Wednesday, February 9, 2011

Michael Risch: Reinventing Usefulness

Few academics have recently been able to offer a novel (or useful?) take on the utility requirement, but I enjoyed Reinventing Usefulness by Michael Risch (Villanova Law), which has just been posted in its edited version (for the BYU Law Review). Risch makes the thought-provoking argument that we should introduce a "commercial utility" requirement (pp. 1240-41): "The proposed test would find commercial utility present with sufficient evidence to convince a person with skill in the art that a) there is a market for the invention, and that b) the invention can be manufactured at a cost sufficient to fulfill market demand. Given that more than 50% of patents wind up being worthless, an initial review to determine which patents are most likely to be worthless should be practically achievable." For a nice review of an earlier draft of this article, see John Duffy's post at Jotwell: Patent Utility Reduxit

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