Judicial decisions, agency actions and legislative enactments have promoted a creeping reversion toward the weak patent regime that prevailed for several decades preceding the establishment of the Court of Appeals for the Federal Circuit. The pending Supreme Court case, Oil States Energy Services v. Greene’s Energy Group, provides an opportunity to reflect upon the choice between a “property rights” vision of the patent system in which resource allocation is principally directed by market signals and an administrative vision of the patent system in which resource allocation is perpetually subject to adjustment by courts and regulators. A growing body of empirical research raises doubts concerning the social costs that have been attributed to a robustly enforced patent system and, by implication, poses a challenge to policy actions that have targeted property-like attributes of that system.
Intellectual Property Law | Law
Date of this Version
Jonathan M. Barnett, "The Patent System at a Crossroads" (March 2018). University of Southern California Legal Studies Working Paper Series. Working Paper 263.