In his engaging essay, The Trespass Fallacy in Patent Law, Professor Adam Mossoff challenges the reasoning of prominent commentators who criticize the patent system on the basis that patent claims are not as clear and determinate as real property boundaries. Professor Mossoff’s essay reminds us that whether uncertainty in patent law is grounds for concern, let alone systematic reform, depends on our baseline for comparison, and astutely identifies an important weakness in the writings of critics who rely on inaccurate conceptual analogies between patents and land, and an unproven assumption that real property disputes over estate boundaries are rare and efficiently resolved. However, we worry that Professor Mossoff’s conclusion that patent reform should be postponed until all empirical uncertainty is resolved overestimates the significance of the trespass fallacy critique.
Hrdy, Camilla Alexandra and Picozzi, Ben V, The Trespass Fallacy’s Limits (September 12, 2014). 65 Florida Law Review Forum 42 (2014) .