Posted by Social Science Research Network
The Antitrusting of Patentability
By Saurabh Vishnubhakat (Texas A&M University School of Law)
Abstract: Deciding a patent’s validity is costly, and so is deciding it incorrectly. Judges and juries must expend significant resources in order to reach a patent validity determination that is properly informed by the relevant facts. At the same time, patent validity determinations reached quickly and cheaply may conserve resources today while creating future costs. Wrongly preserving an invalid patent can distort the competitive market and enable abuses, such as nuisance litigation. Meanwhile, wrongly striking down a valid patent can undermine incentives for continued investment and commercialization in knowledge assets. Courts facing patent validity issues have begun to strike this balance in favor of conserving resources today—in a manner that is strikingly similar to per se analysis in antitrust law. A per se rule disposes of supposedly easy cases without engaging in the more fact-intensive “rule of reason” analysis. However, although antitrust jurisprudence cautions against per se rules because of the risk of error and imposes important requirements for the use of per se rules, recent patent jurisprudence has borrowed incautiously from antitrust.
This Article explains how the requirements for patentability enable the use of per se analysis, describes how the proper conditions for antitrust per se analysis would translate into patent law, and argues that current use of antitrust-style judicial shortcuts do not satisfy these conditions in patent law. The Article concludes with a set of proposals for recalibrating the present costs of reaching informed patent validity decisions against the future costs that arise from generating decisions incorrectly.
Featured News
CVS Health Explores Potential Breakup Amid Investor Pressure: Report
Oct 3, 2024 by
CPI
DirecTV Acquires Dish TV, Creating 20 Million-Subscriber Powerhouse
Oct 3, 2024 by
CPI
South Korea Fines Kakao Mobility $54.8 Million for Anti-Competitive Practices
Oct 3, 2024 by
CPI
Google Offers Settlement in India’s Antitrust Case Regarding Smart TVs
Oct 3, 2024 by
CPI
Attorney Challenges NCAA’s $2.78 Billion Settlement in Landmark Antitrust Cases
Oct 3, 2024 by
nhoch@pymnts.com
Antitrust Mix by CPI
Antitrust Chronicle® – Refusal to Deal
Sep 27, 2024 by
CPI
Antitrust’s Refusal-to-Deal Doctrine: The Emperor Has No Clothes
Sep 27, 2024 by
Erik Hovenkamp
Why All Antitrust Claims are Refusal to Deal Claims and What that Means for Policy
Sep 27, 2024 by
Ramsi Woodcock
The Aspen Misadventure
Sep 27, 2024 by
Roger Blair & Holly P. Stidham
Refusal to Deal in Antitrust Law: Evolving Jurisprudence and Business Justifications in the Align Technology Case
Sep 27, 2024 by
Timothy Hsieh