Patent Invalidity versus Noninfringement.pdf - University...

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University of Chicago Law School Chicago Unbound Public Law and Legal Theory Working Papers Working Papers 2013 Patent Invalidity versus Noninfringement Roger Ford Follow this and additional works at: public_law_and_legal_theory Part of the Law Commons Chicago Unbound includes both works in progress and final versions of articles. Please be aware that a more recent version of this article may be available on Chicago Unbound, SSRN or elsewhere. This Working Paper is brought to you for free and open access by the Working Papers at Chicago Unbound. It has been accepted for inclusion in Public Law and Legal Theory Working Papers by an authorized administrator of Chicago Unbound. For more information, please contact [email protected] . Recommended Citation Roger Ford, "Patent Invalidity versus Noninfringement" (University of Chicago Public Law & Legal Theory Working Paper No. 454, 2013).
Electronic copy available at: C HICAGO C OASE -S ANDOR I NSTITUTE FOR L AW AND E CONOMICS W ORKING P APER N O . 670 (2 D SERIES ) P UBLIC L AW AND L EGAL T HEORY W ORKING P APER N O . 454 P ATENT I NVALIDITY VERSUS N ONINFRINGEMENT Roger Allan Ford THE LAW SCHOOL THE UNIVERSITY OF CHICAGO December 2013 This paper can be downloaded without charge at the Institute for Law and Economics Working Paper Series: and at the Public Law and Legal Theory Working Paper Series: and The Social Science Research Network Electronic Paper Collection.
Electronic copy available at: PATENT INVALIDITY VERSUS NONINFRINGEMENT Roger Allan Ford Most patent scholars agree that the Patent and Trademark Office grants too many invalid patents and that these patents impose a significant tax upon industry and technological innovation. Although policymakers and scholars have proposed various ways to address this problem, including better ex ante review by patent examiners and various forms of ex post ad- ministrative review, the use of district courts to invalidate patents remains a core defense against bad patents. This Article analyzes a previously unidentified impediment to the use of district courts to invalidate patents. Nearly every patent lawsuit rises or falls on one of two defenses: invalidity or noninfringement. Invalidity and non- infringement are distinct legal and factual issues that scholars usually ana- lyze separately. Yet as this Article explains, the two issues are closely related, creating a series of trade-offs and asymmetries that lead many patent defend- ants to focus on noninfringement instead of invalidity. The net effect of these trade-offs and asymmetries is that patent defendants often have an in- centive to argue noninfringement instead of invalidity, leading courts to in- validate fewer patents than they should. This exacerbates the problem of invalid patents, making it harder for individuals and companies to create new products and services.

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