Chapter

Policy Levers in Existing Patent Cases

in The Patent Crisis and How the Courts Can Solve It

Published by University of Chicago Press

Published in print May 2009 | ISBN: 9780226080611
Published online March 2013 | e-ISBN: 9780226080635 | DOI: http://dx.doi.org/10.7208/chicago/9780226080635.003.0009
Policy Levers in Existing Patent Cases

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This chapter presents some of the many industry-specific “policy levers” that courts use to tailor the nominally unitary patent system to the needs of different industries. It also describes the industry-specific use of the person having ordinary skill in the art (PHOSITA). The utility doctrine constitutes an example of a macro policy lever: it creates a blanket rule for one set of cases that differs from the rule in others. The use of the PHOSITA is a macro policy lever because it explicitly creates different standards for different technologies and different industries. A patent is protected by a property rule, and the ordinary remedy for patent infringement is an injunction. The doctrines discussed in this chapter all implicate the technology-specific potential of patent law, and they are all capable of being used to bring patent law in line with optimal patent policy.

Keywords: policy levers; patent system; PHOSITA; macro policy; patent law; patent policy

Chapter.  9278 words. 

Subjects: Intellectual Property Law

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