For many years, patent law has struggled with the issue of permissible claim scope. A patent’s specification and its claims often suffer from a surprising disconnect. The specification generally describes an invention in terms of one or more specific implementations; suggesting a relatively...

The issue of patentable subject matter eligibility is in considerable flux. In 2012, the Supreme Court set forth a confusing new framework for determining patent eligibility. The decision in Mayo v. Prometheus cast serious doubt on the continued viability of many software patents. Indeed, a...

Patent litigation is often called the “sport of kings.” While that phrase may not be appropriate for all patent disputes, it is an apt description of the high-stakes cases. Attorneys in these lawsuits tend to zealously advocate for their respective sides by asserting every argument that they...

In August 2012, the jury awarded Monsanto a whopping one billion dollars in its patent infringement lawsuit against DuPont. That’s real money even for today’s high stakes patent disputes. Although many observers were shocked by the sheer magnitude of the award, it’s really the damages...

With a few narrow exceptions, U.S. patent law concerns itself with activity that either occurs within this country’s borders or crosses its borders. The result is that patent owners have only been able to recover money damages for activity that takes place in this country. In the typical case,...

Non-economic damages (pain and suffering) are the most significant and variable components of liability. Our survey of 51 U.S. jurisdictions shows wide heterogeneity in whether attorneys may quantify damages as time-units of suffering (“per diem”) or demand a specific amount (“lump...

eBay Inc. v. MercExchange, L.L.C, 547 U.S. 388, 394 (2006) held that that courts should apply the traditional four-factor test when deciding whether to issue a permanent injunction to a prevailing patentee. Certiorari should be granted in this case because the Federal Circuit's decision dilutes...

By protecting the right to a jury, the State and Federal Constitutions recognize the fundamental value of having civil and criminal disputes resolved by laypersons. However actual trials are relatively rare, in part because parties seek to avoid the risks and cost of trials, and courts seek to...