Patent law defines novelty by the creation of a new embodiment, not an idea. For example, the Wright brothers are deemed to have invented the airplane because nobody made an airplane before, and not because they were the first to think of flying. Patent law then defines monopoly scope through a...

Much recent literature has characterized the Federal Circuit’s patent scope jurisprudence as “formalistic.” Another extensive set of literature has characterized the Federal Circuit’s patent scope jurisprudence as wildly indeterministic. If formalism is defined as decision-making...

The concept of “invention” is fundamental to patent law. What the patentee creates as the invention, he receives as his monopoly reward. This quid pro quo suggests that patent scope is self-defining: the patentee receives whatever invention he created, and nothing else. The quid pro quo...

The claims of a patent are its boundaries, defining the scope of exclusion. This boundary function of claims is undermined by the fact that claims can be changed throughout the life of the patent, thereby moving the patent boundary. A boundary that can be moved at-will is one that the public...

Some have argued that the new first-to-file patent system is unconstitutional because the Constitution contains a principle that patents should be granted only to first inventors. In this Essay, I argue that, even accepting such a constitutional principle, a first-to-file system is permissible...

An enormous literature has criticized patent claims for being ambiguous. In this Article, I explain that this literature miscomprehends the real problem. The fundamental concern with patent claims is not ambiguity (which may, or may not, lead to overbroad rights) but the fact that claims are...

Patent trolls and orphan works are major topics of discussion in patent and copyright law respectively, yet they are rarely discussed together. Commentators seem to regard these two problems in modern IP law as discrete issues with little to do with each other.In reality, patent trolls and...

“Inequitable conduct” is a patent law doctrine that renders a patent unenforceable when the patentee is found to have acted improperly before the U.S. Patent and Trademark Office. It is widely reviled and frequently criticized for being draconian: the Federal Circuit has famously called the...

When discussing search in patent law, everyone considers the problem in terms of producers looking for patentees. But search is reciprocal. In designing a patent system, we can have producers look for patentees, or patentees look for producers. Either will result in the ex ante negotiation that...

In the altruism model of voting, the social benefits of an electoral outcome is considered to offset the low probability of casting a decisive vote, thereby overcoming the voting paradox. One problem with this model is that it assumes both a clearly superior electoral outcome for society and...