Research Handbook on the Economics of Intellectual Property Law
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Research Handbook on the Economics of Intellectual Property Law

Vol 1: Theory Vol 2: Analytical Methods

Edited by Ben Depoorter, Peter Menell and David Schwartz

Both law and economics and intellectual property law have expanded dramatically in tandem over recent decades. This field-defining two-volume Handbook, featuring the leading legal, empirical, and law and economics scholars studying intellectual property rights, provides wide-ranging and in-depth analysis both of the economic theory underpinning intellectual property law, and the use of analytical methods to study it.
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Chapter 15: Presumption of validity

Christopher B. Seaman


By law, an issued U.S. patent is presumed valid in court. While Congress placed the burden of establishing a patent’s invalidity on the challenging party, it failed to specify the particular quantum of proof necessary to overcome this presumption. In a 2011 decision, Microsoft Corp. v. i4i Limited Partnership, the Supreme Court held a patent’s invalidity must be established by clear and convincing evidence. However, a jury may be instructed that prior art not previously considered by the U.S. Patent and Trademark Office (USPTO) can assist the challenger in satisfying its burden. Several recent empirical studies have sought to assess the impact of the presumption of validity following Microsoft v. i4i. These studies generally find that the clear-and-convincing evidence standard can have a material impact on invalidity decisions in litigation. In addition, these studies suggest that invalidity challenges based on prior art not previously considered by the USPTO are more likely to succeed.

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