Friday, December 23, 2011
Monday, December 12, 2011
Monday, December 5, 2011
Should the Federal Circuit issue a higher proportion of non-precedential opinions? In Prospectivity and Retroactivity in Patent Law, Professor David Schwartz of the Chicago-Kent College of Law writes a draft article that raises this and many other fascinating questions.
Reflecting on the role Federal Circuit precedent plays on patent rights, Schwartz uses his piece to illustrate that, while many Federal Circuit opinions have significant retroactive effects on pre-existing patents, most of these opinions have few (if any) prospective effects on future patents. His point, essentially, is that patents, once issued, are very rarely capable of meaningful amendment or modification, so court opinions that limit (or enhance) the value of pre-existing patents will have a meaningful impact on those pre-existing patents; in many cases, the court opinions will contract a patentee’s rights, and there is nothing that the patentee will be able to do about it. At the same time, however, court opinions will often have little to no impact on future patents, as savvy patent prosecutors will usually find ways to “draft around” a court’s newly established patent rules.