This month we highlight two scholarly articles related to the Federal Circuit.
Here are the details.
Retroactivity and Appointments
In his article, Professor Andrew C. Michaels “reviews the doctrine of retroactivity and appointments, discusses the relevant academic literature, and proposes a coherent framework for courts to use when faced with these important questions.” Specifically, he argues that “[t]he current law of retroactivity in the Appointments Clause context is confused” and has resulted in “significant practical consequences.” Professor Michaels also explores the Federal Circuit’s recent Arthrex decision and the court’s application of the doctrine of retroactivity with regards to the Appointments Clause.
Does Conjoint Analysis Reliably Value Patents?
In their article, Professor Bernard Chao and Sydney Donovan explore the reliability of conjoint analysis to calculate the value of the contribution a patent may make to the overall value of a product. The authors argue that “courts should not allow evidence of conjoint analysis to show the specific monetary value of specific features.” In exploring the validity of conjoint analysis, the authors found that their “surveys yielded irrationally high numbers.” Further, they demonstrate that “experts can manipulate the results of conjoint analysis by selecting among a number of different ostensibly reasonable statistical choices and picking the one that yields the most desirable outcome.”