Courts and the Patent System
Dan L. Burk
University of California, Irvine School of Law
Mark A. Lemley
Stanford Law School
Regulation, Vol. 32, No. 2, pp. 18-23, Summer 2009
Stanford Public Law Working Paper No. 1432452
UC Irvine School of Law Research Paper No. 2009-29
Innovation and patent law work differently in different industries. To some degree, the courts’ interpretations of patent and trademark law accommodate those differences. It is not much of an exaggeration to say that the patent system must bend or break: a patent system that is not flexible enough to account for these industry differences is unlikely to survive, let along accomplish its stated goals. We believe the system has the flexibility to do both, but this will require the courts to better recognize and use the policy levers they have been given.
Number of Pages in PDF File: 7
Keywords: PHOSITA, Person having ordinary skill in the art, Patent Act, PTO, Patent and Trademark Office, defensive patents, IP, intellectual property, property rule
JEL Classification: F13, H10, K11, O31,O34Accepted Paper Series
Date posted: August 5, 2009 ; Last revised: August 25, 2010
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