What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings

Abstract

Professor Jonathan Masur’s recent article, Patent Inflation, argues that the expansion in the boundaries of patentability that has occurred since the creation of the Court of Appeals for the Federal Circuit is caused by cases in which the court reverses patent rejections by the U.S. Patent and Trademark Office (PTO). This Essay examines every Federal Circuit patentability ruling over five different years and shows that reversals of PTO rejections are few in number and doctrinally insignificant. Instead, patentability rulings in infringement suits — which should have no net effect under Masur’s model — likely play an important role in patent inflation because of the presumption of patent validity and the higher stakes in patent litigation. Masur also underestimates the role of the Supreme Court in redrawing patentability boundaries. Although Masur’s simple model is elegant, this Essay argues that it cannot accurately capture the complex phenomenon of patent inflation.

Keywords: Federal Circuit, PTO, patent, patentability, infringement, empirical

JEL Classification: O34