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Stephen Schweizer
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It might be helpful if legislators specified the relevant interpretive community when they drafted a statute. I know of one example where this has been done: the patent code refers to a "person having ordinary skill in the art," and the legal fiction is used for many purposes in patent law.
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I enjoyed this summary of the big-picture issues in the Samsung v. Apple case. As Professor Picker writes, is useful to separate concerns about patent-trolls from this case, because neither party is a patent-troll. He is also correct that it is hard to evaluate the jury's decision without considering the voluminous evidence that was presented by the jury. (It would also probably help to read the four design patents at issue, their prosecution history, the _Markman_ opinion, etc. -- a lot of work to satisfy idle curiosity). I thought that the feature of the patent system that had gotten the most flack in connection with this case was the role of juries, not NPE's or over-patenting or design patents. Patent jury trials are rare, but the stakes in patent litigation are set by the expectation that a patent trial could go before a jury. Uniformity is one of the leitmotifs that runs through patent law. I wonder if the use of juries conflicts with this goal, empirically? I'm certain it's easy to find papers suggesting dispensing with jurors entirely, or changing the juror selection system so you get educated jurors. As a patent naif, I was also intrigued by the clause referring to "the virtues of separating invention, production and enforcement . . . ." Sounds virtuous enough to me, with that caveat that I think it's helpful to separate NPE's that have patents that should fail for indefiniteness, obviousness, or something like that, and NPE's who hold useful tech but don't build it themselves. Logically, it should be the former group that is reviled, not the latter group.
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Stephen Schweizer is now following UChicagoLaw
Mar 28, 2012
Stephen Schweizer is now following The Typepad Team
Mar 27, 2012