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Private Law And The Future Of Patents, Oskar Liivak
Private Law And The Future Of Patents, Oskar Liivak
Cornell Law Faculty Publications
As it operates today, patent law does not qualify as private law and, without change, I doubt it ever will. For some, this is as it should be and any private law aspects that remain in the patent system should be purged. The basic argument is that the dominant theory of patents is just not compatible with private law and patent doctrine should reflect a pure public law theoretical basis. I agree that today's dominant patent theory is incompatible with private law principles. Yet agreeing with that inherent incompatibility does not imply that doctrine needs to be reformed. There is …
A Crisis Of Faith & The Scientific Future Of Patent Theory, Oskar Liivak
A Crisis Of Faith & The Scientific Future Of Patent Theory, Oskar Liivak
Cornell Law Faculty Publications
The current reward framing for the patent system has resisted all attempts to either confirm or to refute the benefits of the system. Yet that should not surprise us. We should be surprised that we ever thought that the system could be justified at all. The reward framing has infected the patent system with pathological defects that make the system both unjustifiable and unfalsifiable. An alternate framing that focuses on ex ante technology transfer can support and explain many of the doctrinal features of the current patent system, but it can do so while avoiding the pathologies that plague today's …
Full Federal Circuit Curbs On Sale Bar's Threat To Patents, Zong-Qiang Bill Tian, Matthew D'Amore
Full Federal Circuit Curbs On Sale Bar's Threat To Patents, Zong-Qiang Bill Tian, Matthew D'Amore
Cornell Law Faculty Publications
No abstract provided.
When Nominal Is Reasonable: Damages For The Unpracticed Patent, Oskar Liivak
When Nominal Is Reasonable: Damages For The Unpracticed Patent, Oskar Liivak
Cornell Law Faculty Publications
To obtain a substantial patent damage award a patentee need not commercialize the patented invention; the patentee need only show that its patent was infringed. This surely incentivizes patenting but it dis-incentivizes innovation. Why commercialize yourself? The law allows you to wait for others to take the risks, and then you emerge later to lay claim to “in no event less than a reasonable” fraction of other people’s successes. It is rational to be a patent troll rather than an innovator. This troll-enabling interpretation of patent law’s reasonable royalty provision, however, is wrong as a matter of patent policy. Surprisingly, …
Establishing An Island Of Patent Sanity, Oskar Liivak
Establishing An Island Of Patent Sanity, Oskar Liivak
Cornell Law Faculty Publications
There is a growing, inescapable sense that something has gone terribly wrong with the patent system. The patent system is described as a failure, broken, and dysfunctional. Yet, despite the fact that much of today’s headline-grabbing patent activity appears facially unproductive, we really can’t be sure that the system has failed in its mission. Current patent theory is so indeterminate that it is hard to decisively criticize these activities. In fact, the current narrative cannot conclusively show that patent trolls or any other patent-related activities are or are not economically justified. Though depressing and perhaps embarrassing, this patent indeterminacy is …
Maturing Patent Theory From Industrial Policy To Intellectual Property, Oskar Liivak
Maturing Patent Theory From Industrial Policy To Intellectual Property, Oskar Liivak
Cornell Law Faculty Publications
We have always known that technological progress is important and this country has always aimed to promote it. A large part of that responsibility has fallen on the shoulders of the patent system. Embarrassingly, despite over two hundred years of experience, we still do not actually know if the patent system helps or hinders technological progress. This Essay argues that the problem is not the patent system but rather patent theory. Patent theory suffers from three linked problems: exceptionalness, indeterminacy, and animosity. First, patent law is seen as a necessarily unique exception to the overall market economy. By artificially making …