Notice Failure and Notice Externalities

Menell, Peter S.; Meurer, Michael

doi:10.2139/ssrn.1973171

Cited by 10 publications

(19 citation statements)

References 60 publications

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“…As discussed earlier, patentees can often "benefit from strategically hiding, obfuscating, and distorting" information contained in the patent. 277 We discussed the Rambus case as an example. In this case, Rambus waited until Infineon was "locked in" to using a standards-essential patent, before seeking and enforcing new patent claims.…”

Section: Rambus V Infineon: Strategic Behaviormentioning

confidence: 99%

Patent Accidents: Questioning Strict Liability in Patent Law

Goold

2019

SSRN Journal

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Accidental infringement of patent rights is a pervasive and growing problem in the Information Age. As IP rights proliferate and expand in scope, it is becoming increasingly easy for companies and individuals to inadvertently infringe patents. When such accidental infringement occurs, patent law holds the infringer strictly liable. This contrasts with many areas of tort law where defendants are only liable if they act negligently. This Article questions the normative desirability of strict liability in patent infringement cases. Assuming the primary value of patent law is utilitarian, the Article poses the research question: What liability rule will maximize social welfare? The Article answers the question theoretically by applying economic models of accidents developed in tort law literature. The research finds that a negligence rule is preferable. Unlike strict liability, negligence liability will encourage both patentees and technology users to take reasonable measures to prevent accidental infringement, and thus minimize the social cost of patent accidents. Therefore, the Article recommends reforms to the liability rule in direct patent infringement cases. Defendants should be liable for accidental patent infringement only when they fail to adopt reasonable care to avoid the infringement.

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Section: Rambus V Infineon: Strategic Behaviormentioning

confidence: 99%

Patent Accidents: Questioning Strict Liability in Patent Law

Goold

2019

SSRN Journal

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“…This is not to say that the functional equivalents of possession that we observe in the IP context-including both requirements that the IP owner has captured her intangible creation in a concrete way and has signaled her claim to others-are sufficient to serve possession's purposes. The failure of patents to provide adequate notice to rival inventors is a notorious shortcoming of the contemporary patent system (see, e.g., Bessen and Meurer, 2008;Fromer, 2009;Long, 2004;Menell and Meurer, 2013). As for copyrights, the requirement that claims to works of authorship be communicated to the public via a centralized registry or marked embodiments has been abandoned (see, e.g., Ginsburg, 2010;Litman, 2016;Sprigman, 2004).…”

Section: Possession Property Origins and The Public Domainmentioning

confidence: 99%

“…Copyright Office, 2015). In patent, critics are alarmed when innovators' investments are jeopardized by allegations that they have infringed unclear and thus difficult-to-avoid patent claims-especially in the realms of software and Internet business methods (Bessen and Meurer, 2008;Long, 2004;Menell and Meurer, 2013). In both the copyright and patent contexts, informational inadequacies can contribute to inadvertent infringement and then to surprising and costly disputes.…”

Section: B Property and Informationmentioning

confidence: 99%

Intellectual property as property

Houweling¹

2019

Research Handbook on the Economics of Intellectual Property Law

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“…Furthermore, the existence of patent trolls might partly be the result of the practices of the court in assessing damages. A large number of policy responses have been promoted (Menell and Meurer, ).…”

Section: Economic Literature On Patent Prosecution Organization and mentioning

confidence: 99%

A Survey of the Economics of Patent Systems and Procedures

Eckert

Langinier

2013

Journal of Economic Surveys

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The last several decades have seen increases in patenting activity worldwide, as well as growing issues related to patent quality. In response to these quality issues a recent patent literature has emerged, that investigates the behavior and incentives of patent examiners, applicants, and third parties. In this paper, we provide an overview of patent procedures, patent systems and a survey of the new economic literature on patent systems. Both theoretical and empirical papers are considered. Policy implications coming from this literature are presented.

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Notice Failure and Notice Externalities

Cited by 10 publications

References 60 publications

Patent Accidents: Questioning Strict Liability in Patent Law

Patent Accidents: Questioning Strict Liability in Patent Law

Intellectual property as property

A Survey of the Economics of Patent Systems and Procedures

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