by Jason Rantanen
I've got a new essay (with Lee Petherbridge) in which we provide an early analysis of what we think are substantial law and policy concerns raised by Therasense. In the essay we argue that Therasense could have a much more significant, complex, and nuanced impact on the legal infrastructure of American innovation than the opinion for the court appears to appreciate. In view of these complexities, we explain why the court may be too sanguine in its expectations for the instrumental effect of its decision.
In a nutshell, we consider the possible impact of Therasense on the efficiency of patent prosecution, on the amount of low quality patents, and on the cost of patent litigation. In view of the significant impact that newly appointed judges had on the outcome of the appeal, we also consider what, if anything, Therasense may reveal about the characteristics of the new Federal Circuit.
The essay is available here. As this is a draft, we welcome any comments. They can be provided in response to this post or sent to me at rantanen [at] uchastings [dot] edu.
