ABSTRACT
The vast majority of patents do not matter. They are never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has tremendous impact on patent policy. In particular, while there are many aspects of patent law that are potentially troubling – including grant of unmerited patents, high transaction costs in obtaining necessary patent licenses, and patents’ potential to block innovation and hinder economic growth – these problems may be insignificant in practice because patents are underenforced and routinely infringed without consequence.
This Article argues that technological developments are greatly increasing the salience of patents by making patents easier and cheaper to find and enforce. These developments – including private platforms’ adjudication systems and AI-driven patent analytics – profoundly impact how the patent system functions and upend the system’s present dependence on underenforcement and ignorance. Where most patents could previously be safely disregarded, formerly forgotten patents now matter ….
Freilich, Janet, Patents’ New Salience (July 23, 2022). Virginia Law Review, Forthcoming.
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