Thomas F. Cotter—An Economic Analysis of Patent Law’s Inequitable Conduct Doctrine

Does the inequitable conduct doctrine induce an optimal level of disclosure by patentees? In his article An Economic Analysis of Patent Law’s Inequitable Conduct Doctrine, 53 Ariz. L. Rev. 735 (2011), Professor Thomas F. Cotter (Briggs and Morgan Professor of Law, University of Minnesota Law School) suggests that despite reforms post-Therasense, the inequitable conduct doctrine lacks the requisite clarity to encourage efficient disclosure and may consequently induce risk-averse agents to overdisclose.

Tun-Jen Chiang: The Upside Down Inequitable Conduct Defense

Is the doctrine of inequitable conduct adequately tailored to deter patent fraud? In The Upside Down Inequitable Conduct Defense (forthcoming Northwestern University Law Review), Professor Tun-Jen Chiang argues that the inequitable conduct defense is improperly tailored because it creates too much deterrence for minor errors while providing inadequate deterrence for serious patent fraud. This inequity gives rise to three implications: (1) patentees have upside-down incentives to engage in dishonest conduct; (2) the variability of the penalty produces upside-down incentives for accused infringers in litigation; and (3) reform should focus more on adjusting the remedy for inequitable conduct, and less on the standard for attaching liability.