How can we allow patent examiners to effectively distinguish between patentable and unpatentable inventions, without slowing the process to a crawl or wasting a bunch of money? This essay reviews the recent literature and considers a number of proposals and their limitations. It concludes that...

Economists often assume that a patent gives its owner a well-defined legal right to exclude others from practicing the invention described in the patent. In practice, however, the rights afforded to patent holders are highly uncertain. Under patent law, a patent is no guarantee of exclusion but...

In his influential paper “Contracting Into Liability Rules: Intellectual Property Rights and Collective Rights Organizations,” Rob Merges makes the case that intellectual property (IP) owners vested with property entitlements can and do contract away their right to an injunction when it is...

Patentees overwhelmingly lose their cases, despite a seeming host of procedural advantages. The same is not true of other IP plaintiffs. Why? In this article, I suggest that the explanation lies in the "fractioning" of patent law into smaller and smaller issues. Claim construction after Markman...

The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented. We deny patents on inventions that are "obvious" to ordinarily innovative scientists in the field. Our goal is to encourage...

We award patents to inventors because we hope to encourage new ideas. For this reason, the fundamental requirement for getting a patent is that you have invented something new.It is curious, then, that patent law itself purports to pay no attention to which aspects of a patentee’s invention...

How can we fix the PTO, allowing examiners to effectively distinguish between patentable and unpatentable inventions, without slowing the process to a crawl or wasting a bunch of money? This essay reviews the recent literature and considers a number of proposals and their problems. It concludes...

The United States economy is struggling to recover from its worst economic downturn since the Great Depression. After several huge doses of conventional macroeconomic stimulus - deficit-spending and monetary stimulus - policymakers are understandably eager to find innovative no-cost ways of...