The incentive thesis supplies the primary rationale for the patent system: without an exclusionary right, firms will decline to invest in innovations that are subject to expropriation. Empirical inquiry into the incentive thesis’ scope of application has yielded complex results, which are...

Judicial decisions, agency actions and legislative enactments have promoted a creeping reversion toward the weak patent regime that prevailed for several decades preceding the establishment of the Court of Appeals for the Federal Circuit. The pending Supreme Court case, Oil States Energy...

Scholarly and popular commentary often assert that markets characterized by intensive patent issuance and enforcement suffer from “patent thickets” that suppress innovation. This assertion is difficult to reconcile with continuous robust levels of R&D investment, coupled with declining...

A largely unqualified consensus among substantial portions of the scholarly, policymaking, advocacy and business communities has taken the view that the U.S. patent system, since approximately the early 1980s, has endangered innovation by adopting historically strong forms of patent protection...

Since the Supreme Court’s 2006 decision in eBay, Inc. v. MercExchange, LLC, increasingly large portions of the patentee population have no realistic expectation of securing injunctive relief against adjudicated infringers. This judicially imposed quasi-compulsory licensing regime induces...

This comment by 27 law professors, economists and former government officials was submitted to the Department of Justice in response to a call for comments on a draft policy statement on standard essential patents (SEPs). Although the draft policy statement is right to seek a “balanced,...

Conventional academic, policy, and judicial discussions of patent protection assume that patents solve a classic public goods or market underinvestment problem. This assumption states that, without patents, potential innovators would expect to have no or highly limited means of preventing...

Scholarly and popular commentary often assert that markets characterized by intensive patent issuance and enforcement suffer from “patent thickets” that suppress innovation. This assertion is difficult to reconcile with continuous robust levels of R&D investment, coupled with declining...