Is Patent Enforcement Efficient?

21 Pages Posted: 8 Mar 2018 Last revised: 17 Apr 2020

See all articles by Mark A. Lemley

Mark A. Lemley

Stanford Law School

Robin Feldman

University of California Hastings Law

Date Written: March 7, 2018

Abstract

Traditional justifications for patents are all based on direct or indirect contribution to the creation of new products. Patents serve the social interest if they provide not just invention, but innovation the world would not otherwise have. Non-practicing entities (“NPEs”) as well as product-producing companies can sometimes provide such innovation, either directly, through working the patent or transferring technology to others who do, or indirectly, when others copy the patented innovation. The available evidence suggests, however, that patent licensing demands and lawsuits from NPEs are normally not cases that involve any of these activities.

Some scholars have argued that patents can be valuable even without technology transfer because the ability to exclude others from the market may drive commercialization that would not otherwise occur. We demonstrate that even if various commercialization theories can sometimes justify patent protection, they cannot justify most NPE lawsuits or licensing demands.

Suggested Citation

Lemley, Mark A. and Feldman, Robin, Is Patent Enforcement Efficient? (March 7, 2018). 98 Boston University Law Review 649 (2018), Available at SSRN: https://ssrn.com/abstract=3135945

Mark A. Lemley (Contact Author)

Stanford Law School ( email )

559 Nathan Abbott Way
Stanford, CA 94305-8610
United States

Robin Feldman

University of California Hastings Law ( email )

200 McAllister Street
San Francisco, CA 94102
United States

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