Stanford Technology Law Review

The Stanford Technology Law Review (STLR) strives to present well-rounded analyses of the legal, business, and policy issues that arise at the intersection of intellectual property law, science and technology, and industry. STLR publishes exclusively online, providing timely coverage of emerging issues to its readership base of legal academics and practitioners. As of the Spring of 2015, all articles published by STLR are peer-reviewed prior to acceptance.

Current Issue

Volume 19, Issue 2

Articles

TOWARD AN AUTOMATED FIRST IMPRESSION ON PATENT CLAIM VALIDITY: ALGORITHMICALLY ASSOCIATING CLAIM LANGUAGE WITH SPECIFIC RULES OF LAW

Can an algorithm identify words that place patent claims at higher risk of invalidation? Today’s language processing software can hardly compete with a seasoned legal professional in assessing claim quality. It may, however, uncover patterns that indicate similarity of patent claim terms to others that have already been challenged in the courts. This methodology quantitatively approximates the invalidity risk a patent claim faces based on the similarity of its words to other claims adjudicated under a specific rule of law. In this way, software-based linguistic analysis according to the methodology presented here provides a starting point for efficiently and algorithmically generating a legal “first impression” on the text of a patent claim. This study explores potential correlation of keywords to patent eligibility, a legal doctrine restricting a patent’s monopoly power to innovations of particular types. This methodology explores the possibility of estimating risk for a particular claim, based on the presence of keywords commonly seen in claims previously adjudicated for validity under a specific rule of law. Such tools could efficiently reduce the scope of uncertainty for factors indicating patent quality and provide alternatives to costly litigation for patent value discovery.
  • April 2016
  • 19 Stan. Tech. L. Rev. 196
  • Article

SPACE DEBRIS: A LAW AND ECONOMICS ANALYSIS OF THE ORBITAL COMMONS

In this paper, I examine the problem of space debris using the tools of economics. The difficulties posed by space debris resemble those typically associated with public goods and common pool resources. Thus it is not surprising that a tragedy of the commons has resulted, in the form of cluttered orbits. However, given the peculiar legal arrangements that characterize space in both domestic and international law, solving this problem is not straightforward. I analyze the difficulties that both private and public actors must overcome if the space debris problem is to be solved. Although proposing a particular solution is beyond the scope of this paper, by addressing the problem from an economic perspective, I clarify the costs that must be considered in order for private and public actors to make informed decisions concerning space debris mitigation and removal.
  • April 2016
  • 19 Stan. Tech. L. Rev. 221
  • Article

THE BAR AGAINST PATENTING OTHERS’ SECRETS

In patent litigation, courts frequently allow patent holders to access an accused infringer’s trade secrets and other confidential technology. Those secrets may be relevant to claims of patent infringement. But the confidential access creates a risk that patent holders will misuse those secrets when their attorneys or experts wear two hats— litigating the patent suit in court and working on patent applications in the same field as the accused infringer’s confidential technology. These two hats allow certain attorneys and experts the opportunity to target the accused infringer’s secret technology—either inadvertently or deliberately—by patenting it as their client’s own intellectual property (IP). Several courts attempt to prevent this potential misuse of IP by imposing a patent prosecution bar, which typically forbids those with access to another party’s confidential technology from working at all on patent applications in the same field. But the U.S. Court of Appeals for the Federal Circuit has created a flawed test for determining when a district court may impose prosecution bars. As implemented by most district courts, prosecution bars apply to only those attorneys and experts who are “competitive decisionmakers” and who have a history of working on patent applications. The test is based on a vague and underinclusive term and leaves those without a similar history free of a prosecution bar and positions them to target the other side’s trade secrets with new patent claims. This targeted patenting undermines the IP system’s channeling between patents and trade secrets. Channeling theory posits that inventors whose inventions are inherently transparent or at risk of being reverse engineered will choose patents and public disclosure over trade secrecy; but inventors whose inventions are inherently opaque may well choose trade secrecy. Both forms of IP promote innovation and deserve protection. Patent prosecution bars protect the integrity and incentives of both forms of IP by ensuring one party does not inadvertently or deliberately misappropriate the other’s trade secret and grab a monopoly over technology it did not create. Despite courts and parties routinely struggling to apply the Federal Circuit’s test, unfavorable standards of review have deterred appeals and made prosecution bars less visible to scholars. This Article fills a gap in the literature and proposes a new approach to patent prosecution bars that applies to everyone with confidential access. Instead of the current wholesale bars that prohibit any work on patent applications, the proposed model bar would prohibit only specific prosecution activities, such as drafting patent applications and claims, where attorneys or experts risk misusing their access to the other side’s secrets.
  • April 2016
  • 19 Stan. Tech. L. Rev. 239
  • Article

EFFICIENCIES AND REGULATORY SHORTCUTS: HOW SHOULD WE REGULATE COMPANIES LIKE AIRBNB AND UBER?

We explore the regulation of new software platforms that connect consumers with informal service providers for transportation, short-term rentals, and more. These platforms tend to be in tension with existing regulatory frameworks which typically require licensing, certification, and insurance. In one view, some of these requirements are outdated or protectionist, benefiting incumbents more than consumers. Others counter that the rules embody important values and protect both customers and the public at large. We explore these disagreements with an eye for how the regulatory framework might allow the key efficiencies these platforms provide, while assuring protection for customers and avoiding harm to noncustomers.
  • April 2016
  • 19 Stan. Tech. L. Rev. 293
  • Article

OCTANE FITNESS: THE SHIFTING OF PATENT ATTORNEYS’ FEES MOVES INTO HIGH GEAR

In 2014, the United States Supreme Court decided Octane Fitness. LLC v. ICON Health & Fitness, LLC, significantly altering the standard for granting attorneys’ fees shifting at the close of a patent litigation. Combine with precedent announced on the same day in Highmark Inc. v. Allcare Health Management Systems, scholars have opined that under the new regime, the standard for proving entitlement to attorneys’ fees in patent litigations will be considerably relaxed. Despite the widespread acceptance of the viewpoint, few empirical analyses—if any—have objectively confirmed it. This paper provides a first glimpse into whether the Supreme Court’s decision in Octane changed the attorneys’ fees standard in practice. By investigating the rate at which courts have granted attorneys’ fees motions before and after Octane, broken down by whether the movant was a patentee or accused infringer, the technology of the patent asserted, the circuit and district where the suit was decided, and what factors were considered by each court in its opinion, this research confirms that Octane’s reinterpretation of § 285 has had observable effects. In particular, this study finds a statistically significant increase in the rate of attorneys’ fee shifting after Octane, particularly for motions filed by accused infringers and in motions concerning electronics and software patents. The results of this study shed light on meaningful and recent changes to the patent litigation incentive structure and will be helpful in predicting future changes to the patent litigation landscape.
  • April 2016
  • 19 Stan. Tech. L. Rev. 329
  • Article

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