Robert W. Gomulkiewicz, In the Stewardship of Business Model Innovation, 67 Fla. L. Rev. Forum 35 (2015), https://digitalcommons.law.uw.edu/faculty-articles/66
Florida Law Review Forum
enforceability of mass market end user license agreements, patent law, U.S. Court of Appeals for the Federal Circuit
Response or Comment
Patent law scholars often criticize the Federal Circuit because they think it favors patentees. The Supreme Court has reinforced this scholarly critique by taking an usually large number of patent cases in recent years, often reversing the Federal Circuit and admonishing it to avoid patent law exceptionalism.
The Federal Circuit’s perceived patent law exceptionalism motivated Professor Xuan-Thao Nguyen to write her article In the Name of Patent Stewardship: The Federal Circuit’s Overreach into Commercial Law. Professor Nguyen’s concerns about damage to commercial law are not trifles. When it comes to the stewardship of our information economy, the laws that support the commercialization of inventions are just as important as the laws that govern the creation of inventions. Thus, commercial law needs tending just as much as patent law.
In the Name of Patent Stewardship focusses on the Federal Circuit’s “extensive overreach” into state contract, secured transactions, fraudulent conveyance, and trust laws. This Response takes a more optimistic—but still guarded—view of the Federal Circuit’s application of state contract law. Professor Nguyen looked at purchase and sale agreements for intellectual property assets; my perspective comes from studying the Federal Circuit’s cases related to the enforceability of mass market end user license agreements (“EULAs”). In these EULA cases, the Federal Circuit has proven to be a careful steward of state contract law by avoiding intellectual property exceptionalism.