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Article
Increased Market Power as a New Secondary Consideration in Patent Law
Faculty Scholarship
  • Andrew Blair-Stanek, University of Maryland Francis King Carey School of Law
Document Type
Article
Publication Date
1-1-2009
Keywords
  • patent law,
  • antitrust law,
  • secondary considerations,
  • law and economics
Abstract

Courts have developed nine non-technical secondary considerations to help juries and judges in patent litigation decide whether a patent meets the crucial statutory requirement of being non-obvious. This article proposes a new, tenth secondary consideration: increased market power. If a patent measurably increases its holders’ market power, that should weigh in favor of finding the patent non-obvious. This new secondary consideration incorporates the predictive benefits of several existing secondary considerations, while increasing the accuracy and availability of evidence for fact-finders to determine whether a patent is non-obvious.

Publication Citation
58 American University Law Review 707 (2009).
Citation Information
Andrew Blair-Stanek. "Increased Market Power as a New Secondary Consideration in Patent Law" (2009)
Available at: http://works.bepress.com/andrew_blair-stanek/2/