How Malleability Matters

Abstract

In The Malleability of Patent Rights, I developed the concept that patent rights are malleable rather than static and fixed, and distinguished malleability from the idea that patent rights are merely uncertain. Malleability refers to the idea that the strength and scope of patent rights can be altered by the actors who interact with a patent well after it has issued. Patent law is full of mechanisms that allow for these post-issuance changes, and yet there seems to be no good theoretical argument that supports malleability. At best, I concluded, the costs of malleability must be weighed against the doctrinal cures, and perhaps those cures themselves would come with greater costs of their own. This Essay builds upon The Malleability of Patent Rights to explain how viewing patent rights as malleable can dramatically alter conventional narratives of the patent system, both those told by supporters of strong patent rights and those who argue that the patent system must be changed to favor competitors. In doing so, it provides examples of how the malleable nature of patent rights can present real problems for the patent system.