Courts and the Patent System


  • Mark Lemley
Publish Date:
July 1, 2009
Publication Title:
32 Regulation 18 .
Journal Article
  • Dan L. Burk & Mark A. Lemley, Courts and the Patent System, 32 Regulation 18 (2009).


Innovation and patent law work differently in different industries. To some degree, the courts’ interpretations of patent and trademark law accommodate those differences. It is not much of an exaggeration to say that the patent system must bend or break: a patent system that is not flexible enough to account for these industry differences is unlikely to survive, let along accomplish its stated goals. We believe the system has the flexibility to do both, but this will require the courts to better recognize and use the policy levers they have been given.