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Law and Fact in Patent Litigation: Form versus Function

Thomas G. Field Jr.

University of New Hampshire School of Law (formerly Franklin Pierce Law Center)

September 19, 2008

IDEA, Vol. 27, No. 153, 1987

This comment, based on one published in 27 IDEA 153 (1987), addresses a topic of continuing interest. Featuring Bose Corp v. Consumers Union, 466 U.S. 485 (1984) and Dennison Mfg. v. Panduit Corp., 475 U.S. 809 (1986), it urges reconsideration of the standards of review applied in patent litigation. In particular it argues that the characterization of criteria for patent validity as posing issues of fact or law is inconsistent and flies in the face of process traditions.

Apparently to justify more intense review than otherwise appropriate, the Federal Circuit singles out nonobviousness determinations. The paper doesn't quarrel with the intensity of review, but argues that denominating what seem to be issues of fact as ones of law isn't helpful. It therefore argues for application of a doctrine that allows expanded review (function) without unduly confusing terminology (form). The paper also argues for further analysis of all factors affecting patent validity - some treated as ordinary issues of fact.

Number of Pages in PDF File: 8

Keywords: law-fact dichotomy, standards of review, patent validity, constitutional fact

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Date posted: September 21, 2008 ; Last revised: May 26, 2014

Suggested Citation

Field, Thomas G., Law and Fact in Patent Litigation: Form versus Function (September 19, 2008). IDEA, Vol. 27, No. 153, 1987. Available at SSRN: http://ssrn.com/abstract=1270555

Contact Information

Thomas G. Field Jr. (Contact Author)
University of New Hampshire School of Law ( email )
Two White Street
Concord, NH 03301
United States
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