Optimal Patent Jurisprudence

Intellectual Property and Patents

Article Snapshot


Scott A. Baker and Claudio Mezzetti


TILEC Discussion Paper No. 2009-006, 2009


The authors model patent law and come to several conclusions about judicial learning in reaching optimal decisions.

Policy Relevance

Patent law has been described as difficult to decipher, to predict, and to find consistent. However, modeling patent law, assuming that judges and courts make decisions with policy leanings in mind, results in finding that the courts control their own learning. So, a model of decision-making can be produced.

Main Points

  • Courts make most of patent law through common law case-by-case decisions. Narrow decisions do not influence the stream of future cases very much, while broad decisions have a big effect on the type of cases the court will decide in the future.
  • A narrow decision does not have a large effect but it also has a much smaller chance of being wrong. A broad decision on the other hand has a large effect but also a much greater chance of being wrong.
  • New issues in patent law will cause the law in that area to “jump around a lot” initially because the courts are learning.
  • The law will eventually settle on each issue. Sometimes it will settle because the best doctrine has been reached, but this is not always the most precise legal rule, sometimes it occurs because the cost of the court collecting more data is higher than the benefit of a more precise rule.
  • Sometimes the court will settle on imperfect doctrines or “doctrinal traps.” This is because efficiency and the best use of resources are preserved by sidestepping issues though lack of jurisdiction, mootness, or refusals to grant certiorari.
  • How long it takes a court to settle on an issue may be due in part to the order in which cases happen to be brought. Thus, there is some luck involved, and there is also the chance that courts sometimes get the first case right and sometimes it takes them longer to learn and eventually get it right.
  • An important takeaway is that inconsistency in judicial decision-making is not necessarily bad. It may in fact be more efficient.
  • The way that judges learn through opinion writing can be mapped and reveals how patent doctrine evolves.

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