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2013-04-03 RJM - IP: Sci Ev in Pat Lit - Spring 2013 1

Please take your seat

RobEmilyScottHernan

Helio Andy [Reddy] Jenn{via Skype: Jennifer}

AsaChinyerePatrickDavid

RJM

DOOR

Whi

tebo

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Scientific Evidence and Expert Testimony: Patent LitigationLAW 343 / GENETICS 243

Prof. Roberta J. MorrisRoom 218 Crown Quad

[email protected]

On the web:http://www.stanford.edu/~rjmorris/sciev.13/

andEmail Group [email protected]

mailto:[email protected]

http://www.stanford.edu/~rjmorris/sciev.13/

http://www.stanford.edu/~rjmorris/sciev.13/

mailto:[email protected]


Today’s Agenda• Who We Are • What We Will Do in this Seminar

• Your Comments on the Course Description• How the Seminar Will Work• Your Patents and Your Comments

• 8:30 Break (timekeeper needed) • 8:40 Resume

• Begin Review of / Introduction to Patent Law: P!=C!=T; WHAT IS A PATENT (CONCRETE).

• ~9:45 Adjourn


Housekeeping

Helio, Jenn, Rob, Andy, Chinyere, David, or Asa:

If you don't know how to remove the HTML copies from your messages,

please ask Patrick, Jennifer, Emily, Scott, or Hernan

because they seem to know!

(based on your personal questionnaires)


FEEL FREE TO INTERRUPT ABOUT

In the slides I will use the Mona Lisa to indicateTERMS OF ART.

Use such terms carefully. They don’t always mean what you think they mean.Anyone who DOES know what they mean may misunderstand you if you misuse them.

TERMS OF ART


2 students {Rob and Emily}will keep a list of the day's Terms of Art (you don't have to define them, but your colleagues may ask you about them)

1 student {Scott} will keep a list of "professor's homework" and of any promises made by students to be PIs Volunteers? Lists should be emailed to me by Thursday midnight*

Rotating Jobs - New This Year!


Who Are You? - 1Seating – Different every week for the first few

weeks. Today: Ordering principal? Two different fonts?

Handout - Student List3 law students8 science Ph.D. candidates

1 auditing post-post doc

Axess: Bring any problems to my attention. I don’t usually check it myself until the end of the quarter.


Who Are You? - 1(pronunciation)

"Dearest creature in creation..." The Chaos (with the original font

variations, or here, without) was written and revised in the 1920s and 30s by a Dutch linguist and teacher of English, Gerard Nolst Trenité (1870-1946).

http://www.spellingsociety.org/journals/j17/caos.php

http://www.mipmip.org/tidbits/pronunciation.shtml


Who Are You? - 2Introduce Yourselves• Whose side are you on: patent owner (PO) or accused infringer (AI)?Answer with your attitude TODAY. This will not affect simulation assignments.• What should we know about you that is not on the handout, and1. that is on your resume? 2. that is not on your resume? You have time to think about your

answers because I'll go first, and then I'll poll you about a few things.


Who Am I? http://www.stanford.edu/%7Erjmorris/CVLAW.PDFThe 5 Movies in my top 3 List , in no particular order except for the firstThe Princess BrideCasablanca (chosen by someone in class)

Annie HallThe Shawshank Redemption (ditto, and it's why I ask this question)

The Naked City (old B/W film noir: really good)Adam's Rib (& the whole category 'courtroom movies' ...)It Should Happen to YouFargo may be there, but maybe it's one of the 20 in the top 10.I might add ARGO, but it's too soon to tell

http://www.stanford.edu/~rjmorris/CVLAW.PDF

http://www.stanford.edu/~rjmorris/CVLAW.PDF


Patented Coffee Sleeve


Poll

robemilyscotthernanjennreddyandyheliodavidchinyereasajennifer

•Before you did the first assignment, had you ever noticed patent numbers on objects and packaging? •Afterwards, did you see them everywhere?•{4 of you were looking at a patent for the first time}•Since college, how many classes have you taken that had less than 15 students? How many in law school? •Did you take calculus in high school?•Have you ever seen The Visual Display of Quantitative Information?

Volunteer needed to record the results.


Patented Coffee Sleeve

http://www.edwardtufte.com/tufte/books_vdqi

http://www.edwardtufte.com/tufte/books_vdqi


Now: Who are You?

robemilyscotthernanjennreddyandyheliodavidchinyereasajennifer

1. PO or AI2. What should we know about you that's on your resume?3. What should we know about you that's NOT?4. Anything else you'd like to add?


Questions about Course Description - 1(order of comments is random within groupings)

SimulationsPatrick: How do we find balanced issues regarding patent infringement? Are the accused infringers always simulated or are there opportunities to find actual examples?Rob: What will be happening in class in the latter part of the course, “devoted to work on the final projects?” Will it be a space for meeting with our teammates, or will there be lecture and other discussion?Asa: How are the teams for the final project chosen? Do we get to pick the type of patent case/experts we’re using? Are the lawyers going to play lawyers?Chinyere: The class seems very engaging. I like the fact that it is very collaborative and that students will get the chance to meet regularly with the instructor. I also like the realworld application through simulation with practicing patent lawyers. From the course description, I believe I will learn a lot.David: I like that the trial documents involving scientific evidence in patent litigation will be considered in the class and that I will have a chance to participate in the simulations of expert testimony in a patent case.


Who Are You? Questions about Course Description - 2

Course Coverage - ProsecutionJennifer: Will we only be learning about patent litigation in this seminar, or will we also touch on patent prosecution? Also, I am intrigued with the up-coming change from “first-to-invent” to “first-to-file” and wonder how it will impact US research and future patent jobs. Will we talk about this at all?

Hernan: Something I would find particularly interesting would be to discuss/look into the intersection between publication and patent writing. My understanding is that nothing that is published in a peer review journal can be included in a patent, but I have seen many cases where devices “deeply inspired by” published work have been turned into patents. I think this would be of particular interest for the future due to the explosion of research/patents coming from the nanotechnology field, which has skyrocketed over the last five years and it will only continue to increase.


Who Are You? Questions about Course Description - 3Skills for Crossing Disciplines / Are patent cases different? - part 1Emily: I wonder what sort of scientific background most lawyers or law students involved in patent law have, and what skills are the most important for getting information or constructing an argument about a topic outside one’s realm of expertise.

Jenn: I was intrigued by the following quote: In other areas of the law where scientific experts are used -- medical malpractice, environmental law, criminal law -- the science itself is often in dispute. In patent cases, however, the parties generally agree on the science.”In experimental science, one crafts arguments for one particular thesis or another based on one’s own data and previous data, perhaps not unlike how in law one crafts arguments based on precedent. However, one’s thesis may change over time, so one must work hard on both defining the goal of the argument and developing a structure that supports it. I am interested in understanding how that process works in the patent setting described above, when one starts with a defined goal, and then works to find a structure that supports this goal.

Scott: I’m excited to see how knowledge and understanding of scientific issues will help to inform legal strategy. I’m also curious to hear about the different role scientific evidence plays in patent law suits as opposed to other types of lawsuits.


Who Are You? Questions about Course Description- 4

Skills for Crossing Disciplines / Are patent cases different? - part 2

Andy: I am particularly intrigued by the course announcement’s description that graduate students “will also encounter the differences and similarities in the scientist's and the lawyer's perspectives about truth and proof” and that they will “help the litigators to choose which legal issues to press and which to concede, and to be aware of how the complications of the science might help, hurt, obscure or reveal how the law should be applied to the facts.” Exposure to different methods of analysis and thought is a motivating factor in my desire to take this course. I am looking forward to learning how to apply a complementary, legal reasoning method to my scientific one.

Helio: In addition to simulations of expert testimony, will we learn about how scientists can get involved in the legal process and help inform lawyers/judges/etc on the relevance/implications/-significance of various laws and processes (outside of witness testimony in court cases)?


• Do A work and receive a recommendation and networking help any time, for life. See draft of How the Seminar Will Work (handout)

• Weekly Assignments and Comments and final project Critiques:

Better Late than Never?

What You Will Do in this Seminar -1

http://www.stanford.edu/~rjmorris/sciev.13/HOWWORK.HTM

2013-04-03 RJM - IP: Sci Ev in Pat Lit - Winter 2013 19

NOrequired.

Better Late.than Late That’sNever? BetterNever



• Schedule/Syllabus – short form of assignments • Only *9* Wednesdays in the quarter• Attend a trial in San Jose - we hope - with real live

examination and cross-examination of an expert – OPTIONAL

• Instant Patent Law? Next week? Week 3?• Simulations• Every week: ~ 8:30: Snack (healthy or not, or both?)

Never late. That’s required.

• Weekly Assignments and (sometimes) Comments• Critiquing of other students’ simulations


http://www.stanford.edu/~rjmorris/sciev.09/index.htm


Deadlines:Mine as well as Yours

My posting the next week’s assignment By Friday evening

Your assignment? Monday at 11:59 pm*.

Your comment?Wednesday at 10:30 am.

Critiques?6/7 at 11:59 pm *

Remember: LATE WORK IS NOT ACCEPTED.


Today’s Assignment - 1

SOMETHING WITH A PATENT NUMBER ON IT

NB: The patent marking statute, 35 USC 287, was amended in the American Invents Act. See next slide. I may have to abandon this assignment in a few years!

http://www.stanford.edu/~rjmorris/sciev.12/ASSIGN/0112.HTM


Today’s Assignment - 235 USC 287(a) Limitation on damages and other remedies; marking and notice Patentees,

and persons making, offering for sale, or selling within the United States any patented article for or under them, or importing any patented article into the United States, may give notice to the public that the same is patented, either by fixing thereon the word "patent" or the abbreviation "pat.",

together with the number of the patent, or by fixing thereon the word "patent" or the abbreviation "pat."

together with an address of a posting on the Internet, accessible to the public without charge for accessing the address, that associates the patented article with the number of the patent,

or when, from the character of the article, this can not be done, by fixing to it, or to the package wherein one or more of them is contained, a label containing a like notice.

In the event of failure so to mark, no damages shall be recovered by the patentee in any action for infringement,except on proof that the infringer was notified of the infringement

and continued to infringe thereafter, in which event damages may be recovered only for infringement occurring after such notice. Filing of an action for infringement shall constitute such notice.

Effective for lawsuits pending on or filed after 9/16/11.Thanks to Jenn for inspiring me to find the amendment.

HANDOUT



Today’s Assignment - 2


Why?Why?

Why?





Today’s Assignment - 3If you used the more illuminating method, what did you learn?



Today’s Assignment - 4Read claim 1. Select two words or phrases you think may be important. A single word may be fine. A phrase should be a maximum of 5 consecutive words. The two selections should address different concepts. ***Q. 06.2 ... Still using the html/text version of the patent, use word-search to find your selections in the specification, that is, the part of the patent between the end of the drawings and the start of the claims. Do NOT include the Abstract or the other claims in your search. (If you are a terrific skimmer, you can use your eyes alone on the pdf, but you should probably check yourself with word-search.) Highlight the occurrences of your selections on the printout that you will bring to class.

Q. 06.5 If either of your selections does not appear word-for-word in the specification, does something similar appear? Discuss, with citations. sciev.13/ORD_PAT.HTM

next time start here


http://www.stanford.edu/~rjmorris/sciev.13/ORD_PAT.HTM

Documents

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