Judge Posner on Patent and IP Litigation

I’ve always had a fondness for patent and IP law, as my late grandfather, Don Johnson (1921-1992), was a patent attorney and partner for many years with a boutique IP law firm (now Hovey Williams LLP) in Kansas City. (While I read history instead of electrical engineering in college, I enjoyed pursuing my IP passion with numerous IP, copyright, music, and digital IP classes at KU Law.)

Judge Posner (7th Circuit Court of Appeals in Chicago) recently gave this interview on patent and IP litigation, focusing on patent damage and remedy issues. While Judge Posner doesn’t have a technical background (he read English at Yale, graduating Phi Beta Kappa), he often has keen legal insights. Many areas of law have benefited or been clarified from the information tsunami flowing from his prodigious pen. Judge Posner’s interview showcases his formidable intellect, his common sense/pragmatic approach, and his seamless interweaving of real life examples and abstract legal ideas.

About the time my grandfather retired from his law firm, Congress authorized the Federal Circuit (sitting in Washington D.C.), to hear patent law appeals. Patents (and copyrights and trademarks) are governed primarily by federal law, with some state law counterparts for copyrights and trademarks, and international components in our increasingly globalized world. The U.S. Patent and Trademark Office handles all trademark registrations and patent applications. When litigation arises, the case goes to federal court. Most federal cases go to a (regional) federal court of appeals – so Kansas cases go to the 10th Circuit (in Denver), while Missouri cases go to the 8th Circuit (in St. Louis) – but patent law often hinges on technical scientific and engineering issues (prior art adds a dimension of complexity to precedents) and is rapidly evolving as the state of the art advances, so Congress set up the Federal Circuit (made up exclusively of patent attorneys) to hear these complex appeals. Every year or two, a Federal Circuit case arrives at the U.S. Supreme Court for the Justices to analyze an IP issue with constitutional implications (e.g. can you patent a human gene?). Posner’s remarks touch on a wide range of questions running the gamut of the patent law process, from the early stages – R&D, what should be patentable, etc – and the later stages – patent appeals, enforcement and exploitation of patent portfolios, varying degrees of vigorousness in prosecuting infringement, etc.

If my law firm, Johnson Law KC LLC, can help you or your company with your IP needs – copyrights, trademarks, related litigation, or patent litigation, call (913-707-9220) or email me (steve@johnsonlawkc.com) for a convenient, free consultation. My firm is experienced at helping clients navigate the complex twists and turns of IP law, while adding value to clients’ creative arts and IP, and provides friendly, affordable counsel for your legal needs.

(c) 2013, Stephen M. Johnson, Esq.

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