Increased Market Power as a New Secondary Consideration in Patent Law
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.
58 American University Law Review 707 (2009).
Antitrust and Trade Regulation | Intellectual Property Law | Law and Economics
Digital Commons Citation
Blair-Stanek, Andrew, "Increased Market Power as a New Secondary Consideration in Patent Law" (2009). Faculty Scholarship. 1320.