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As with any area of law, rights and duties relating to patents should be clearly communicated in an efficient manner. Unfortunately, uncertainty concerning the scope of the rights granted by patents frequently results in expensive litigation. Most proposals for reducing this uncertainty do not examine its root causes and focus only on measures to provide additional clarification in patent applications. Such ex ante proposals are often inefficient because considerable uncertainty is inherent, given the limits of language and of our ability to foresee future developments. In addition, ex ante clarification often would be wasteful because so few patents are valuable enough to be contested. Therefore, ex post clarification of patent scope after potentially infringing activities have occurred would be more efficient than efforts to clarify exclusively through ex ante measures. More specifically, two ex post techniques should be adopted. First, courts should recognize that patents often cannot communicate ex ante the scope of patent rights and should adjust certain patent law doctrines accordingly. Second, an administrative procedure should be established to cheaply clarify patent scope after a patent has issued.


Reprinted in 41 Intel. Prop. L. Rev. 45 (2009) (anthology of the annual best intellectual property law review articles).