Smart Patents

47 Pages Posted: 29 Jun 2022

See all articles by Stephanie Plamondon

Stephanie Plamondon

Brigham Young University J. Reuben Clark Law School

Date Written: June 28, 2022


Intellectual property (IP) rights differ from traditional property rights in a crucial respect: the ascertainability of their boundaries. While it is usually a simple task to figure out where a traditional property right (e.g., an ownership right in a piece of land) begins and ends, delineating the metes and bounds of an IP right (e.g., a right to exclude others from practicing an invention as described in a patent claim) can be much more difficult to do.

The indeterminate scope of patent rights in particular leads to many layers of inefficiency. Downstream inventors may find it necessary to engage in costly defensive litigation to determine whether their activities infringe pre-existing rights or may be chilled by the prospect of offensive litigation from engaging in these activities altogether. Uncertain patent scope also facilitates trolling behaviors: legitimate practicing entities pay rents to patent trolls because they do not know—and are unwilling to engage in expensive litigation to find out—whether their activities are infringing. As patent scholars have pointed out, these problems of indeterminacy are exacerbated both by ambiguities in the patent claiming process itself and by gaming behaviors among patent owners.

In this Article, I propose a simple set of interventions to help combat problems of ambiguous patent claiming, overreaching, and strategic behavior by patent owners. My solution calls for targeted changes to the patent application process. The suggestions for change draw from similar recommendations, grounded in the social psychology literature, that have called for the creation of so-called “smart” tax returns in the tax filing context.

The changes proposed here have several advantages over other recommendations designed to enhance patent clarity. First, they are relatively low-cost. Second, they are self-sustaining, requiring no ongoing policing or oversight. Finally, the changes proposed here need not be mutually exclusive from the implementation of any other suggestion for improving patent clarity and fighting strategic behavior previously made in the literature. Indeed, the hope is that the recommendations I put forth here can work in concert with other policy interventions to reduce undesirable patent claiming behaviors and attendant inefficiencies, while enhancing the clarity of patent boundaries.

Keywords: patents, patent rights, intellectual property, innovation

Suggested Citation

Plamondon, Stephanie, Smart Patents (June 28, 2022). University of Illinois Law Review (2022, Forthcoming), BYU Law Research Paper No. 22-20, Available at SSRN:

Stephanie Plamondon (Contact Author)

Brigham Young University J. Reuben Clark Law School ( email )

430 JRCB
Brigham Young University
Provo, UT 84602
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics