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What 'Originalist' Viewpoints May Mean for Patent Law

By Gerald B. Halt Jr. and Bradley M. Brown

The landscape for patent law has changed more quickly over the last five years than it had in preceding decades. The America Invents Act (AIA), which was enacted in September 2011, may be the most comprehensive and significant change to patent law in decades, and recent case law appears to be accelerating changes. For example, Mayo Collaborative Services. v. Prometheus Labs, 566 U.S. 66 (2012), changed how patent-eligible subject matter is determined and what currently is patentable eligible. Alice v. CLS Bank International, 134 S. Ct. 2347 (2014), dramatically changed the landscape for software and internet based technology patents and the law on what is patent eligible subject matter. Samsung v. Apple, 137 S. Ct. 429 (2016), is likely to dramatically change the landscape for damages in design patent infringement. Finally, Life Technologies v. Promega, 197 L.Ed.2d 33 (U.S. 2017), tests the limits of liability and the extra territorial reach of U.S. law for infringement abroad. These cases profoundly changed the way courts and the U.S. Patent and Trademark Office treat patents and patent applications, in Article III courts and administrative agencies.

Is Gorsuch an 'Originalist' Like Scalia?

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