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Virginia Journal of Law & Technology



Volume 11, Number 2, Spring 2006



Published: Thu, 28 Sep 2006 09:31:00 EST

 



Two Unsettled Aspects of the Federal Circuit's Patent Jurisdiction

Thu, 28 Sep 2006 09:31:00 EST

Volume 11, Number 2, Spring 2006
11 Va. J.L. & Tech. 3 (2006) - The Federal Circuit's views on its appellate jurisdiction in patent cases have become questionable in two areas, which the article elucidates. One is in cases that involve only transient patent claims, i.e., claims that were at one time in the case but were dropped before judgment, leaving only non-patent claims remaining. As seen in decisions following Zenith Electronic Corp. v. Exzec, Inc., 182 F.3d 1340 (Fed. Cir. 1999), the court apparently is of the view that it retains exclusive appellate jurisdiction in such situations. That view is logically flawed and does not comport with the purposes for which the Federal Circuit was created in 1982. The second problematic area is situations in which patent and non-patent cases were consolidated in the district court for all purposes. The Federal Circuit views the effect of such consolidations as merging the component cases into a large one, with the exclusive route of appeal from any judgment therein being through the Federal Circuit. Supreme Court authority and the better reasoned approach indicate that consolidation does not affect jurisdiction; the cases retain their separate identities after consolidation and should follow the respective appeal routes they would have had absent the consolidation. Rulings in this area are apt to have a substantial impact in patent-antitrust litigation.



Managing Biotechnology's [R]evolution: Has Guarded Enthusiasm Become Benign Neglect?

Thu, 28 Sep 2006 09:31:00 EST

Volume 11, Number 2, Spring 2006
11 Va. J.L. & Tech. 4 (2006) - Several commentators have emphasized the distinctiveness of "biotechnology" and the consequent need for appropriately tailored responses by legal institutions. After initially identifying the imprecise boundaries of the field, this Article gauges such assessments by reviewing several therapeutic, agricultural, and other industrial applications of biotechnology. Because this is not a monolithic enterprise, our multifaceted regulatory response reflects the potentially vast and varied reach of these innovative techniques. Biotechnology has ushered in profound changes at some levels (and may require special attention from regulators), but, in other respects, it has shown remarkable continuity with the techniques that preceded it. Legal institutions must try to avoid getting blinded by the hype and inappropriately sweeping in - and perhaps overregulating - both the novel and the mundane applications of this still relatively young science and newer ones (such as nanotechnology) just on the horizon.