REFORMING PATENT VALIDITY LITIGATION: THE "DUBIOUS PREPODERANCE"

• Published in: Berkeley technology law journal Vol. 19; no. 3; p. 923
• Main Author: Janis, Mark D
• Format: Journal Article
• Language: English
• Published: Berkeley University of California, Boalt Hall School of Law 01-07-2004
• Subjects: Legal reform; Litigation; Validity; United States > US
• ISSN: 1086-3818; 2380-4742

Major reports on the patent system compiled by the Federal Trade Commission (FTC) and the National Academy of Sciences (NAS) advocate a number of reforms touching on both the administrative processes of the patent system and the treatment of patent rights in the courts. The FTC Report identifies patent litigation as one area in need of scrutiny and selects the presumption of patent validity in patent litigation as a particular target for reform. This article critically examines the FTC's proposals concerning the presumption of validity. It first identifies two general functions of presumptions in law, the expressive and instrumental functions. It then argues that the FTC's proposal overlooks the expressive function of the presumption of patent validity, and considers the insights that might be gained from considering the expressive function. Finally, it analyzes the FTC's arguments touching on the instrumental function of the presumption of validity, and concludes that they are plausible, but deserve refinement and further probing.