AME 44590 Homework, Summer 2011

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Due Thursday 26 May 2011

Read

Due Friday 27 May 2011

Due Tuesday 31 May 2011

If it is helpful to understand the case, you should also review the patent that is involved in the case.

Due Wednesday 1 June 2011

We are starting the subject of "statutory subject matter." 35 USC 101 describes the class of things that can be patented. Read the following.

Due Thursday 2 June 2011

The reading for today is two more cases on patentable subject matter. Note they are both from the CAFC, not the Supreme Court.

If we have time, which I think we will, we will split into two groups to have a debate on whether computer programs and business methods should be patentable. A good way to prepare for that would be to have ready what the fundamental principles are that seem to be the distinction between patentable processes and not, and also what arguments can be made that software and business methods should or should not be patentable to the extent that they promote the progress of science and the useful arts.

Due Friday 3 June 2011

One would think, with it being 2011 and all, that it would be well-established what sorts of things are eligible to be patented and what sort of things are not eligible to be patented. Read the following and observe that, while the decision was unanimous, the Supreme Court was split 5-4 (and was actually divided in a more complicated way than that) as to the reasoning supporting the decision.

Due Tuesday 7 June 2011

We are going to start on 'statutory bars' which is section 102. Both of these cases pre-date the 1952 patent statute, but elucidate the principles embodied therein. Read:

Due Wednesday 8 June 2011

  • Read Elizabeth v. American Nicholson Pavement Company, 97 U.S. 126 (1877)
  • Read Lough v. Brunswick Corp., 86 F.3d 1113 (1996)
  • Go to the Google patent page and find a patent that seems to interest you. Download and read it. Be prepared to describe it in class. Read the claims too -- part of the discussion will be generally what it is and how it works (the description of the invention) versus what was actually claimed. There are a couple requirements: a) it must be a US patent, b) it must be issued between 1980 and 2000 and c) it must be at least 4 pages long with at least 3 pages of text. The reason for b) is that we may look at later patents which cite it and consider obviousness in light of it.
  • Look up Bilski on Westlaw. Scroll to the bottom of the case where it lists all of the briefs that were filed. Pick one and read it. Use your best effort to choose one that no one else will read, e.g., if you dicuss it with your roomates before you select one, you should choose one they did not choose. You don't have to read it with the same focus on detail that you read the cases, but read it well enough to be able to list and summarize what the main arguments are. Pay particular attention to any arguments that did not come up in class.\

Due Thursday 9 June 2011

Read the next three cases:

Be sure to consult the patents too. I would observe that the last time I taught the course, not a single person in the class could explain to me how the device described in the patent in the UMC case actually worked, which was something I did not like.

Due Tuesday 14 June 2011

Due Wednesday 15 June 2011

Read W.L. Gore & Associates, Inc. v. Garlock, Inc., 721 F.2d 1540 (1983).

Due Thursday 16 June 2011

We have covered three areas of patent law so far:

  1. obviousness
  2. statutory subject matter
  3. novelty
  • Select one of the three areas and review the cases. Pay particular attention to the reasoning behind the decisions and also on how the reasoning for different options may (or may not) have changed through time. Also be sure to notice which court said what, because the Supreme Court rulings have authority over the CAFC and other lower courts.
  • Write a one-page paper (handwritten is fine) arguing that the last case we read on that topic was decided incorrectly. The last case is the one that occurred most recently in time. Generally the cases have been assigned in temporal order so it's probably the last one we read in that area too.
  • Generally, courts are concerned with the following:
    • precedent: cases are decided consistently and the body of law is relatively uniform over time
    • statutory interpretations: cases should be decided in a manner that are consistent with a clear reading of any relevant statutes
    • Constitutional mandates: regardless of precedent or statutes, nothing can be contrary to the Constitution; however, if it's a matter of degree, courts generally defer to the legislature
    • general policy concerns: if things are right on the border and can really go either way, then the decision should be the one that is simply the best overall in terms of simplicity of implementation, clarity for people to interpret and follow, giving people the right incentives, etc.
  • If there is a dissenting opinion, your paper must be more than a summary of the arguments in the dissent.
  • Anyone that has an argument that is so well-reasoned and makes so much sense that I can not articulate a counter-argument to it within 30 seconds will receive double credit.
  • Be prepared to summarize your paper in class (1 minute max). The summary can present the best of several arguments that you have or, alternatively, summarize them like a list of bullet points.

Due Friday 17 June 2011

We are switching subjects to infringement. Read the following three cases.

Due Monday 20 June 2011

  • If your last name starts with a letter between and including A through L, read Warner-Jenkinson v. Hilton Davis Petitioner Brief
  • If your last name starts with a letter between and including M through Z, read Warner-Jenkinson v. Hilton Davis Respondent Brief
  • We will do the debate based on the two briefs from Monday.
  • Also, having gone through it myself I can sympathize with the point of view that everything probably seems vague and problematic. At this point you would probably read a claim and be pretty hard pressed to describe the extent of the claims since the doctrine of equivalents would make the bounds for it very unclear. To help with this, your assignment is to go to Westlaw and look up Warner-Jenkinson. Find the headnote(s) dealing with the doctrine of equivalents and try to find a case with a pretty clear holding. In other words, even though the trial happened and the result was appealed, the outcome wasn't too debatable. Finding a critical mass of cases that have "clear" outcomes in terms of which side of the equivalents line they fall will probably help clarify this. Pick your case and read it. Be ready to discuss it on Wednesday.

You must make a reasonable attempt to find a unique case (unique in that you are the only one in the class that reads it). Knowing what everyone else in the class chooses will be difficult obviously, but at a minimum, your case must be different than anyone else in your flat.

Due Tuesday 21 June 2011

  • Do the last bullet for the previous assignment if you did not do so for Monday's class. Be ready to discuss it on Tuesday, not Wednesday.

Also, read the following case and the associated patent. We are now focusing on how much of a written description is necessary for a patent to be valid.

Due Wednesday 22 June 2011

  • Understand TurboCare at the level generally discussed in class on Tuesday.
  • Be ready to present your equivalents case if you have not already been called upon to do so.

Due Thursday 23 June 2011

This is a relatively heavy assignment, but I'll make up for it by a lighter assignment for next Tuesday.

The first case is on adequacy of disclosure in the original application. The last three are on damages and injunctions. The Microsoft case has a lot more too it as well, mostly related to things we've covered in class so it is good to read for those subjects as well because it will reaffirm a lot of what you already know.

Due Wednesday 29 June 2011