Thomas Ewbank 1849-1852

Thomas Ewbank, third Commissioner of Patents, was born of humble parentage in Durham, England, March 11, 1792. He was apprenticed in boyhood to the trade of sheet metal working; and from 1812 to 1817 was employed as a tin-smith in London. There he developed the belief that monarchical institutions limited ones capabilities, and so he emigrated to the United States in 1819 and settled in New York. He then engaged in the manufacture of copper, lead and tin tubing for sixteen years and obtained patents thereon. Having attained a modest competency from the business of tube making, he devoted his entire attention in the next few years to travel, science, literature, the history of invention, and its future development. In 1845-48, he visited South America, not merely as a pleasure seeking traveler, but with a mind alert to the lessons to be learned from a wider experience of natural phenomena and the industrial arts of remote races. He returned with a collection of objects from Brazil that became widely known as the "Ewbank Collection." The lessons of this voyage were subsequently published in a volume entitled "Life in Brazil: A Journal of a Visit to the Land of the Cocoa and the Palm."


Does Patent law allow plaintiffs too many bites at the apple?

Jason D. Reinecke

The Federal Circuit’s current rule on claim preclusion doesn’t bar a plaintiff from bringing a second patent infringement lawsuit against the same defendant and accused conduct if the plaintiff alleges infringement of a different patent in the second suit. This Article argues that the Federal Circuit’s rule is inconsistent with the widely adopted transactional approach to claim preclusion as described in the Restatement (Second) of Judgments and adopted by most courts. This Article discusses three rules -the current rule, a rule that properly implements the transactional approach, and a middle-ground rule -along with their policy implications. In short, if the Federal Circuit adopted a rule consistent with the transactional approach, the goals of claim preclusion may be better served. A transactional rule would, among other things, provide parties with increased finality and reliance, often provide increased judicial and private litigation efficiency, and minimize the chance of multiple recovery and excessive recovery of damages. Because a transactional rule offers such advantages, the Federal Circuit’s current rule on claim preclusion warrants reconsideration by the Federal Circuit or the Supreme Court.


EDMUND BURKE 1845-1849

The second Commissioner of Patents was born at Westminster, Vermont, Jan. 23, 1809. He studied law, was admitted to the bar in 1829, practiced at Newport, New Hampshire, established the New Hampshire "Argus," and edited it for several years. From 1839 to 1845 he was a member of Congress. Appointed Commissioner of Patents, May 5, 1845 by President Polk, he served ably and faithfully in this office until May 9, 1849, after which he became for a brief period official editor for the "Union" in Washington, D. C., and later resumed the practice of law at Newport, New Hampshire, and Boston, Massachusetts.


Determining The “Article of Manufacture” Under 35 U.S.C. § 289

Perry Saidman, Elizabeth Ferrill, Damon, Neagle, and Tracy Durkin

For the first time in more than 100 years, on December 6, 2016, the Supreme Court decided a case involving a design patent. The case, Samsung Electronics Co. v. Apple Inc., 137 S. Ct. 429 (2016), involved the interpretation of 35 U.S.C. § 289, which says that an infringer is liable to the design patent owner to the extent of his total profit for sales of any article of manufacture to which the patented design has been applied. The Supreme Court decided that an article of manufacture under Section 289 may be the end product as sold by the infringer, or it may be a component of the end product. This decision left open the question of how to decide what the article of manufacture is in any given case, including the one at bar. Our article, being a collaborative effort among a small group of design patent specialists, proposes a test for determining the relevant article of manufacture in any given case, and also proposes considerations for determining the total profit once the relevant article of manufacture has been identified.



When the Act of 1836 created the new office of Commissioner of Patents, the appointment of the then Superintendent of Patents, Henry L. Ellsworth, to the Commissionership proved both logical and wise. As Superintendent of Patents since his appointment in 1835, he had proved his ability by substituting order for chaos in the administration of a department which had never previously been conducted in a scientific and business-like manner. It is generally thought that the responsibility of initiating the policy under the new law, and new organization, was well placed.


Note: The Application of Big Data Analytics to Patent Litigation

Chloé Margulis 

This article defines the current gap between big data analytics and patent litigation. It discovers how big data analytics can be applied to the patent industry to create more effective risk analysis, an early warning system, and preventative strategies for inside and outside of the courtroom. Big data has the potential to modify current practices in the patent industry, namely those geared towards aiding patent examiners, attorneys, inventors, jurors, and judges. It also offers a solution to the threat that patent monetizers pose on smaller companies and inventors, who often lose time and money in these sometimes unavoidable lawsuits. This research examines the application of big data in the healthcare industry for real-time results and preventative measures. These actions set a good precedent for further diffusion into other industries, such as patent law. Features for future implementation and project development are presented as a roadmap to create a universal big data analytics system for the patent industry.



James Chamberlayne Pickett was born in Fauquier County, Virginia, on February 6, 1793. His family moved to Kentucky when he was a young boy. He attended the best schools, including the U.S. Military Academy in West Point, New York. He served in the army during the War of 1812. 

Pickett practiced law in Kentucky and was editor of a newspaper. He married Ellen Desha, daughter of Kentucky’s governor. He was elected to the Kentucky legislature, after which he spent four years in South America as a U.S. diplomat. He was fluent in several languages and a prolific writer on scientific subjects and diplomatic history.


Fine China? A Look Into Chinese Intellectual Property Infringement, Treaty Obligations, And International Responses

Kevin Eugene Thomas Cunningham Jr.

China has garnered the reputation of being the world’s largest exporter of infringing good, as well as being a place where property rights are notoriously difficult to enforce. The international community has a vested interest in curbing infringing activity, however, it has proven difficult to get China to both create new domestic law allowing for increased protections, as well as enforcing those laws whenever they are eventually implemented. This paper conducts a brief survey of the Chinese historical underpinnings surrounding their current intellectual property law regime. It then goes on the examine many of the treaties to which China is a signatory, as well as the unique issues that China faces when attempting to enforce its domestic law and meet international obligations. Finally, I will analyze international responses to China’s lack of enforcement, followed by an analysis of what worked, what didn’t, and what can be done in the future to achieve the desired result of increased protection for intellectual property.

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