Toward a doctrine of fair use in patent law

The intellectual property laws are becoming increasingly stressed as their largely time-worn doctrines grapple with problems posed by new technology. In this Article, Professor O'Rourke argues that this pressure has become particularly acute in patent law where policymakers have expanded protection without concomitantly evaluating the impact of that move on follow-on innovation. The traditional assumption that patentees will efficiently license their inventions is breaking down as market failures are becoming endemic. Professor O'Rourke argues that to ensure that patent law achieves its constitutional goals, it should, Wee copyright law, use a fair use defense to address problems of market failure. Professor O'Rourke proposes just such a defense that, while modeled on copyright doctrine, accounts for and protects patent late's particular incentive scheme.