Supreme Court smartphone decision leaves questionable test
There is also the question of whether the test helps protect intellectual property. R Street Institute senior fellow Charles Duan says the test leaves a couple critical questions unanswered that are important for many reasons like defining the responsibilities of the U.S. Patent and Trademark Office.
“I think there are two questions that come along with the test that aren’t necessarily addressed,” Duan said during the discussion. “Who’s job is it to prove one way or another how that test works out? What is the burden of proof? Is it the infringer’s job or the patent owner’s job? And second, who is going to make the final decision? Is it going to be a jury or is it going to be a judge?”