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Protecting The Boundaries: Unclaimed Consideration In The Patentee's Social Contract, Samuel F. Ernst

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This Article argues that the primary value society receives in the patentee social contract is not new inventions, but "unclaimed consideration." Unclaimed consideration takes many forms: additional innovations to improve on the patented invention, additional innovations created through efforts to design around the patented invention, innovations created by losers in the patent race, innovations informed by the unclaimed technical information in patents, commercialization of the patented invention or these other innovations, and the signals that patents give to investors regarding the value of a company or research lab. While there are many schools of patent scholarship engaged in spirited debate …