The Uninformed Topography of Patent Scope

Abstract

Setting and ascertaining patent scope are among the most important questions in patent law. However, we cannot accurately set patent scope. This is because patent scope has a sequence-of-information problem. Patent scope is set at the time that a patent is granted, while the information necessary to set and measure patent scope is not obtained until many years later. In consequence, the scope of any given patent is very likely to contain significant “error,” meaning that the scope is broader or narrower than the theoretical ideal (the minimum amount of scope necessary to incentivize innovation). Deviation from the theoretical ideal has practical consequences because scope error in either direction has a chilling effect on incentives to innovate. The sequence-of-information problem additionally presents implementability challenges for patent theory, which often calls for ex ante calibrations of scope without recognizing that its prescription is challenging to implement without ex post scope adjustment. This Article contributes to the literature by introducing the sequence-of-information problem of patent law. It additionally creates a framework for analyzing and understanding the sequence-of-innovation problem and presents proposals for improving the comprehensibility and implementability of policy relating to patent scope.