Jason Rantanen

The Malleability of Patent Rights

The core insight of this Article is that patent rights are not static and fixed, as they are commonly portrayed, but malleable. Commentators typically treat patent rights as if they are unchanging, frozen forever at the moment the patent issues. But patent law isn’t so limited. Patent rights are surprisingly malleable: The scope and strength of the right can be changed even after the patent is issued through a surprisingly large array of mechanisms, allowing actors operating within the patent system the ability to change the very contours of individual patents. Malleability thus adds an important layer onto previous work recognizing that patent rights are uncertain: It is not merely that patent rights can involve something akin to a roll of the dice or an inability to definitively pin down their scope, but that the outcome of that roll or the contours of the uncertainty can be changed by the actions of the parties involved.This Article develops the concept of malleable rights, a new lens through which to view patents, and distinguishes the idea of malleable rights from that of probabilistic rights. Using this concept, the Article explores the ways in which patent rights are malleable and examines possible theoretical justifications for the malleability of patent rights, concluding that regardless of whether one accepts such justifications, recognizing the malleability of patent rights has profound consequences for discussions about emerging patent monetization strategies, for the patent system as a whole, and perhaps for views about rights over intangibles generally.

How Malleability Matters

In The Malleability of Patent Rights, I developed the concept that patent rights are malleable rather than static and fixed, and distinguished malleability from the idea that patent rights are merely uncertain. Malleability refers to the idea that the strength and scope of patent rights can be altered by the actors who interact with a patent well after it has issued. Patent law is full of mechanisms that allow for these post-issuance changes, and yet there seems to be no good theoretical argument that supports malleability. At best, I concluded, the costs of malleability must be weighed against the doctrinal cures, and perhaps those cures themselves would come with greater costs of their own. This Essay builds upon The Malleability of Patent Rights to explain how viewing patent rights as malleable can dramatically alter conventional narratives of the patent system, both those told by supporters of strong patent rights and those who argue that the patent system must be changed to favor competitors. In doing so, it provides examples of how the malleable nature of patent rights can present real problems for the patent system.

Why Priest-Klein Cannot Apply to Individual Issues in Patent Cases

The Priest-Klein hypothesis is commonly used to support the expectation of a fifty-percent success rate for patent holders on issues such as obviousness or inequitable conduct. As this essay explains, such a use of Priest-Klein is mathematically flawed. At best, the Priest-Klein hypothesis only applies to the selection of disputes, not the selection of individual issues. Due to the presence of multiple issues in patent cases, there is axiomatically no basis for inferring that a patentee would expect a fifty-percent chance of winning on each one. This essay supports its argument with theory and examples, demonstrating why application of the Priest-Klein hypothesis to individual issues - particularly in explaining or analyzing the results of empirical studies of doctrinal issue outcomes in patent law - is incorrect. This is not to say that such studies cannot yield useful and insightful results, but that conclusions about their meaning should not be based on deviations from a fifty-percent success rate.