John M. Golden
92 Texas L. Rev. 2075
With the advent of the “Information Age,” most judges, lawmakers, and scholars tend to focus on high tech fields when discussing U.S. patent law. However, in this article, Professor Golden suggests that there may be substantial commonalities between the subject matter of present-day patents and the subject matter of patents typical of the Industrial Revolution. While performing an empirical study, Professor Golden found that many of the patents issued today cover relatively straighforward “machines and manufactures” and, further, that these simple patents play a disproportionate role in the granting of injunctive relief by U.S. district courts. These relatively mundane cases are surprising given the conventional view that patent litigation involves high stakes and costs. Professor Golden explores the implications of this discovery by first using a rational profit-maximizer model to confirm the commonly invoked bases for the view that patent litigation involves high-stakes. He then discusses the nature and contents of a patent-infringement injunction data set. Finally, Professor Golden explores potential explanations for the frequent mundanity of the subject matter targeted by injunctions in that data set.