Increased Market Power as a New Secondary Consideration in Patent Law

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American University Law Review, Vol. 58, 2009

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Andrew Blair-Stanek
patent law; antitrust law; secondary considerations; law and economics
paper description
Courts have developed nine non-technical secondary considerations to help juries and judges in patent litigation decide whether a patent meets the crucial statutory requirement of being non-obvious. This article proposes a new, tenth secondary consideration: increased market power. If a patent measurably increases its holders’ market power, that should weigh in favor of finding the patent non-obvious. This new secondary consideration incorporates the predictive benefits of several existing secondary considerations, while increasing the accuracy and availability of evidence for fact-finders to determine whether a patent is non-obvious.