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Can't the PTO Get a Little Respect?

Joshua L. Sohn

26 Berkeley Tech. L.J. 1603 (2011) [Periódico revisado por pares]

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  • Título:
    Can't the PTO Get a Little Respect?
  • Autor: Joshua L. Sohn
  • Assuntos: Systematically; Administrative; Reexamination; Unenforceable; Specifically; Infringement; Introduction; Proceedings; Considering; Information; Administrative Law; Criminal Law & Procedure; Environmental Law; Evidence; Governments; Patent Law
  • É parte de: 26 Berkeley Tech. L.J. 1603 (2011)
  • Descrição: I. INTRODUCTION The administrative decisions of the U.S. Patent and Trademark Office ("PTO") are explicitly or implicitly at issue in every patent infringement suit filed in federal court. 1 After all, the PTO is the agency that grants U.S. patents, so every plaintiff who brings a patent infringement suit is effectively suing to enforce the monopoly that the PTO has granted him on his invention. Moreover, a patent defendant may defend against the infringement suit by claiming that the patent is "invalid" - which essentially is an argument that the PTO erred in granting the patent. Relatedly, a defendant may seek to declare the patent unenforceable by claiming that the patentee engaged in "inequitable conduct" by hiding material information from the PTO while the PTO was considering whether to grant the patent. A defendant may even initiate a reexamination action before the PTO, which asks the PTO itself to reexamine whether the invention at issue is truly patent-worthy. Despite the central role that the PTO plays in federal patent suits, this Article argues that federal courts systematically denigrate the PTO and refuse to give it the deference that courts normally give to the decisions and proceedings of federal administrative agencies. Specifically, this Article focuses on three areas of patent law - invalidity, inequitable conduct, and stays pending reexamination - in which federal courts fail to give the PTO the normal levels of administrative "respect." First, the judicially-crafted burden for ...
  • Idioma: Inglês

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