Uncertain Patent Rights and a Weakening U.S. Innovation Economy: A Mixed Legacy on IP Policy

Adam Mossoff

©2018. Published in Landslide, Vol. 11, No. 1, September/October 2018, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

Over the past decade, the U.S. patent system has been under an extensive amount of stress from all branches of the federal government. The Supreme Court has injected a tremendous amount of uncertainty into the patent system with four decisions that severely restricted the patent eligibility of high-tech and biopharmaceutical innovation. Through policy advocacy, investigations, and enforcement actions, the Federal Trade Commission and the Department of Justice’s Antitrust Division destabilized patent licensing generally, and specifically undermined the incentives to create and commercialize patented innovation that is incorporated into technological standards.

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