Patent Uncertainty: Toward A Framework with Applications

25 Pages Posted: 14 Jan 2016

See all articles by Keith N. Hylton

Keith N. Hylton

Boston University - School of Law

Date Written: January 5, 2016


There are three essential sources of uncertainty in the patent system: perceived uncertainty due to selective sampling (“statistical artefact uncertainty”), inherent uncertainty, and strategic uncertainty. It is only the strategic uncertainty source that should be of concern to reformers. With respect to this source, uncertainty in the patent system is largely a function of two variables: the degree of inherent abstraction associated with the patent, and the degree to which the patent provides notice of its scope. The maximal degree of uncertainty is observed in the category of abstract patents with poor notice, a category dominated today by software patents. I offer a few principles for validating patents in this category of maximal uncertainty.

Keywords: intellectual property, patents and uncertainty, patent notice, software patent, patent scope, infringement litigation, abstract patents, Alice Corp., patent eligibility

Suggested Citation

Hylton, Keith N., Patent Uncertainty: Toward A Framework with Applications (January 5, 2016). Boston University Law Review, 2016, Forthcoming, Boston Univ. School of Law, Law and Economics Research Paper No. 16-01, Available at SSRN:

Keith N. Hylton (Contact Author)

Boston University - School of Law ( email )

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617-353-3077 (Fax)

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