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
Date Written: October 8, 2015
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: Suggested Citation