Profits as Commercial Success
Document Type
Article
Publication Date
2008
Keywords
patent, commercial success, secondary considerations, prospect theory, law and economics
Abstract
Courts often use the extent of a patented invention’s commercial success as crucial nontechnical proof of the patent’s validity. Relying on misguided economic reasoning, most courts use revenue as the primary yardstick for commercial success. This Note argues that courts instead should use profits as the proper measure of an invention’s commercial success. Current jurisprudence’s use of revenue reflects the flawed premise that firms maximize revenues rather than maximizing profits. As a result, courts will often find commercial success when the financial data suggest otherwise and vice versa. This Note finds the accounting and economic issues involved to be insubstantial, while requiring a threshold profit showing could materially further judicial economy.
Publication Citation
117 Yale Law Journal 642 (2008).
Disciplines
Commercial Law | Intellectual Property Law | Law and Economics
Digital Commons Citation
Blair-Stanek, Andrew, "Profits as Commercial Success" (2008). Faculty Scholarship. 1322.
https://digitalcommons.law.umaryland.edu/fac_pubs/1322