The Federal Circuit is a response to a failure in judicial administration that produced a fractured, unworkable patent law; one that Congress concluded ill-served entrepreneurship and innovation. The purpose of the response – vesting exclusive jurisdiction for patent appeals in the Federal...

As an appellate body jurisdictionally demarcated by subject matter rather than geography, the United States Court of Appeals for the Federal Circuit occupies a unique role in the federal judiciary. This controversial institutional design has had profound effects on the jurisprudential...

The United States Court of Appeals for the Federal Circuit’s role in the U.S. Patent system has never been so controversial. And at the center of the debate concerning the institutional structure of the patent system lies the Federal Circuit’s 2005 en banc decision in Phillips v. AWH,...

The doctrine of equivalents is a judicial creation that allows patentees to exclude others from the use of subject matter beyond the textual scope of a patent’s claims. This venerable – and extremely controversial – doctrine is tolerated (or promoted) on the theory that it is fundamentally...

Following the difficult economic conditions of the 1970s the United States Congress decided to create the United States Court of Appeals for the Federal Circuit. In making the court Congress thought it was a good idea to circumscribe jurisdiction by subject matter area rather than by...

Even as it is hailed as the most significant legislative change to patent law in a half-century, some of the changes the U.S. Congress made in the Leahy-Smith America Invents Act are surprisingly equivocal. One provision captures this aspect of the Act particularly well: the pseudo-elimination...

The patent doctrine of inequitable conduct — which allows a patent to be held unenforceable on the basis of misbehavior by the applicant during patent prosecution — has been the subject of intense criticism from the bench and bar alike. And yet to date there has been no systematic attempt to...

An examination of the systemic importance of information necessary for defining the topography and contours of patented property reveals that such information is fundamental to the proper functioning of the patent system. Indeed, the question, What is the thing that is patented? is perhaps the...

In a widely reported article by Jeffrey Rosenfeld and Christopher Mason published in Genome Medicine, significant misstatements were made, because the authors did not sufficiently review the claims – which define the legal scope of a patent – in the patents they analyzed. Specifically, the...