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JOHN W. SCHLICHER |
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PATENTS, PATENT LITIGATION, PATENT DISPUTE RESOLUTION AND SETTLEMENT, LICENSING, ANTITRUST, LAW AND ECONOMICS |
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John W. Schlicher, Patent Law: Legal and Economic Principles, Thomson West (1992, Second Edition 2003, updated annually) (about 1400 pages, $675) Link to West Store Damages, Injunctions, Exhaustion Doctrine of Equivalents, Nonobviousness, Section 102(b), Market Power PREFACE (excerpts) Patent law has proved to be a difficult subject for the courts, the United States Patent and Trademark Office and lawyers. The Patent Act defines most basic patent doctrines in general language that leaves the federal courts wide latitude to define the meanings of those doctrines and how they are applied in practice. We should expect the courts to interpret and apply the Patent Act based on the language of the substantive provisions, the purposes of those provisions, and the manner in which earlier legislatures and courts developed the law. Much of the confusion about patent law stems from misunderstandings about those purposes and that history. This book was written to help eliminate or at least reduce this confusion. This book is not simply another treatise that recites the statute, the verbal formulas the courts have devised for deciding patent issues, and the results in certain cases. Chapter 1 provides a summary of current patent law using language that assumes the reader knows nothing about patents. This summary also briefly explains the reason for each basic doctrine. Chapter 2 describes the purpose and effects of patent law. The Patent Act and its legislative history do not clearly define what the Act seeks to accomplish and how particular provisions of the Act relate to achieving that purpose. The courts are left to define and apply the law based on their perceptions of the desired purposes and effects. Those shifting and often mistaken perceptions have had important effects on the law. This is undesirable and unnecessary. Patent law seeks to achieve certain economic results and effects. Chapter 2 describes explains the economic concepts that should underlie patent law along with the economic theories of patents that the courts have identified over the years. This chapter identifies the many erroneous views about the economic effects of patents that have contributed to undesirable law and applications of the law. Recent history has shown that this law and economics approach to patent law has become an influential tool in predicting where change will occur and the nature of that change. Chapters 3 through 12 then address each major substantive patent doctrine. Those subjects are organized in traditional sequence of patent law treatises. Each chapter describes the state of the law in detail as set out in the Act and the controlling judicial decisions. Each chapter then separately addresses the economic purposes and likely effects of the law. Chapters 3 to 12 also contain sections devoted to the history of the creation and modification of patent doctrines. The history of the law emphasizes the important amendments to the Patent Act over the last 220 years, the hundreds of decisions of the United States Supreme Court, the important decisions of influential Courts of Appeals prior to 1982, and the significant decisions of the Court of Appeals for the Federal Circuit after 1982. This discussion also describes the important facts of the major cases so that the actual consequences of the legal standards may be appreciated. The facts are and should be as important to understanding a particular decision as a Court’s accompanying explanation of some legal principle. The development sections are organized chronologically, so that reading from beginning to end provides a sense of how the law changed over time and the concepts that drove the changes. Chapter 13 describes many changes to patent law that would be beneficial. |