The Need For “Innovation Certainty” At The Crossroads Of Patent And Antitrust Law

By Paul R. Michel & Matthew J. Dowd

Due to a parade of legislation, judicial interpretations, and administrative application during the past decade, the combination of patent law destabilization and antitrust law uncertainty has devastated innovation certainty in the United States. We are now seeing the manifestations of diminished innovation certainty – or perhaps it is now better termed “innovation uncertainty.” There is an unreasonable unwillingness to license intellectual property, even when there is no question of infringement. The U.S. patent system is no longer considered the gold standard. In 2017, it fell from No. 1 to No. 10 in the annual U.S. Chamber of Commerce global ranking of patent systems. All of this, as well as pending Supreme Court patent cases, and yet there are continued calls for so-called patent “reform” legislation.

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