How To Return To One Patent, One Invention: Part 2
By Michael Powell, Michelle Ann Clark and Patrick Schmidt (November 2, 2018, 1:32 PM EDT) -- In part one of this article, the authors set out a framework for analyzing the hypothetical negotiation date in the context continuation patents. Here in part two, the authors contend logic and fairness dictate that courts should adopt a bright-line rule that in cases involving continuation patents, the hypothetical negotiation date should presumptively be the later of the date of issuance of the first issued patent in the lineage or the date on which the acts alleged to constitute infringement began. Such a rule is desirable for multiple reasons.
First, requiring that the hypothetical negotiation date be the same for the parent...
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