Document Type
Article
Publication Title
Case Western Reserve Law Review
Abstract
As the title to this article indicates, I shall engage in some sort of a quasi-originalist inquiry into the proper interpretation of this clause, in an effort to find out how it was understood during the founding period. I shall largely restrict myself to the patent line of cases. The evidence will in some cases go beyond that period to cover nineteenth-century cases which offer an accurate reflection of the earlier thinking, insofar as they exhibit no intention to alter the law from the way in which it was originally formed. The issue is of no little importance because the recent decisions of the United States Supreme Court have tended to take a restrictive view of the rights of patentees, and the protection of patents under the law. Both Mayo Collaborative Services v. Prometheus Laboratories and Alice Corp. v. CLS Bank Inter– national gave narrow accounts of the class of potential inventions that should be regarded as patent-eligible under Section 101 of the Patent Act, in the case of medical tests on the one hand, and financial analysis on the other. The case of Oil States Energy Services, LLC v. Greene’s Energy Group, LLC holds that a patentee is not entitled to a jury trial in an Article III court to determine patent validity in an infringement action if the defendant moves the adjudication before the Patent Trial and Appeal Board (which is staffed by administrative judges appointed by the head of the Patent and Trademark Office). Finally, eBay Inc. v. MercExchange, LLC imposes important limitations on the ability of a patent holder to obtain an injunction, even in the case of deliberate patent infringement.
First Page
699
Volume
71
Publication Date
2020
Recommended Citation
Epstein, Richard A., "Patent Originalism" (2020). Faculty Articles. 224.
https://gretchen.law.nyu.edu/fac-articles/224
