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Patent Policy Adrift In A Sea Of Anecdote: A Reply To Lichtman, Michael J. Meurer, Craig Allen Nard
Patent Policy Adrift In A Sea Of Anecdote: A Reply To Lichtman, Michael J. Meurer, Craig Allen Nard
Faculty Scholarship
We enjoyed reading and thinking about Doug Lichtman's response to our article on the doctrine of equivalents (DOE), especially his eloquent formulation of the essential policy issues. Apparently, the three of us share roughly the same approach to economic analysis of the DOE. Nevertheless, Lichtman fears we have overestimated the skill of patent attorneys and lost track of the crucial role the DOE plays in augmenting patent scope and bolstering incentives to invent. We write this reply to highlight two largely empirical questions that we disagree about, and explain how these disagreements lead us to very different policy conclusions.
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 …
Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Michael J. Meurer
Invention, Refinement And Patent Claim Scope: A New Perspective On The Doctrine Of Equivalents, Michael J. Meurer
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 …