Florida Law Review Volume 65 | Issue 6 Article 1 October 2013 The rT espass Fallacy in Patent Law Adam Mossoff Follow this and additional works at: http://scholarship.law.ufl.edu/flr Part of the Intellectual Property Commons, and the Property Law and Real Estate Commons Recommended Citation Adam Mossoff, The Trespass Fallacy in Patent Law , 65 Fla. L. Rev. 1687 (2013). Available at: http://scholarship.law.ufl.edu/flr/vol65/iss6/1 This Essay is brought to you for free and open access by UF Law Scholarship Repository. It has been accepted for inclusion in Florida Law Review by an authorized administrator of UF Law Scholarship Repository. For more information, please contact
[email protected]. Mossoff: The Trespass Fallacy in Patent Law Florida Law Review Founded 1948 VOLUME 65 DECEMBER 2013 NUMBER 6 ESSAYS THE TRESPASS FALLACY IN PATENT LAW Adam Mossoff∗ Abstract The patent system is broken and in dire need of reform; so says the popular press, scholars, lawyers, judges, congresspersons, and even the President. One common complaint is that patents are now failing as property rights because their boundaries are not as clear as the fences that demarcate real estate—patent infringement is neither as determinate nor as efficient as trespass is for land. This Essay explains that this is a fallacious argument, suffering both empirical and logical failings. Empirically, there are no formal studies of trespass litigation rates; thus, complaints about the patent system’s indeterminacy are based solely on an idealized theory of how trespass should function, which economists identify as the “nirvana fallacy.” Furthermore, anecdotal evidence and other studies suggest that boundary disputes between landowners are neither as clear nor as determinate as patent scholars assume them to be.