Sunday, September 24, 2006

Patent takings, Zoltek, and BULR

Adam Mosoff has an article coming up in the Boston University Law Review [BULR] that attacks the conventional wisdom that early courts never secured patents as constitutional private property under the Takings Clause.

28 USC 1498 was passed around the time of World War I, a time when the government was "taking" lots of patents, including the key patent of Wilbur and Orville Wright. [1498 was actually motivated by ships, not planes.] Thus, PRIOR TO World War I, a constitutional takings approach may have been necessary.

Maybe in the future, the Boston University Law Review can attack some of its own conventional wisdom:

The idea that there is an elevated grant rate has been challenged, first by Robert Clarke. The article by Lemley and Moore in the Boston University Law Review misrepresented the work of Robert Clarke on patent grant rate. Contrary to what Lemley and Moore said, Clarke did not assume that every continuation application resulted in a patent. With this assertion of Lemley and Moore invalidated, there is nothing within the Lemley and Moore article to distinguish between the models of Clarke and those of Quillen/Webster and no justification for saying that the patent grant numbers of Quillen/Webster are the best we have. In fact, they are not.

Look here.


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