Document Type

Working Paper

Publication Date

5-10-2007

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Private Law eJournals; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Intellectual Property Law eJournals

Abstract

The patent system suggests a natural symmetry if nonobvious changes are enough to distinguish a patentable invention from the prior art then further nonobvious changes should be enough to avoid infringing the patent Logical as this seems the courts have adopted the notoriously difficult standard of insubstantial differences rather than nonobviousness as the ultimate test of infringement In this article I consider the possibility of a genuinely symmetrical patent system and find the difficulties profound However I conclude that a semisymmetrical adaptation of the nonobviousness standard of patentability could provide a superior infringement analysis an analysis more objective in application and more consistent with the economic framework of patent doctrine

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