The Trespass Fallacy in Patent Law

Abstract:     
The patent system is broken; so says the popular press, tech commentators, legal academics, lawyers, judges, congresspersons and just about everyone else. One common refrain is that patents fail as property rights because patent infringement doctrine is not as clear, determinate and efficient as trespass doctrine is for real estate. This essay explains that this is a fallacious argument, suffering both empirical and logical failings. Empirically, there are no formal studies of how trespass functions in litigation; thus, complaints about the patent system’s indeterminacy are based solely on an idealized theory of how trespass should function. In short, the trespass standard represents the "nirvana fallacy." Even more important, anecdotal evidence and related studies suggest that trespass and other boundary disputes between landowners are neither as clear nor as determinate as patent scholars assume them to be. Logically, the comparison of patent boundaries to trespass commits what philosophers would call a "category mistake." It conflates the boundaries of an entire legal right (a patent), not with the boundaries of its conceptual counterpart (real estate), but rather with a single doctrine (trespass) that secures real estate only in a single dimension (geographic boundaries). As all 1Ls learn in their Property courses, estate boundaries are defined along the dimensions of time, use and space, as represented in myriad doctrines like easements, nuisance, restrictive covenants, and future interests, among others. The proper conceptual analog for patent boundaries is "estate boundaries," not fences. In sum, the trespass fallacy is driving an indeterminacy critique in patent law that is both empirically unverified and conceptually misleading. Until the indeterminacy critique is properly modeled and grounded in facts, legislators and courts might want to pause before continuing to make fundamental structural changes to the American patent system.

Number of Pages in PDF File: 25

Keywords: broken patent system, claims, claim construction, vagueness, overbreadth, patent reform, america invents act, software patents, injunctions, economics

working papers series