By: Kelly Casey Mullally
Concern for certainty is ubiquitous in the law. Some degree of determinacy in the content and application of laws is necessary for individuals to identify the scope of their rights and to ensure that their conduct conforms with legal constraints. In patent law, lack of determinacy has the potential to undermine a fundamental goal of the patent system-providing an incentive for creators to invent and to publicly disclose their inventions. A patent (the incentive) is only as valuable as the laws that give force to it. With an exceedingly uncertain reward, the incentive effect may diminish. Recent criticism of patent law and the institutions that apply it, particularly the U.S. Court of Appeals for the Federal Circuit, has asserted that patent law suffers from an unreasonably high level of uncertainty or unpredictability that threatens the patent system’s ability to stimulate innovation. Yet many of the demands for certainty in patent law have been vague and fail to present.
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