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Profits as Commercial Success

Andrew Blair-Stanek

University of Maryland Francis King Carey School of Law

January 1, 2008

Yale Law Journal, Vol. 117, No. 4, 2008

Courts often use the extent of a patented invention’s commercial success as crucial nontechnical proof of the patent’s validity. Relying on misguided economic reasoning, most courts use revenue as the primary yardstick for commercial success. This Note argues that courts instead should use profits as the proper measure of an invention’s commercial success. Current jurisprudence’s use of revenue reflects the flawed premise that firms maximize revenues rather than maximizing profits. As a result, courts will often find commercial success when the financial data suggest otherwise and vice versa. This Note finds the accounting and economic issues involved to be insubstantial, while requiring a threshold profit showing could materially further judicial economy.

Number of Pages in PDF File: 37

Keywords: patent, commercial success, secondary considerations, prospect theory, law and economics

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Date posted: February 21, 2011 ; Last revised: June 11, 2014

Suggested Citation

Blair-Stanek, Andrew, Profits as Commercial Success (January 1, 2008). Yale Law Journal, Vol. 117, No. 4, 2008. Available at SSRN: https://ssrn.com/abstract=1763516 or http://dx.doi.org/10.2139/ssrn.1763516

Contact Information

Andrew Blair-Stanek (Contact Author)
University of Maryland Francis King Carey School of Law ( email )
500 West Baltimore Street
Baltimore, MD 21201-1786
United States
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