Empowering Inventors

Abstract

Focusing on the intersection of commercial law and patent law, leading scholars often ask: When, if ever, should patent holders be allowed to contract around patent law? This is an unsettled question, both theoretically and doctrinally. While this Article does not offer an opinion on whether patent holders should be allowed to use a variety of commercial law arrangements to avoid the application of any particular patent law doctrine, it does not do so out of concern that much of the recent conversation conflates the boundaries of patent and contract in an unhelpful way. This leads to confusing debates regarding whether patent holders are using contract law to impermissibly broaden the scope of their patents or control downstream access.

Instead, this Article seeks to redirect scholarly focus to the following question: Why might we allow parties to use contract law to avoid the application of a particular patent doctrine or to achieve a result not permitted by patent law alone? Although patent licensing is nothing new, scholars have largely focused on patent law, leaving the role of contract law in patent licensing undertheorized. This Article aims to begin filling this gap in the literature through the exploration of contract theory from the perspective of those closest to contract law to help determine when to allow scientists, researchers, and inventors—whether in the shadow of patent law or not—to empower themselves through the mechanism of legally enforceable agreements to achieve a wide variety of aims.