Patent Literature

Pain and Suffering: Prof. Ronen Avraham was moved by the story of Robert Kearns (Flash of Genius) and asks Should Courts Award Pain and Suffering Damages in Patent Infringement Cases?  His answer is YES, “courts should award damages to solo inventors for noneconomic harm resulting from patent infringement.”

Licensing Without Litigation: Mark A. Lemley has again teamed up with Kent Richardson and Erik Oliver to provide some data about the “Patent Enforcement Iceberg” — licenses of non-litigated patents.  Their tentative conclusion is that the iceberg isn’t that deep.   In a separate econ paper (Bereskin, et al) argues that plaintiffs bringing patent infringement lawsuits see increased stock-value.

All Elements (Limitations): Ted Field’s article on patent terminology probably doesn’t provide a lot for experienced patent attorneys – except for his discussion of “limitations” vs. “elements.” He writes:

Claims are made up of constituent parts, which are properly called “limitations.” It is improper to refer to the constituent parts of a claim as “elements.” Instead, “elements” properly refers only to a constituent part of an accused device or a prior-art reference, not to a constituent part of a claim.

Although Field cites authority for his proposition, I will note that the Federal Circuit regularly considers “claim elements.”  Consider, the following two recent examples: Bosch Automotive Serv. Sols., LLC v. Matal, 2015-1928, 2017 WL 6543777 (Fed. Cir. Dec. 22, 2017) (“When no structure in the specification is linked to the function in a means-plus-function claim element, that claim is indefinite under 35 U.S.C. § 112, ¶ 2.”); Smart Sys. Innovations, LLC v. Chicago Transit Auth., 873 F.3d 1364, 1373–74 (Fed. Cir. 2017)(“The second step of the § 101 analysis requires us to determine whether the *1374 claim elements, when viewed individually and as an ordered combination, contain ‘an inventive concept sufficient to transform the claimed abstract idea into a patent-eligible application.'”)

Inherently Abstract vs Temporally Abstract: Alan Gocha’s new article focuses on patent eligibility and provides “an ontological model for determining section 101 patent eligibility under Alice.”  I think the most important contribution that Gocha makes is to categorize abstract ideas into those that are “inherently abstract” (preexisting fundamental truths) from those that are only “temporally abstract” (longstanding practices).  In his view, these two different types of abstract ideas should involve different jurisprudential approaches.