Challenges for Intellectual Property Law in the Twenty-First Century: Indeterminacy and Other Problems
S. Jay Plager | 2001 U. Ill. L. Rev. 69
In this article, adapted from his symposium keynote speech, Judge Plager examines the challenges confronting patent law in the new century. Positing predictability and clarity as essential ingredients of an effective system of legal rules, Judge Plager discusses the indeterminacy present in the practice and procedure of today's patent law system. He points first to the patent document itself, written in a language foreign to most judges and a source of misunderstandings in patent-claim interpretation. He then discusses the doctrine of equivalents and the difficulty in effectively applying this doctrine to protect patentees while simultaneously reducing the indeterminacy that results from subjective, insubstantial-difference determinations.
Judge Plager examines the challenges faced by participants in the patent system, including the inventors, the Patent and Trademark Office, the market competitors, the professional advisors and patent lawyers, and finally the judges and courts hearing patent cases. Judge Plager discusses the burden on trial courts due substantially to a lack of expertise in the complex area of patent law. He then describes the role of the Federal Circuit, which has exclusive jurisdiction for appeals from the district courts, weaving in interesting points from his knowledge and personal experiences. Throughout the article, Judge Plager offers insight about possible structural changes that could ad-dress the indeterminacy confronting patent law.
*Circuit Judge, United States Court of Appeals for the Federal Circuit, Washington D.C. (appointed 1989); A.B. 1952, University of North Carolina at Chapel Hill; J.D. 1958, University of Florida; LL.M. 1961, Columbia Law School; Professor of Law, University of Florida (1958-64), University of Illinois (1964-77), University of Wisconsin (1967-68), Cambridge University (1980), Indiana University (1977-89); Dean and Professor of Law, Indiana University (1977-84); Counselor to the Under Secretary of the U.S. Department of Health and Human Services (1986-87); Associate Director of the Office of Management and Budget, then Administrator of the Office of Information and Regulatory Affairs, Executive Office of the President of the United States (1987-89).