The Yale Law Journal

May 2011

The Inducement Standard of Patentability

Michael Abramowicz & John F. Duffy

120 Yale L.J. 1590 (2011). 

In Graham v. John Deere Co., the Supreme Court explained that patent law’s nonobviousness doctrine is meant to restrict the award of patents to only “those inventions which would not be disclosed or devised but for the inducement of a patent.” This Article argues that this inducement standard, largely ignored in practice, should serve as the doctrinal polestar. Such an approach would provide a solid economic foundation for the patentability standard and would align patent law with the many other fields of regulatory law that currently apply economic analysis in determining the scope and content of regulation. The Article also offers several refinements to the inducement standard and explains how the Patent and Trademark Office and courts could implement the inducement standard in an administrable way.