The Inducement Standard of Patentability

Abstract

In Graham v. John Deere Co., the Supreme Court explained that patent law’s nonobviousness doctrine is meant to restrict the award of patents to only “those inventions which would not be disclosed or devised but for the inducement of a patent.” This Article argues that this inducement standard, largely ignored in practice, should serve as the doctrinal polestar. Such an approach would provide a solid economic foundation for the patentability standard and would align patent law with the many other fields of regulatory law that currently apply economic analysis in determining the scope and content of regulation. The Article also offers several refinements to the inducement standard and explains how the Patent and Trademark Office and courts could implement the inducement standard in an administrable way. authors. Michael Abramowicz is Professor of Law, George Washington University. J.D., Yale Law School. John F. Duffy is Oswald Symister Colclough Research Professor of Law, George Washington University. J.D., University of Chicago Law School. The authors would like to thank Beverly Chang, Ashkan Eshghi, and Alan Lau for research assistance, Ed Walterscheid, Arti Rai, and Ed Kitch, as well as participants in a University of Virginia workshop and a Federal Trade Commission-Department of Justice workshop. The authors also thank the Kauffman Foundation and the George Washington University Law School for financial support. the inducement standard of patentability 1591 article contents