Herbert Hovenkamp: Patent Exclusions and Antitrust After Therasense

While Therasense has received a significant amount of coverage due to its implications on the inequitable conduct defense, few have discussed its implications in other areas. In Patent Exclusions and Antitrust After Therasense, Professor Herbert Hovenkamp of the University of Iowa takes the opportunity to analyze the potential implications of Therasense on patent exclusion suits.

Jonathan Masur: The Ever Expanding Patent System

Could the commonly cited flaws of the patent system be caused by the underlying relationship of its two main players, the PTO and the Federal Circuit? The patent system has come under attack in recent years in light of the growing number of invalid or weak patents and an ever-expanding definition of what can be patented. Critics have blamed this expansion (or “patent inflation”) on a number of factors including lack of funding, capture by private interests, and lack of expertise. In Patent Inflation, Jonathan Masur, a professor at the University of Chicago Law School, suggests this phenomenon may have a more fundamental source—the institutional relationship between the PTO and the Federal Circuit.

In his thought-provoking article, Masur suggests that the administrative nature of patent law creates institutional pressure to expand the boundaries of patentability. He arrives at this novel theory by combining a few simple, yet profound, observations into a model that predicts patent expansion.