Abstract

https://ssrn.com/abstract=2540356
 


 



The Malleability of Patent Rights


Jason Rantanen


University of Iowa - College of Law

May 22, 2015

2015 MICH. ST. L. REV. 895
U Iowa Legal Studies Research Paper No. 15-01

Abstract:     
The core insight of this Article is that patent rights are not static and fixed, as they are commonly portrayed, but malleable. Commentators typically treat patent rights as if they are unchanging, frozen forever at the moment the patent issues. But patent law isn’t so limited. Patent rights are surprisingly malleable: The scope and strength of the right can be changed even after the patent is issued through a surprisingly large array of mechanisms, allowing actors operating within the patent system the ability to change the very contours of individual patents. Malleability thus adds an important layer onto previous work recognizing that patent rights are uncertain: It is not merely that patent rights can involve something akin to a roll of the dice or an inability to definitively pin down their scope, but that the outcome of that roll or the contours of the uncertainty can be changed by the actions of the parties involved.

This Article develops the concept of malleable rights, a new lens through which to view patents, and distinguishes the idea of malleable rights from that of probabilistic rights. Using this concept, the Article explores the ways in which patent rights are malleable and examines possible theoretical justifications for the malleability of patent rights, concluding that regardless of whether one accepts such justifications, recognizing the malleability of patent rights has profound consequences for discussions about emerging patent monetization strategies, for the patent system as a whole, and perhaps for views about rights over intangibles generally.

Number of Pages in PDF File: 61

Keywords: Patent, Legal theory


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Date posted: December 20, 2014 ; Last revised: April 9, 2016

Suggested Citation

Rantanen, Jason, The Malleability of Patent Rights (May 22, 2015). 2015 MICH. ST. L. REV. 895; U Iowa Legal Studies Research Paper No. 15-01 . Available at SSRN: https://ssrn.com/abstract=2540356 or http://dx.doi.org/10.2139/ssrn.2540356

Contact Information

Jason Rantanen (Contact Author)
University of Iowa - College of Law ( email )
Melrose and Byington
Iowa City, IA 52242
United States
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