Patent Law's Parsimony Principle
Alan J. Devlin
Latham & Watkins
January 11, 2010
Berkeley Technology Law Journal, Vol. 25, p. 1693, 2011
How can society spur an optimal level of innovation when different inventors are driven by wholly disparate motivations? Inevitably, a sufficient reward to some will be wholly inadequate to others. Because policymakers lack cost-effective means by which to ascertain inventor- or even industry-specific reservation rewards, patent law is forced to operate in an indeterminate environment. Given the law’s uniformity, such that doctrine is largely applied in a one-size-fits-all manner, the risk of under- and overcompensation seems systemic. How then has the patent system attempted to achieve its constitutional mandate of promoting the useful arts?
This Article seeks to provide a positive explanation of the patent system as adhering to a parsimonious path. The Article explains how patent law has largely discarded a maximalist approach in spurring innovation, electing instead to narrow property rights and thus to prevent patentees from being over rewarded. Beyond this novel macro view of patent law, which can in itself explain some counter-intuitive features of the modern IP system, the parsimony principle can clarify ambiguous issues that are presently before the courts. The Supreme Court is agonizing over the question of patentable subject matter, which is an issue that has confounded it and every other U.S. court that has had occasion to address it. The question of optimal damages in the event of proven infringement is proving to be equally troublesome. Patent law’s parsimony principle could cast light upon these and other amorphous problems.
Number of Pages in PDF File: 58Accepted Paper Series
Date posted: January 11, 2010 ; Last revised: September 1, 2011
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