Posts Tagged: "Blocking Patent Doctrine"

Expansion of the Blocking Patent Doctrine: Trading Logic for Gremlins

Since Merck & Co. v. Teva Pharmaceuticals, blocking patent arguments have arisen in the Federal Circuit primarily in the pharmaceutical patent context, and until now have largely been limited to undermining evidence of commercial success. But just like gremlins fed after midnight, this doctrine inevitably spawned unwanted offspring that are now wreaking havoc… Assuming that no one would ever develop a product that might infringe a patent is inconsistent with numerous Federal Circuit realities. It’s right up there with the Tooth Fairy (sorry, kids).

Conjecture and Speculation in Patent Obviousness: Trading Logic for Hindsight

Hindsight bias, the phenomenon that things seem more predictable and obvious after they have occurred, is one of the most widely-studied “decision traps” in psychology… Patent litigation plays right into such human limitations, which affect judges and jurors alike. Patents are often litigated many years after the invention was made, and very often those who are accused of patent infringement will argue that the invention was obvious at the time it was made and a patent was applied for… And we accept a surprising amount of other conjecture in this analysis. For example, judges and jurors are told about a contemporaneous hypothetical person that – despite having only ordinary skill in the relevant technology – would have had super-human knowledge of all then-existing technical information, was fluent in every language under the sun, and would have done insane things to access information sources.