This month we highlight two papers and two books. The first paper analyzes opinion assignments within the Federal Circuit, while the second paper considers the remedy of disgorgement in intellectual property cases. The first book focuses on the challenges 3D printing poses to traditional intellectual property regimes, while the second book analyzes the possibility of standardizing remedies for patent infringement in the context of complex products like smartphones and laptops.
Melissa F. Wasserman and Jonathan D. Slack, Is Too Much Specialization a Bad Thing? Specialization in Specialized Courts, SSRN (Feb. 22, 2020)
In this article, Wasserman and Slack examine empirical data related to opinion assignments at the Federal Circuit and conclude that “opinion specialization is a robust part of the Federal Circuit’s practice.” They find that Federal Circuit judges “write a disproportionately larger number of opinions in preferred subject matters as well as write a disproportionately fewer number of opinions in subject areas they seek to avoid.” Moreover, they find that “certain subject matters spur more specialization than others.” According to Wasserman and Slack, however, “the costs of opinion specialization in specialized courts likely outweigh the benefits,” and so they propose various ways to decrease opinion specialization.
Pamela Samuelson, John M. Golden, and Mark P. Gergen, Recalibrating the Disgorgement Remedy in Intellectual Property Cases, SSRN (Feb. 25, 2020)
To what extent does each area of intellectual property law have a disgorgement remedy that complies with traditional principles of restitution and unjust enrichment? In this article, Samuelson, Golden, and Gergen find that “[d]isgorgement awards in some IP cases ignore these principles and grossly exceed profit attributable to the defendant’s wrong.” As a result, they “recommend some ways for courts to achieve greater consistency with restitutionary principles and explain why such consistency is desirable.” Specifically, they conclude that “that disgorgement should be treated as an equitable remedy to be applied only in cases of willful infringement, . . . and subject to a further restriction that disgorgement should be limited to profits properly attributable to the infringement.”
To what extent has 3D printing technology disrupted traditional intellectual property doctrines? In this recent book, Osborn “focuses on the novel issues raised for IP law by 3D printing for the major IP systems around the world.” In particular, he “addresses how patent and design law must wrestle with protecting digital versions of inventions and policing individualized manufacturing, how trademark law must confront the dissociation of design from manufacturing, and how patent and copyright law must be reconciled when digital versions of primarily utilitarian objects are concerned.” In this book, Osborn “offers an innovation-centered analysis of and balanced response to the disruption caused by 3D printing.”
C. Bradford Biddle, Jorge L. Contreras, Brian J. Love, and Norman V. Siebrasse (eds.), Patent Remedies and Complex Products: Toward a Global Consensus, Cambridge University Press (2019)
Should remedies for patent infringement by complex products like smartphones and laptops be consistent around the globe? And, if so, what would those remedies be? In this recent book, various intellectual property law professors from around the world confront “[t]he reality that innovative companies now routinely bring these kinds of complex products to market in the midst of this daunting patent landscape raises a number of challenging questions with respect to how the law should value patents and provide remedies for their infringement.” These professors consider the law governing various patent law doctrines impacting damages and injunctions; “identify areas of existing consensus; build new consensus where possible; identify areas of disagreement; and specify the nature and direction of research that would be required to help resolve those disagreements.” Their goal in publishing this book is to “assist policymakers, judges, lawyers, and others throughout the world to address these and other issues in a rational, predictable, and cost-effective manner” and “stimulate fruitful discussion of [their] recommendations and research proposals.” (For full disclosure, note I am a co-author of two chapters in this book.)