Abstract

http://ssrn.com/abstract=1536107
 
 

Footnotes (204)



 


 



A Simple Conveyance Rule for Complex Innovation


Adam Mossoff


George Mason University School of Law


Tulsa Law Review, Forthcoming
George Mason Law & Economics Research Paper No. 10-05

Abstract:     
This article, written for the Eighth Annual Legal Scholarship Symposium celebrating the work of Richard A. Epstein, assesses Epstein’s advocacy of a default rule for patent conveyances. The article first explains how nineteenth-century patent doctrine supports Epstein’s argument for a conveyance default rule, detailing how early courts adopted for patents the same conveyance default rule they applied to real property. In real property, the default rule provides that, barring words of limitation or restrictive covenants, a conveyance transfers the entire estate, i.e. fee simple. Since patents are property rights – early courts often analogized patents to real property – a similar rule was adopted for patent conveyances. This historical case law confirms Epstein’s critique of the recent decision in Quanta Computers v. LG Electronics as unprecedented “formalism,” because the Quanta Court adopted a mandatory rule that all conveyances as such exhaust all property rights in patents. In shifting from a default rule to a mandatory rule, Quanta undermines the rights of patentees to use and dispose of their property.

The article then discusses some potentially costly complications arising from Epstein’s support for rule-of-reason antitrust review of patent conveyances. The virtue of the conveyance default rule, according to Epstein, is that it is a simple matter of administration. These gains in low administration costs, however, may be lost given the inherent complexity in the ex post application of rule-of-reason antitrust standards to innovative commercialization of inventions. The inherent unpredictability and indeterminacy in such contextual assessments threaten the dynamic efficiencies achieved by the patent system. This is especially salient when rule-of-reason standards require unsophisticated courts to predict and to regulate new, innovative commercial practices arising from inventions. This counsels against antitrust review of patent conveyances, even in Epstein’s second-best world of simple rules for complex innovation.

Number of Pages in PDF File: 32

Keywords: 1836 Patent Act, Bloomer v. McQuewan, Joseph Story, Lucas v. South Carolina Coastal Commission, patent exhaustion, Penn Central inquiry, Potter v. Holland, regulatory takings test, Roger Taney, social utility, takings clause, utilitarianism

JEL Classification: D23, H82, K11, K21, L40, O34

Accepted Paper Series





Download This Paper

Date posted: January 18, 2010  

Suggested Citation

Mossoff, Adam, A Simple Conveyance Rule for Complex Innovation. Tulsa Law Review, Forthcoming; George Mason Law & Economics Research Paper No. 10-05. Available at SSRN: http://ssrn.com/abstract=1536107

Contact Information

Adam Mossoff (Contact Author)
George Mason University School of Law ( email )
3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-9577 (Phone)

George Mason Law School Logo

Feedback to SSRN


Paper statistics
Abstract Views: 1,134
Downloads: 95
Download Rank: 166,898
Footnotes:  204
Paper comments
No comments have been made on this paper

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo1 in 0.422 seconds