Toward a Doctine of Fair Use in Patent Law

74 Pages Posted: 13 Aug 2007


The intellectual property laws are becoming increasingly stressed as their largely time-worn doctrines grapple with problems posed by new technology. In this Article, Dean O'Rourke argues that this pressure has become particularly acute in patent law where policymakers have expanded protection without concomitantly evaluating the impact of that move on follow-on innovation. The traditional assumption that patentees will efficiently license their inventions is breaking down as market failures are becoming endemic. Dean O'Rourke argues that to ensure that patent law achieves its constitutional goals, it shuld, like copyright law, use a fair use defense to address problems of market failure. Dean O'Rourke proposes just such a defense that, while modeled on copyright doctrine, accounts for and protects patent law's particular incentive scheme.

Keywords: doctrine of fair use in patent law, fair use, patent law, intellectual property, problems of market failure in patent law

JEL Classification: K11, K19

Suggested Citation

O'Rourke, Maureen A., Toward a Doctine of Fair Use in Patent Law. Columbia Law Review, Vol. 100, No. 5, 2000, Boston Univ. School of Law Working Paper No. 00-12, Available at SSRN:

Maureen A. O'Rourke (Contact Author)

Boston University School of Law ( email )

765 Commonwealth Avenue
Boston, MA 02215
United States
617-353-3123 (Phone)
617-353-3077 (Fax)

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