Free Market Economics Provides the 'Obvious' Solution

Abstract

Perhaps the most fundamental question in patent law is whether or not a given invention is patentable. Nonetheless, despite a half century of experience with the modern patent statute, this question still cannot be answered reliably. Courts use one of two conflicting approaches. The subjective approach better empowers courts to revoke "junk patents." The objective approach provides a more predictable decision-making procedure. Given the negligible economic detriment caused by "junk patents," the subjective approach appears to undermine judicial predictability needlessly.