Increased Market Power as a New Secondary Consideration in Patent Law

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patent law, antitrust law, secondary considerations, law and economics


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).


Antitrust and Trade Regulation | Intellectual Property Law | Law and Economics