Supreme Court Economic Review
Over the last twenty years, a quiet revolution has taken place in patent law. Traditionally, patents were rarely valid, but if valid, broadly enforced. Since Congress created the Federal Circuit in 1982 and vested it with exclusive intermediate appellate jurisdiction over patent appeals, patents have become routinely valid, but narrowly enforced. This article evaluates the economic consequences of this revolution. Focusing on the reasons for, and the costs of, uniformity in patent protection, this article shows that the revolution will tend to limit the patent system's ability to ensure the expected profitability, and hence the existence, of desirable, but high cost innovation.
Glynn S. Lunney Jr,
Patent Law, the Federal Circuit, and the Supreme Court, A Quiet Revolution,
Sup. Ct. Econ. Rev.
Available at: https://scholarship.law.tamu.edu/facscholar/433