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The United States patent system has become sand rather than lubricant in the wheels of American progress. Such is the premise behind this provocative and timely book by two of the nation's leading experts on patents and economic innovation.

In pharmaceutical patent cases, the drug label is often the primary piece of evidence regarding whether generic drug companies induce doctors to infringe brand drug companies' patents. But a series of recent decisions from the U.S. Court of Appeals for the Federal Circuit has taken this focus on the label too far. Rather than assessing what doctors actually did (or would do) based on a drug label, the Federal Circuit has treated drug labels as if they were patent claims, assessing whether their text merely \"contains\" a patented method of use. This has yielded a new, problematic doctrinal turn--what we call \"infringement by label\"--that threatens generics' ability to enter the market, even when their products would not actually cause doctors to practice any of the brands' patents. Infringement by label spotlights the Federal Circuit's misunderstanding of drug labeling at the U.S. Food and Drug Administration (FDA) and a lack of clarity in the court's case law about the nature of induced patent infringement, the theory of infringement most common in label-focused drug patent litigation. By identifying these deficiencies, this Article aims to return drug patent litigation to its factual and doctrinal moorings. At the same time, we show how the Federal Circuit's infringement-by-label theory underscores several broader, unresolved questions in patent law--namely, whether the interpretation of drug labels is an issue of law or fact; whether the objects of induced infringement are statements made by the defendant or how such statements are perceived by a direct infringer; and how to construct a hypothetical direct infringer to prove inducement. Answering these questions would improve pharmaceutical patent litigation and clarify how generics can enter the market while being faithful to the FDA's drug labeling regime.

To prevent the over-extension of punitive damages in private law, as has occurred in some common law jurisdictions, China requires the presence of “serious circumstances” as a prerequisite for applying punitive damages in intellectual property infringement cases. However, this requirement still lacks a clear theoretical framework and concrete identification elements. This study illustrates China’s approach by analyzing judicial decisions, and reveals: (1) sixteen elements used by judges to assess the seriousness of intellectual property infringement, which can be consolidated into three key categories: subjective malevolence, degree of conduct, and resulting damage; (2) differences in judicial emphasis across types of intellectual property, with copyright cases focusing on subjective malevolence and industrial property cases emphasizing scale and duration of infringement; (3)cases involving significant social harm are more likely to result in higher punitive damages multipliers; and(4) judges take into account not only the severity of infringement but also the goals and functions of punitive damages.

Contrary to the idea that industry is responsible for almost all patent litigation, it appears that for stem cell patent litigation, universities have already assumed the role of plaintiff. This supports the Federal Circuit's finding in Madey that universities have their own business objectives and therefore should not be a protected class that benefits from a research exemption when the research furthers their business interests.

Patent trolls are increasingly blamed for the growing costs of patent litigation and seemingly excessive damages awards and patent royalties. There is much to support these allegations. Trolls now account for a majority of all patent assertions, win both larger judgments and larger settlements than do firms that practice patents, and do so despite complaints and some evidence that they assert weak patents. Nonetheless, we think the focus on trolls obscures more complex and fundamental problems with the patent system. There are at least three different troll business models that have varying effects on the patent system. Based on our review of the economics of patent assertions, we find that patent assertions by practicing entities can create problems that, while sometimes different from, are at least as costly as those created by trolls. Many of the problems associated with trolls are in fact problems that stem from the disaggregation of complementary patents into multiple hands. Our review takes us beyond labels and the search for \"bad actors\" and leads us to focus instead on aspects of the patent system that give rise to the problems, and on changes in patent law that will ameliorate them. These changes include updating standards for issuing patents and patent remedies, implementing measures to reduce abusive patent litigation, and heightened legal scrutiny of disaggregation of patent portfolios. We conclude that trolls are a symptom of larger flaws in the patent system and that those who have focused on trolls have, in effect, been missing the forest for the trolls.

'Job hopping' by engineers and scientists is widely heralded as an important channel for knowledge spillovers within industries. Far less is known, however, about the actions firms take to reduce the outward flow of knowledge through markets for skilled labor. This study investigates the efficacy of a lever that has received little research attention: corporate reputations for toughness in patent enforcement. Drawing on unique data on enforcement activity, intra-industry inventor mobility, and patent citations in the U.S. semiconductor industry, we find that a firm's litigiousness significantly reduces spillovers otherwise anticipated from departures of employee inventors, particularly when the hiring organizations are entrepreneurial ventures. Surprisingly, the deterrent effects of patent enforcement are similar in magnitude for firms located in California, a state characterized by open norms for knowledge trading, and firms headquartered in other U.S. states. The study sheds new light on the strategic actions firms use to prevent rivals from capturing value from their investments in human capital and research and development.

In this article we suggest three novel amendments to U.S. patent law to increase efficiency and decrease costs. We first contend that while the assertion of invalid patents is detrimental because of anticompetitive effects, such competition concerns should place no duty upon applicants to disclose prior art at the outset. Additionally, we argue that to avoid resource waste, the USPTO should outsource prior art searches for certain applications, as in Japan. Finally, we propose a system where patentees have the option to elect to a patent box regime that reduces their taxes on patent profits substantially (e.g., from 21 % to 5%), but requires patentees to pay the USPTO a modest percentage (e.g., 2%) of their profits annually, in lieu of flat periodic maintenance fees. Implementing these changes, or suitable alternatives based on the underlying principles of these changes, will help the USPTO issue deserving inventors more durable patent rights to compete in the global market.

In the fall of 2020 Amarin Corporation - a brand-name drug company - brought an unprecedented claim in federal court. Instead of just suing a generic manufacturer for inducing infringement of its method patent, as is typical in litigation over skinny label generic drugs, Amarin also added a health insurance company as a defendant. In its complaint, Amarin alleged that Health Net induced infringement under 35 USC section 271(b) of the 'Patent Act' by charging a lower co-pay for the generic, skinny label version of its brand-name drug. Industry commentators agreed that a finding of liability for Health Net would be a blow to the generic industry, as the precedent would dissuade insurers from covering skinny label generics in the future. Amarin's case withstood a motion to dismiss before the parties settled. Using 'Amarin Pharma, Inc v Hikma Pharmaceuticals USA Inc' as a jumping off point, this comment is the first piece of legal scholarship to examine whether, and under what circumstances, health insurers can induce infringement of a method patent by providing preferential coverage of a skinny label generic when it is distributed for a patented drug indication. An evaluation of this question requires examining the standard of causation in induced infringement cases, a subject that has received startlingly little judicial or scholarly inquiry. This comment argues that the Delaware district court's decision in 'Amarin' was based on an improper theory of causation that assumed insurance companies have a duty to prevent infringement. It then establishes that the proper counterfactual baseline for evaluating inducement claims against insurers reveals that insurance companies are rarely the but-for cause of infringement in the skinny label context. In proposing an application of the loss of chance doctrine to determine liability in future cases, this comment also identifies and addresses a key legal error from the majority opinion in 'GlaxoSmithKline LLC v Teva Pharmaceuticals USA, Inc' a misapplication of causation principles in damages calculations for induced infringement. Ultimately, the comment demonstrates that adopting a loss of chance theory of the injury in future cases would force courts to conduct often-ignored causation analysis and ensure that a finding of inducement corresponds with a proportionate damages award.