Courts and the Patent System

7 Pages Posted: 5 Aug 2009 Last revised: 25 Aug 2010

See all articles by Dan L. Burk

Dan L. Burk

University of California, Irvine School of Law

Mark A. Lemley

Stanford Law School


Innovation and patent law work differently in different industries. To some degree, the courts’ interpretations of patent and trademark law accommodate those differences. It is not much of an exaggeration to say that the patent system must bend or break: a patent system that is not flexible enough to account for these industry differences is unlikely to survive, let along accomplish its stated goals. We believe the system has the flexibility to do both, but this will require the courts to better recognize and use the policy levers they have been given.

Keywords: PHOSITA, Person having ordinary skill in the art, Patent Act, PTO, Patent and Trademark Office, defensive patents, IP, intellectual property, property rule

JEL Classification: F13, H10, K11, O31,O34

Suggested Citation

Burk, Dan L. and Lemley, Mark A., Courts and the Patent System. Regulation, Vol. 32, No. 2, pp. 18-23, Summer 2009, Stanford Public Law Working Paper No. 1432452, UC Irvine School of Law Research Paper No. 2009-29, Available at SSRN:

Dan L. Burk (Contact Author)

University of California, Irvine School of Law ( email )

4500 Berkeley Place
Irvine, CA 92697-1000
United States
949-824-9325 (Phone)

Mark A. Lemley

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

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