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.

Journal

117 Yale Law Journal 642 (2008).

Disciplines

Commercial Law | Intellectual Property | Law and Economics

Recommended Citation

117 Yale Law Journal 642 (2008).