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http://ssrn.com/abstract=1895681
 
 

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The Fractioning of Patent Law


Mark A. Lemley


Stanford Law School

2012

Intellectual Property and the Common Law, Shyamkrishna Balganesh, ed., Cambridge University Press, 2012
Stanford Public Law Working Paper No. 1895681

Abstract:     
Patentees overwhelmingly lose their cases, despite a seeming host of procedural advantages. The same is not true of other IP plaintiffs. Why? In this article, I suggest that the explanation lies in the "fractioning" of patent law into smaller and smaller issues. Claim construction after Markman is the clearest example, but there are others. We no longer decide in a holistic manner what a patent claim covers. Instead, we decide what each word of a claim covers. Because there are more and more such issues, and the patentee must win each of them, patentees face a form of multiple jeopardy. It is ironic that patent claims, developed to broaden and strengthen the patent right, have instead become obstacles to the patentee's success.

Number of Pages in PDF File: 10

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Date posted: July 26, 2011 ; Last revised: July 22, 2013

Suggested Citation

Lemley, Mark A., The Fractioning of Patent Law (2012). Intellectual Property and the Common Law, Shyamkrishna Balganesh, ed., Cambridge University Press, 2012; Stanford Public Law Working Paper No. 1895681. Available at SSRN: http://ssrn.com/abstract=1895681 or http://dx.doi.org/10.2139/ssrn.1895681

Contact Information

Mark A. Lemley (Contact Author)
Stanford Law School ( email )
559 Nathan Abbott Way
Stanford, CA 94305-8610
United States
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