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April 20, 2015

Restoring the Fact/Law Distinction in Patent Claim Construction

Two decades ago, the Supreme Court sought to promote more effective, transparent patent litigation in Markman v. Westview Instruments by ruling that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court.” In so doing, the Court removed interpretation of patent claims from the black box of jury deliberations by holding that the Seventh Amendment right to a jury trial did not extend to patent claim construction. Failing to find clear historical evidence of how claim construction was handled in 1791, the Court turned to “the relative interpretive skills of judges and juries and the statutory policies that ought to be furthered by the allocation.” It concluded that federal district court judges were better equipped than juries to resolve the mixed fact/law controversies inherent in construing disputed patent claim terms, thereby leading to more effective and transparent patent litigation. Fully achieving the Court’s goal of more effective and transparent patent litigation, however, depends on district judges having the flexibility to learn pertinent facts, build a reviewable record, and explain the basis for their claim constructions.

March 29, 2015

Conversation with Julius Miner Moot Court Participants on Kellogg Brown & FCA First-to-File Bar

NULR Online Articles Editor Carlo Felizardo interviews Julius Miner Moot Court problem editor Scott Shelton, along with competition finalists Whitney Woodward and Christian Colburn, about the competition and the Supreme Court's pending decision about the False Claims Act's first-to-file bar in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter.

March 19, 2015

Conversation with Professor Michael A. Carrier on Antitrust Law and Patent Settlements

In this podcast, Professor Michael A. Carrier discusses antitrust law and patent settlements, as described in his essay How Not to Apply Actavis with NULR Online editor Brian O'Connell.

February 25, 2015

Conversation with Professor Todd Haugh on SOX on Fish

Professor Todd Haugh discusses Yates v. United States and his recent essay, SOX on Fish: A New Harm of Overcriminalization with NULR Online editor Jeff Wojciechowski.