Courts assessing compensatory damages awards often lack adequate information to determine the value of a victim's loss. A central reason for this problem, which the literature has thus far overlooked, is that courts face a dilemma when applying their standard information-forcing tool to the...

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...

There is an enormous literature analyzing the choice between rules and standards in drafting legal directives. This literature typically focuses on public government-made legal directives such as statutes, regulations, and judicial opinions; it has devoted less attention to privately-drafted...

“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...

A central reason for having an IP system (over a prize or grant system) is the assumption that government actors lack the capability to make assessments of IP value. Yet the reality is that judges make assessments of IP value all the time. I call this seeming contradiction the “paradox of...

The standard economic rationale for the alienability of property rights is that it facilitates the flow of resources to those who can put it to the most valuable use, or the “highest utility user.” But patents do not come with a right to productively use some social resource—patent rights...

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...

Two arguments are commonly made against restricting patentable subject-matter. The first is that such restrictions are over-inclusive. If an invention is “new, useful, and non-obvious,” critics ask, why should it be denied patent incentives because it falls into some “wrong” category?...