Article
Increased Market Power as a New Secondary Consideration in Patent Law
Faculty Scholarship
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).
Disciplines
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/