Open Source Innovation, Patent Injunctions, and the Public Interest

35 Pages Posted: 11 Dec 2017

See all articles by James Boyle

James Boyle

Duke University School of Law

Date Written: March 18, 2012

Abstract

This Article explores the difficulties that high technology markets pose for patent law and, in particular, for patent injunctions. It then outlines the ways in which “open source innovation” is unusually vulnerable to patent injunctions. It argues that courts can recognize this vulnerability, and respond to the particular competitive and innovative benefits of open source innovation, by flexibly applying the Supreme Court’s ruling in eBay v. MercExchange. Having dealt with the lamentable failure of the International Trade Commission to exercise a similar flexibility in its own patent jurisprudence, despite statutory and constitutional provisions that counsel otherwise, the Article concludes with some recommendations for reform.

Suggested Citation

Boyle, James, Open Source Innovation, Patent Injunctions, and the Public Interest (March 18, 2012). Duke Law & Technology Review, Vol. 11, No. 1, 2012, Available at SSRN: https://ssrn.com/abstract=3084088 or http://dx.doi.org/10.2139/ssrn.3084088

James Boyle (Contact Author)

Duke University School of Law ( email )

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