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Efficient Definition and Communication of Patent Rights: The Importance of Ex Post Delineation

47 Pages Posted: 29 Aug 2009 Last revised: 2 Oct 2009

William Hubbard

University of Baltimore - School of Law

Date Written: August 28, 2009

Abstract

As with any area of law, rights and duties relating to patents should be clearly communicated in an efficient manner. Unfortunately, uncertainty concerning the scope of the rights granted by patents frequently results in expensive litigation. Most proposals for reducing this uncertainty do not examine its root causes and focus only on measures to provide additional clarification in patent applications. Such ex ante proposals are often inefficient because considerable uncertainty is inherent, given the limits of language and of our ability to foresee future developments. In addition, ex ante clarification often would be wasteful because so few patents are valuable enough to be contested. Therefore, ex post clarification of patent scope after potentially infringing activities have occurred would be more efficient than efforts to clarify exclusively through ex ante measures. More specifically, two ex post techniques should be adopted. First, courts should recognize that patents often cannot communicate ex ante the scope of patent rights and should adjust certain patent law doctrines accordingly. Second, an administrative procedure should be established to cheaply clarify patent scope after a patent has issued.

Keywords: patent, claim, communicate, efficient, uncertainty

Suggested Citation

Hubbard, William, Efficient Definition and Communication of Patent Rights: The Importance of Ex Post Delineation (August 28, 2009). Santa Clara Computer and High Technology Law Journal, Vol. 25, No. 2, 2009. Available at SSRN: https://ssrn.com/abstract=1463658

William Hubbard (Contact Author)

University of Baltimore - School of Law ( email )

1420 N. Charles Street
Baltimore, MD 21218
United States

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