Herbert Hovenkamp

88 Texas L. Rev. See Also 221

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Prof. Hovenkamp evaluates Prof. Golden’s proposals in Principles for Patent Remedies, arguing for the addition of an additional principle: notice. The author writes, “remedies must be administered so as to encourage optimal and timely private disclosure as well as optimal, cost-justified private search.”

Like other property rights regimes, patent law should have an effective system for giving notice and for providing incentives to respond to notice once given. Analogizing to the real property system, Hovenkamp describes several important principles of notice systems. Such systems generally require collaboration by government officials and private-market participants. Moreover, the duty to provide or obtain notice ought to be placed on the party that can do so at the lowest cost. In line with this reasoning, Hovenkamp writes that when recording is cheaper than searching, the burden should be placed on the recorder. And where interests are not recorded, the owner’s duty to provide alternative kinds of notice is expanded.

With these principles of notice in hand, Hovenkamp turns to the patent-recording system. He finds that it is not nearly as reliable as the real property system. Although highly technical rules for drafting patent claims exist, the language of such claims lacks the clarity of deed descriptions. In addition, patent searches are not only more costly but highly unreliable.

Some of these problems are of course inherent to the patent system. But, aruges Hovenkamp, patent law should take a lesson from real property. Where the notice system breaks down, patent law should impose a duty upon owners to compensate by providing effective notice. In light of this, the author discusses the “late claim” feature of patent law, using the Rambus case as an example of its flaws and how to fix it. After addressing some other patent-damages issues related to notice, Hovenkamp concludes that as patents have come to resemble a kind of property rather than a monopoly—a good thing—it ought to be treated as such. The notice system of patent law, then, is “an essential policy lever that can aid a court in determining the remedy most consistent with the innovation-furthering goals of the patent system.”