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...

More than 2.5 million United States patents have been issued in the last twenty years. While these patents are spread across all industries, a large percentage are concentrated in the information technology (IT) industries, and others in biotechnology. The prevalence of patents in these...

While the theory of the patent system is premised on the idea that patents will be used to exclude competitors, only a tiny fraction of patents are ever enforced. Legal and economic scholars have theorized as to how to identify valuable patents based on their individual characteristics. In this...

The confluence of two significant developments in modern patent practice leads me to write a paper with such a provocative title. The first development is the rise of hold-up as a primary component of patent litigation and patent licensing. The second development in the last three decades is the...

Patent law gives patent owners not just the right to prevent others from copying their ideas, but the power to control the use of their idea even by those who independently develop a technology with no knowledge of the patent or the patentee. In an important paper, Samson Vermont challenges this...

The USPTO receives more applications today than it ever has before. What happens to those applications? Patent prosecutors all have stories and personal experiences. Until quite recently, however, this sort of “anecdata” was all that was available, because the law prevented anyone from every...

Patent law is virtually alone in intellectual property (IP) in punishing independent development. To infringe a copyright or trade secret, defendants must copy the protected IP from the plaintiff, directly or indirectly. But patent infringement requires only that the defendant's product falls...

We argued in our paper, "Patent Hold-Up and Royalty Stacking," that the threat to obtain a permanent injunction greatly enhances the patent holder's negotiating power, leading to royalty rates that exceed a benchmark level based on the value of the patented technology and the strength of the...

Every IP right has its own definition of infringement. In this paper, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP...