The Principle of Fair Notice: Is it Prudent Guidance for the Future of Patent Law?

Abstract

This Comment explores how the Supreme Court and the United States Court of Appeals for the Federal Circuit have interpreted the United States patent statute, which is codified in title 35 of the U.S.C., to accomplish the proper balance between these competing interests. Section II explains in greater detail the tension between the patentee and the principle of fair notice and how this tension relates to defining the proper scope of a patent. Section III reviews three cases in which the Federal Circuit and the Supreme Court shaped concepts which help to define the scope of a patent. These cases involve both statutory and common law, with each decision motivated by the principle of fair notice. Section IV points out Congress's seemingly ambivalent stance on the issue of fair notice as reflected by the Patent Marking and Notice Statute.  This section also reviews a Federal Circuit case in which the court strictly interpreted this Patent Marking and Notice Statute contrary to congressional intent. This Comment then concludes that the courts' increased reliance on the principle of fair notice has tipped the balance in disfavor of the patentee and that further tipping in this direction by the courts is inconsistent with congressional intent, which is threatening to the nation's economic welfare. Finally, this Comment will suggest that to achieve continued technological and economic leadership in the United States, the courts must maintain the balance between the interests of both the patentee and the public when attempting to solve future problems that arise in patent litigation.