Copyright (c) 2009 All rights reserved. http://works.bepress.com/ted_field Recent documents in Ted L. Field en-us Fri, 12 Jun 2009 10:17:56 PDT 3600 http://works.bepress.com/ted_field/6 http://works.bepress.com/ted_field/6 Fri, 20 Feb 2009 12:45:48 PST Ted L. Field Practice and Procedure http://works.bepress.com/ted_field/5 http://works.bepress.com/ted_field/5 Thu, 21 Aug 2008 15:46:27 PDT Because of its virtually exclusive jurisdiction over patent cases from the entire country, the United States Court of Appeals for the Federal Circuit faces a unique situation with respect to choice of law for procedural matters in patent cases. Normally, in a non-patent-related case, a district court applies the procedural-law precedent of the U.S. Court of Appeals for the circuit in which the district court sits. However, because the Federal Circuit's jurisdiction is based on subject matter rather than geography, the court has had to choose whether (1) to develop and apply its own precedent to procedural matters or (2) to apply the precedent of the regional circuit court in which the district court sits. Under its current choice-of-law rules, the Federal Circuit by default is supposed to apply the law of the regional circuit to procedural matters. But where the procedural matter in question sufficiently pertains to patent law, the court is supposed to apply its own law under the current choice-of-law rules. Problems have arisen in the application of these rules. For one thing, the Federal Circuit has articulated these rules in many different ways over the years. And this inconsistent articulation has led to inconsistent application. As a result, district courts and litigants in patent cases often cannot be sure which law applies to a particular procedural issue. This article evaluates the Federal Circuit's current rules and contrasts these current rules with several other possible rules. To evaluate these different possibilities, this article considers how each of them advances or retards the institutional interests, needs, and goals of the players involved--namely, the Federal Circuit, the district courts, and litigants. Ultimately, this article concludes that the best approach for the Federal Circuit is to develop and apply its own law to all procedural matters in patent cases. Ted L. Field Intellectual Property Law Practice and Procedure http://works.bepress.com/ted_field/4 http://works.bepress.com/ted_field/4 Mon, 26 Feb 2007 13:46:41 PST Ted L. Field Intellectual Property Law http://works.bepress.com/ted_field/3 http://works.bepress.com/ted_field/3 Mon, 26 Feb 2007 13:43:55 PST Ted L. Field Intellectual Property Law http://works.bepress.com/ted_field/1 http://works.bepress.com/ted_field/1 Thu, 15 Feb 2007 15:47:29 PST In 2004, for the first time ever, the U.S. Court of Appeals for the Federal Circuit applied the little-known temporary-presence defense of 35 U.S.C. § 272 in National Steel Car v. Canadian Pacific Railway. Section 272 provides a defense to patent infringement where a foreign vessel, aircraft, or vehicle enters the United States temporarily to engage in international commerce. The purpose behind § 272 is to prevent domestic patent enforcement from inhibiting international trade. Although this defense may not be well known yet, the Federal Circuit's broad interpretation of § 272 will allow the temporary-presence defense to become more important as the world continues to become smaller and commerce continues to become more global. Indeed, the vehicles that facilitate transnational commerce will increasingly need to rely on § 272 in today's global economy. This Article first traces the history of the temporary-presence defense, from its origins in England and the U.S. Supreme Court in the 1850s through the enactment of § 272 in the United States in 1952. This Article also discusses U.S. and foreign cases applying the temporary-presence defense before National Steel Car. Next, this Article analyzes the decisions of the district court and Federal Circuit in National Steel Car and concludes that the Federal Circuit was correct in broadly interpreting § 272. Finally, this Article considers what may be the limits of the scope of the temporary-presence defense of § 272. Ted L. Field Intellectual Property Law