Res or Rules - Patents and the (Uncertain) Rules of the Game

The Article proceeds as follows. Part I reviews the basics of patent claiming, the traditional view of claims as real property deeds, and why uncertainty as to the boundaries of those deeds is considered undesirable. Part II critiques the analogy between real property deeds and patent claims, highlighting in particular the requisite novelty and conceptual nature of the patent res, the differences between the purposes of the patent system and real property regimes, and the effect of these different purposes on the expected predictability of patent boundaries. Part III then changes the analogy from patent claims as property deeds to patent claims as rules of governance, noting the advantages and limitations of this analogy.

The Article concludes with a discussion of patent claims not just as rules of governance but also as blends of rules and standards in their need to anticipate often unpredictable circumstances.