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Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type


Publication Date

Winter 2016




Harvard Law School




Patent law and policy have received a surprising amount of attention from courts and policymakers in recent years. This attention is warranted because innovation policy is critical in determining the pace of innovation and the rate of economic growth. The reform proposals pending before Congress are motivated by widespread reports of abusive patent assertions and fears that patents sometimes stifle innovation. I favor most of the pending reforms and worry that our patent system, on balance, discourages innovation. But I part company from most reform proponents who focus on harms caused by the frivolous patent litigation mounted by many "non-practicing entities" (NPEs). Instead, I want to focus on deeper flaws in the U.S. patent system that existed before NPEs became very active and that continue today.

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