The patent statute creates a general set of legal rules that govern a wide variety of technologies. With only a few exceptions, the statute does not distinguish between different technologies in setting and applying legal standards. In theory, then, we have a uniform patent system that provides...

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...

Intellectual property (IP) is a form of regulation. Once we understand IP laws as government social policies that seek to alter market outcomes, we can start to think of those laws as part of a broader tapestry of government rules that affect innovation in a complex variety of ways. Sometimes...

Inherency is a puzzle that runs throughout patent law. Patents are based upon descriptions of technology. However, technologies may have qualities that are unappreciated or unidentified in a patent description, but which are nonetheless present. The law refers to these unknown attributes as...

It is a fundamental principle of patent law that no one infringes a patent unless they practice the complete invention. Nonetheless, patent courts have long recognized that focusing only on the party who actually practices the invention will sometimes let off the hook the party who most deserves...

Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is so significant that many law firms have established nanotechnology practice groups, and the U.S. Patent and Trademark Office has now created a new...

Patents constitute our foremost policy tool for encouraging innovation. However, because each new technology provides an important input to subsequent innovation, the exclusive rights conferred by a patent may also impose significant costs upon follow-on innovators. Optimal patent policy should...

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...