Tafas and the Future of Patent Administrative Law

My colleague Kali Murray has a new working paper on SSRN, First Things, First: A Principled Approach to Patent Administrative Law. Kali analyzes a controversial recent decision from the Eastern District of Virginia in Tafas v. Dudas. In the Tafas decision, currently on appeal in the Federal Circuit, the lower court rejected new rules adopted by the U.S. Patent and Trademark Office that limit the ability of patent applicants to file continuation applications. As Kali demonstrates, Tafas opens up deep questions about the extent to which the PTO is subject to normal principles of administrative law. Kali thinks it is indeed time to engage in a fundamental reconsideration of the relationship between patent law and administrative law. Her paper concludes with some helpful suggested principles to guide such a reconsideration.

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Legislative Usurpation of Jury Deliberations

It is now beyond question that the use of automotive safety belts goes a long way to reducing the number of injuries and deaths occasioned by auto accidents. When those belts are combined with the air bags in newer models of motor vehicles, the survivability of motor accidents increases greatly.

It is somewhat of an historical anomaly that while auto manufacturers were required by law to install safety belts in new vehicles starting about the middle of the last century, the same laws did not mandate the use of those belts by vehicle occupants. A strong case can and has been made that regardless of statutory mandate, a reasonable person of ordinary prudence would make use of available automotive belts. Since most states now require safety belt use, e.g., Wis. Stat. § 347.48(2m), that argument is no longer necessary. Thus the legislatures have established a standard of care.

However, an example of the lobbying power of the plaintiffs’ personal injury bar may be seen in the fact that many state belt use statutes contain provisions limiting reduction of an auto accident victim’s damages if he or she did not use an available safety belt. For example, Wis. Stat. § 347.48(2m)(g) provides that damages may not be reduced by more than fifteen percent.

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Copyright Catch-22

With the closing of Bill Patry’s Copyright Blog, there’s a distinct absence of copyright wonkery on the web. So I will occasionally do my best to chip in. Today’s case raises the following possibility: Suppose you run a business heavily dependent on a certain software program. And suppose the owner of that program keeps writing you cease and desist letters, saying that your copy is infringing and that each passing day accumulates more actual damages, as well as your profits attributable to the infringement. You want to clear this cloud from your business, and heaven forfend, if you are found to be infringing, put a cap on the damages. But let’s suppose the owner hasn’t gotten around to actually registering the copyright yet. Can you sue for a declaratory judgement action?

In Weitzman v. Microcomputer Resources, the Eleventh Circuit said no. That intolerable situation can persist until the owner finally decides to sue you instead.

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