August 21st, 2008
“Welcome to law school! Have a muffin. Oh, and please enjoy these and many other fine cases - we’ll be discussing them for three to four years.”
Law school holds many wonders, but first the new law student must learn how to decipher a case. To help you in that cause Law Professor Orin Kerr of George Washington University Law School has written How to Read a Legal Opinion: A Guide for New Law Students (11 Green Bag 2d 51 (2007) - free download via SSRN).
In it you will quickly learn:
- What’s in a legal opinion
- Common legal terms found in opinions
- What you need to learn from reading a case
- Why law professors use the case method
It is short, well written, and well worth taking a few minutes to read before the rush of law school life takes hold.
Tips for 1Ls
The web abounds with tips for the new first-year law student. Here are a few that caught our eye:
Finally, don’t forget our favorite tip: never hesitate to visit with your local law librarian. We’ve all been through this as well, many of us at this school. Whether a research question, assistance choosing a paper topic, or recommendations on bike routes, pubs and other bits of Portlandia, we are happy to help.
Source: Ziefbrief
August 12th, 2008
The latest issue of Lewis & Clark Law School’s Lewis & Clark Law Review is now out.
Here are the articles published in Volume 12, Number 2 of Lewis & Clark Law Review, complete with links to the abstracts and full-text articles:
Business Law Forum: Nonobviousness - The Shape of Things to Come
New L&C Law Scholarship is a regular feature of BoleyBlogs! Here we announce new content from the Law Reviews of Lewis & Clark Law School, along with the latest publishing ventures of our own faculty, students and staff.
August 12th, 2008
Gregory N. Mandel, Another Missed Opportunity: The Supreme Court?s Failure to Define Nonobviousness or Combat Hindsight Bias in KSR v. Teleflex, 12 Lewis & Clark Law Review 323 (2008)
This Article analyzes two significant errors of omission in the Supreme Court?s recent patent decision, KSR v. Teleflex. First, though KSR represents the Court?s eighth decision on nonobviousness since the standard was enacted in 1952, the Court still has never defined what this core patent standard requires. The failure to instruct on the level of ingenuity necessary to satisfy nonobviousness leads to inconsistent and unpredictable non-obvious decisions. Second, despite recognizing the problem of hindsight bias in nonobviousness analysis and the importance of ameliorating this bias to achieve accurate non-obvious decisions, the Supreme Court not only failed to take the hindsight problem seriously in KSR, but actually appeared to misconstrue the problem. As a result, nonobviousness decisions will continue to be systematically biased with respect to the legal inquiry required by section 103. This is a symposium article based on a presentation given at Nonobviousness?The Shape of Things to Come, a 2007 Lewis & Clark Law School Business Law Forum.
(abstract from Lewis & Clark Law Review)
August 12th, 2008
John F. Duffy, A Timing Approach to Patentability, 12 Lewis & Clark Law Review 343 (2008)
Patent law?s ?obviousness? doctrine, which bars patents for ?obvious? innovations, is generally understood as trying to exclude from patentability those innovations that would have been created and disclosed even without the inducement of patent rights. An ideal test of obviousness would both serve that overarching policy goal and be sufficiently definite and clear that the doctrine could be applied with consistency. This Article demonstrates that a ?timing approach? to patentability can achieve those twin objectives. The approach is based on the insight that the free and open competition to innovate present before patenting will reliably generate all obvious innovations quickly once the market and technological conditions make the innovation both valuable and obvious. Obvious innovations will thus arise soon after the technological or market conditions change to make the innovation more valuable or easier to achieve. Because changes in technology and market needs are relatively easy to observe, the timing of those changes can provide relatively clear and definite evidence of obviousness. This timing theory is remarkably good not only in explaining the results of the judicial decisions but also in predicting the existence of previously overlooked timing evidence. Most notably, a thorough review of the record in the seminal case of Hotchkiss v. Greenwood strongly suggests that the innovation there was an obvious response to a very recent technological development. A timing approach therefore reveals an important unifying pattern in the case law and connects that pattern to a fundamental relationship between the patent system and competition to innovate.
(abstract from Lewis & Clark Law Review)
August 12th, 2008
Rebecca S. Eisenberg, Pharma?s Nonobvious Problem, 12 Lewis & Clark Law Review 375 (2008)
This Article considers the effect of the recent decision of the U.S. Supreme Court in KSR International Co. v. Teleflex, Inc. on the nonobviousness standard for patentability as applied to pharmaceutical patents. By calling for an expansive and flexible analysis and disapproving of the use of rigid formulas in evaluating an invention for obviousness, KSR may appear to make it easier for generic competitors to challenge the validity of drug patents. But an examination of the Federal Circuit?s nonobviousness jurisprudence in the context of such challenges reveals that the Federal Circuit has been employing all along the sort of flexible approach that the Supreme Court admonished it to use in KSR. The decisions of the Federal Circuit considering obviousness challenges to pharmaceutical patents suggest that the pharmaceutical industry does indeed have a nonobviousness problem, but that problem is not KSR. Rather, the problem is that many of the patents that the industry relies upon are invalid for obviousness under time-honored patent doctrine. Although perhaps able to survive the limited scrutiny that is possible on the basis of the information available at the prosecution stage, these patents cannot withstand a validity challenge with the benefit of a full evidentiary record at the infringement stage. It is more difficult to conduct an expansive and flexible analysis with limited information. KSR is more likely to have an impact on pharmaceutical patents if it makes it easier for the PTO to reject patent applications for obviousness in the first instance. It remains to be seen whether it will do so.
(abstract from Lewis & Clark Law Review)
August 12th, 2008
Rochelle Cooper Dreyfuss, Nonobviousness: A Comment on Three Learned Papers, 12 Lewis & Clark Law Review 431 (2008)
This Article, a comment on the contributions of John Duffy, Rebecca Eisenberg, and Gregory Mandel, addresses three areas where improvements could be made in the law on nonobviousness. First, the quantum of inventiveness required for patentability should reflect the capabilities of the ordinary artisan. Second, the asymmetry in the error rate of nonobviousness determinations should be taken into account in setting the standard of nonobviousness. Third, the concept of nonobviousness?or, better, inventive step?should be operationalized by considering the opportunities, risks, and nonpatent incentives the inventor faced at the time of the innovation.
(abstract from Lewis & Clark Law Review)
August 12th, 2008
Vincenzo Denicol?, Economic Theories of the Nonobviousness Requirement for Patentability: A Survey, 12 Lewis & Clark Law Review 443 (2008)
In the economics literature, there have been four main approaches to the nonobviousness requirement for patentability: option value, sequential innovation, error-cost, and complementary innovation. This Article reviews these approaches and discusses their limits. All of the approaches share the premise that patenting may impose negative externalities, and thus is not always socially beneficial. When innovation is sequential, for instance, granting patent protection to trifling improvements of a path-breaking innovation may lower the pace of technological progress. Similarly, the overall incentive to innovate may be harmed if every minor component of a complex technology is separately patentable. In such circumstances, it may be desirable to deny patent protection even to genuine innovations.
(abstract from Lewis & Clark Law Review)
August 12th, 2008
R. Keith Sawyer, Creativity, Innovation, and Obviousness, 12 Lewis & Clark Law Review 461 (2008)
Psychologists who study creativity have never incorporated nonobviousness into their definition of creativity. Nonetheless, much of the psychological research is relevant to legal issues, particularly in light of the Supreme Court?s decision in KSR v. Teleflex, in which the Court problematized previous notions of obviousness?but without presenting a new standard to replace it. However, there are many critical issues left unresolved in the Supreme Court?s opinion. After a brief introductory summary of the decision, the author discusses three unresolved issues and for each, discusses how creativity research could contribute to their resolution: (1) the role of prior art in invention; (2) the distinction between ?ordinary? and exceptional innovation; and (3) the relative importance of proper posing of a problem and the combination that results in the solution. The author then briefly reviews research on the history of invention, proposes several recommendations for future changes to IP law, and concludes by noting a few of his concerns with the decision.
(abstract from Lewis & Clark Law Review)
August 12th, 2008
Colleen M. Seifert, Now Why Didn?t I Think of That? The Cognitive Processes that Create the Obvious, 12 Lewis & Clark Law Review 489 (2008)
The Supreme Court opinion in the KSR v. Teleflex case offers several claims about the cognitive processes involved in creativity. The ?nonobviousness? inquiry in the decision builds upon a host of assumptions about how to invent new solutions to practical problems. Research in cognitive science provides some scientific evidence about the cognitive processes involved in creativity. In this Article, the author presents studies from laboratory research in cognitive science, including both classic studies on problem solving and creativity and several of her own studies. From this evidence, she concludes that reasoning about the nonobviousness of ideas requires a rich and varied theory of human cognitive processes, perhaps more extensive than the one suggested by the Supreme Court?s decision in KSR v. Teleflex.
(abstract from Lewis & Clark Law Review)
August 12th, 2008
Steven M. Smith, Invisible Assumptions and the Unintentional Use of Knowledge and Experiences in Creative Cognition, 12 Lewis & Clark Law Review 509 (2008)
Research on the cognitive processes involved in creative thinking sheds light on the nonobviousness of new ideas and inventions. An understanding of the conscious and unconscious use of prior knowledge and experiences is essential to the appreciation of the ways that new ideas come about and how those ideas should be evaluated. The creation of a guide for nonobviousness in patent law is proposed which would set out rigorous criteria for presenting and assessing evidence of nonobviousness that are as clear as those criteria that concern other aspects of patents. Such a guide would promote fairness in the consideration of patent evidence by describing practices and procedures that, if consistently applied, would tend to increase the fairness of patent evidence. Adherence to these procedures could conceivably decrease the number of wrongfully granted and wrongfully denied patents, and would help ensure that reliable procedures are included in the presentation and assessment of patent applications.
(abstract from Lewis & Clark Law Review)
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