Trends in Patent Litigation

The Apparent Influence of Strengthened Patents Attributable to the Court of Appeals for the Federal Circuit

by Jon Merz, Nicholas M. Pace

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This study explores the ramifications of the influence of the Court of Appeals for the Federal Circuit (CAFC) on the doctrinal stability and certainty of the patent law, and provides evidence that patentees (and their intellectual property counsel) have read the signals and responded by using the courts to enforce the patent rights. Whether the CAFCUs bolstering the value of patents has in turn led to greater patenting activity remains largely unanswered, although the motivations are clear. Patenting is an expensive activity for inventors and their assignees, and, unless the courts are going to recognize and enforce patent rights, maintaining technological advances as trade secrets (when possible) may be a better alternative.

Originally published in: Journal of the Patent and Trademark Office Society, v. 76, no. 8, August 1994, pp. 579-590.

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