Quarterly Journal 48-4 Volume 48, Issue 4 December 2020

CERTIORARI IN PATENT CASES

In the decade from 2010 to 2019, the Supreme Court decided more patent law cases than in the prior three decades combined. From all appearances, we live in an age of renewed interest in patent law. However, what truly drives the Supreme Court’s interest to review patent cases? What factors have played a role in the increased rate of certiorari of patent cases? In this Article, the Author explores the history and some statistics on Supreme Court review of patent cases, the role of amici and the views of the Solicitor General, the rise of a Supreme Court patent bar, the perception of the Federal Circuit’s deviance from Supreme Court precedent and approaches, and increased ideological division at the Court as factors in the Supreme Court’s increased rate of review of patent cases in recent years. The Author conducts and reports on anonymized interviews with those most familiar with Supreme Court certiorari decisions to provide a qualitative assessment of the key factors that have influenced Supreme Court review of patent cases and provide analysis of how these considerations might impact patent cases in the decade to come. Noteworthy data include that, contrary to assertions in prior scholarship, although experienced Supreme Court advocates bring unique skills that increase the rate of certiorari on petitions they file, the identity or name recognition of an advocate does not have a significant impact on the certiorari decision. The Article also explores how the process of certiorari in patent cases could be improved. Namely, the Author recommends that in deciding whether to grant certiorari in a patent case, where there are typically no circuit splits to help signal the need for Supreme Court review, the Court should give greater weight to whether a writ of certiorari is in the public interest, particularly whether a Supreme Court decision would contribute to or undermine the certainty and stability of the law.

HOW STANDARDIZATION FACILITATES THE SPECULATED FUNCTIONS OF THE PATENT LAW, AS OBSERVED FROM THE DEVELOPMENT OF THE INTERNET OF VEHICLES

Prospect theory speculated that technological possibilities can be a gold mine. A great inventor can prospect those technological possibilities with the grant of patent rights and enlist collaboration to exploit possibilities innovatively. In his famous 1977 article, Edmund Kitch, the creator of the prospect theory, posited that disclosure and coordination are the two crucial functions of the patent system. In practice, the coordination of follow-on research and development is inherently problematic due to the diversity of technological possibilities, extensive knowledge, and the number of researchers required. Standardization utilizes the creation of technology platforms for component and end-product manufacturers to coordinate and disclose specifications for implementers to follow. The practices facilitate problem-solving by encouraging technical contributions. This Article discusses Kitch’s disclosure and coordination functions, and how standardization validates his ideas without prospect patents. While the growing interest in the Internet of Vehicles is propelling discussion on the superiority of the IEEE 802.11p and LTE-V2X standards, firms cannot neglect compatibility, which enables firms to compete and collaborate at the same time. Undoubtedly, the spread of competitive collaboration fosters consumer welfare.

MODIFY LIKE SPOTIFY: REPLACING THE “INTENDED AUDIENCE” STANDARD AND EMPLOYING MUSIC PSYCHOLOGISTS FOR COPYRIGHT INFRINGEMENT

Copyright infringement doctrine requires finders of fact to assess two elements, copying in fact and improper appropriation, as set forth by the Court of Appeals for the Second Circuit in Arnstein v. Porter concerning musical works. The same court also gave birth to a standard for expert witnesses—they are permitted to testify regarding copying in fact, but they are prohibited from opining as to whether that copying went so far as to be improper.
 
One such struggle for courts is jury assessments of improper appropriation from the perspective of the ordinary observer, or “lay listener,” for musical works. Juries are charged with analyzing the reaction of the intended audience, which is a difficult perspective for an average juror to adopt.
 
Another issue for courts is the use of expert testimony. Many expert witnesses taint the jury’s determination of improper appropriation with inappropriately subjective information. At times, courts will overlook inadmissible testimony that casts a shadow of doubt regarding fairness in these trials. Furthermore, parties typically employ expert witnesses of occupations with varying degrees of relevance, which leads to inconsistent outcomes in music copyright infringement jurisprudence.
 
This Note first argues that courts should abandon the “intended audience” standard in favor of an “actual audience” standard because the reactions of the individuals paying for the music are more important. Additionally, as the concept of an “intended audience” deteriorates in the music industry, courts should follow suit.

The Author's second argument is that courts should employ neutral music psychologists as expert witnesses in music copyright infringement trials because they are able to provide objective information regarding human perception of musical similarities. Adoption of a standard expert witness would avoid fragmented decisions from the age-old dilemma of “battles of the experts.”

PATENTS VS. PRIVACY: BALANCING CROSS-BORDER DISCOVERY WITH THE GENERAL DATA PROTECTION REGULATION IN PATENT LITIGATION

The General Data Protection Regulation ("GDPR") has an unclear and potentially dangerous impact on cross-border discovery for patent litigation in the United States. The GDPR significantly increases the severity of punishment for unlawful transfer of personal data to countries outside of the European Union, and acts as a foreign blocking statute to limit discovery under the Federal Rules of Civil Procedure. This Note predicts how the GDPR will impact pre-trial discovery in patent litigation by analyzing trends in federal courts and International Trade Commission decisions. This Note also proposes a strategy to increase the predictability of the conflict of law analysis performed by courts: amending the procedure for obtaining protective orders of personal data under Rule 26(c), and for filing personal data under seal under Rule 5.2 to incorporate the effective aspects of discovery procedures used by the International Trade Commission.

THE ENFORCEMENT OF PROCESS PATENTS: STEPS FORWARD

Patent enforcement of process patents has always been difficult due to the unique characteristics of processes. The steps included in a process are often fleeting and less tangible than a product. Nonetheless, these steps significantly affect and are crucial to the functions of the final product. The avenues provided by Congress for process patentees to pursue infringement suits are unclear and do not adequately provide protection to the patentees. Courts are divided in their interpretations of 35 U.S.C. §§ 271(a) and 271(g), resulting in inconsistent court decisions and further convoluting process patent enforcement. Instead of relying on inconsistent judicial interpretations, Congress should amend 35 U.S.C. §§ 271(a), 271(g), and 295 to clarify their intentions. This Note proposes that 35 U.S.C. § 271(a) should be amended to explicitly include “processes” in defining “patented invention.” Additionally, 35 U.S.C. § 271(g) should be amended to explicitly hold both domestic and foreign downstream manufacturers liable for infringement of U.S. process patents. Lastly, 35 U.S.C. § 295 should be amended to clearly define when an alleged infringer bears the burden of proving non-infringement.