Brett Rosenthal

91 Texas L. Rev. 1227

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In this Note, Mr. Rosenthal contends that a vigorous challenge against a patent’s validity fully vindicates the public right to access ideas in the public domain and should preclude successive challenges by future infringers.  Part I looks at the foundational tools of group litigation—joinder and consolidation—as applied in patent law, including recently adopted restrictions in the America Invents Act of 2011.  Part II asks whether the Rule 23 class action allows certification of present and future infringers for validity determinations.  Part III examines whether the “public law” nature of the validity inquiry reinvigorates the notion of “virtual representation” rejected in Taylor v. Sturgell.  Part IV analyzes whether procedural rules that facilitate the establishment of patent validity further the substantive goals of patent law and the imperatives of wise judicial administration.