a methodology to apply the public policy provisions of the Bankruptcy Code; and (2) reconciling apparent contradictions between the Bankruptcy Code and the current operation of bankruptcy courts.

bankruptcy, public policy, 1123, 1129, chapter 11, confirmation, reorganization, management of a reorganized entity

Abstract:
Recently, cases have questioned the antitrust liabilities of patentees who gain a competitive advantage in a second market due to their discriminatory selling practices in a patent-monopolized market, a process known as monopoly leveraging. Courts have accepted monopoly leveraging as a manner to break antitrust laws, but exactly what must be proven in a case where the monopoly is legally obtained through a patent is still subject to question. A circuit split exists as to what must be established for a valid Section 2 Sherman Act claim under a monopoly leveraging theory.

In Image Technical Serices v. Eastman Kodak, the Ninth Circuit held that a monopoly leveraging theory Sherman Act claim was actionable only if the plaintiff could rebut a presumption that the defendant had selectively withheld sales of patented goods for a valid business purpose (a question of the defendant's subjective intent). This article argues that case law and public policy both favor the Ninth Circuit's subjective intent test. Specifically, the Ninth Circuit's rule is consistent with prior antitrust case law because there is a significant history in antitrust jurisprudence of the consideration of an actor's subjective intent. Moreover, the alternative rules are improper because they render all prior case law on monopoly leveraging applied to patent holders to be a mere tautology.

patent, antitrust, monopoly leveraging, Image Technical Serices v. Eastman Kodak, In re Independent Service Organizations Antitrust Litigation, discriminatory selling