In a string of recent opinions, the Supreme Court has made it harder for consumers to avoid arbitration clauses, even when businesses strategically insert provisions in them that effectively prevent consumers from being able to bring any claim in any forum. In American Express Co. v. Italian...

For nearly forty years, since the Supreme Court decision in Illinois Brick, federal antitrust law has prevented indirect purchasers from complaining of overcharges caused by antitrust violations. The Court reasoned that direct purchasers are the best and most motivated antitrust plaintiffs. But...

We award patents to inventors because we hope to encourage new ideas. For this reason, the fundamental requirement for getting a patent is that you have invented something new.It is curious, then, that patent law itself purports to pay no attention to which aspects of a patentee’s invention...

More than 2.5 million United States patents have been issued in the last twenty years. While these patents are spread across all industries, a large percentage are concentrated in the information technology (IT) industries, and others in biotechnology. The prevalence of patents in these...

The patent statutes were wisely drafted with an expansive vision of patentable subject matter. Efforts to graft judicially created limitations onto that expansive scope in the past have proven fruitless and indeed counterproductive. In deciding Bilski v. Doll, the Supreme Court should not impose...

Standard Setting Organizations (SSOs) typically require their members to license any standard-essential patent on Fair, Reasonable, and Non-Discriminatory (FRAND) terms. Unfortunately, numerous high-stakes disputes have recently broken out over just what these “FRAND commitments” mean and...

The Supreme Court's decision in eBay v. MercExchange, which revolutionized the granting of injunctions in patent cases, has increasingly been applied to trademark cases as well. But courts applying eBay to trademark cases have ignored some fundamental differences between patent and trademark...

Patent law has tried to find a middle ground between a vision of invention as a mental act and a competing vision that focuses on the actual building of a working product. The definition of invention in the 1952 Patent Act incorporates both conception and reduction to practice, sometimes...