Empirical Studies Relating to Patents - Presumption of Validity

Research Handbook on the Economics of Intellectual Property Law - Vol. II: Analytical Methods (P. Menell, D. Schwartz & B. Depoorter eds., Edward Elgar) (Forthcoming)

21 Pages Posted: 11 Oct 2015

See all articles by Christopher B. Seaman

Christopher B. Seaman

Washington and Lee University School of Law

Date Written: October 8, 2015

Abstract

This book chapter from the forthcoming Research Handbook on the Economics of Intellectual Property Law addresses the presumption of validity for issued patents. It first recounts the historical development of the presumption in U.S. law, culminating with the Supreme Court's 2011 decision in Microsoft Corp. v. i4i Limited Partnership, which held that clear and convincing evidence is required to overcome the statutory presumption of validity in all cases. It then discusses the theoretical arguments for and against the presumption of validity. The next section surveys the current empirical literature, focusing on observational and experimental studies that attempt to assess the impact of the clear and convincing standard of proof required to overcome the presumption in an invalidity challenge. In sum, the existing empirical scholarship suggests that the presumption of validity and the standard of proof to overcome it matters in patent litigation, at least in close cases. The final section discusses several significant implications for participants in patent litigation and the patent system that flow from this conclusion.

Keywords: patent, presumption of validity, i4i, invalidity, standard of proof, clear and convincing, empirical, experimental, 101, Alice

JEL Classification: K29, K30, K41, O31, O34

Suggested Citation

Seaman, Christopher B., Empirical Studies Relating to Patents - Presumption of Validity (October 8, 2015). Research Handbook on the Economics of Intellectual Property Law - Vol. II: Analytical Methods (P. Menell, D. Schwartz & B. Depoorter eds., Edward Elgar) (Forthcoming), Available at SSRN: https://ssrn.com/abstract=2671581

Christopher B. Seaman (Contact Author)

Washington and Lee University School of Law ( email )

Lexington, VA 24450
United States
540-458-8520 (Phone)

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