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Patent Uncertainty: Toward A Framework With Applications, Keith N. Hylton
Patent Uncertainty: Toward A Framework With Applications, Keith N. Hylton
Faculty Scholarship
There are three essential sources of uncertainty in the patent system: perceived uncertainty due to selective sampling (“statistical artefact uncertainty”), inherent uncertainty, and strategic uncertainty. It is only the strategic uncertainty source that should be of concern to reformers. With respect to this source, uncertainty in the patent system is largely a function of two variables: the degree of inherent abstraction associated with the patent, and the degree to which the patent provides notice of its scope. The maximal degree of uncertainty is observed in the category of abstract patents with poor notice, a category dominated today by software patents. …
Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Michael J. Meurer, Craig Allen Nard
Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Michael J. Meurer, Craig Allen Nard
Faculty Scholarship
The doctrine of equivalents (DOE) allows courts to expand the scope of patent rights granted by the Patent Office. The doctrine has been justified on fairness grounds, but it lacks a convincing economic justification. The standard economic justification holds that certain frictions block patent applicants from literally claiming appropriately broad rights, and thus, the DOE is available at trial to expand patent scope and overcome these frictions. The friction theory suffers from three main weaknesses. First, the theory is implausible on empirical grounds. Frictions such as limits of language, mistake, and unforeseeability are missing from the leading cases. Second, there …