Abstract

http://ssrn.com/abstract=705342
 
 

Citations



 


 



Alice in Wonderland Meets the U.S. Patent System


Jay Dratler Jr.


University of Akron - School of Law


Akron Law Review, Vol. 38, p. 299, 2005

Abstract:     
This article uses the FTC's October 2003 white paper on the U.S. patent system as the point of departure for a plenary critique of the system from an economic perspective. Taking the fresh viewpoint of "Alice in Wonderland" - an Englishwoman familiar with the Statute of Monopolies and comfortable with quantitative science and mathematical logic - it looks at the system's two most fundamental economic questions: (1) what things are patentable, and (2) what a patent protects. In each case it demonstrates, by detailed reference to current U.S. patent law, how far the U.S. system is from providing clear, let alone economically rational, answers to those questions. It then proposes more fruitful economic approaches. On the subject-matter question, it proposes a test based upon technological risk (as distinguished from market risk), defined as a risk of total failure for reasons other than market acceptance. On the question of breadth, it proposes abandoning the vain quest for an effective formalism and instead judging the breadth and infringement of patents in a single proceeding with expert witnesses (perhaps including neutral, court-appointed experts), based on substantial scientific, technological and economic effects. The article ends by listing the new innovative industries that have arisen since 1952, when the present patent statute was enacted, and noting how little that statute differs in substance from the patent exception to the Statute of Monopolies enacted nearly four centuries ago. It concludes with an analysis of the pros and cons of the FTC White Paper from an economic perspective and a plea for plenary revision of U.S. patent law.

Keywords: patents, patent system, invention, innovation, economics, law and economics, monopoly, antitrust, competition, competition policy, free markets, FTC, subject matter, nonobvious, claims, scope of patent, patent law revision, Statute of Monopolies

JEL Classification: K21, K22, K41, L12, L40, O32, O33, O34, O38

Accepted Paper Series


Not Available For Download

Date posted: April 22, 2005  

Suggested Citation

Dratler, Jay, Alice in Wonderland Meets the U.S. Patent System. Akron Law Review, Vol. 38, p. 299, 2005. Available at SSRN: http://ssrn.com/abstract=705342

Contact Information

Jay Dratler Jr. (Contact Author)
University of Akron - School of Law ( email )
150 University Ave.
Akron, OH 44325-2901
United States
Feedback to SSRN


Paper statistics
Abstract Views: 753

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.313 seconds