Boston University School of Law

Toward a Doctrine of Fair Use In Patent Law
Maureen A. O'Rourke

Columbia Law Review, Volume 100, No. 5 (June 2000).
Boston University School of Law Working Paper 00-12 (posted August 8, 2007)


The intellectual property laws are becoming increasingly stressed as their largely time-worn doctrines grapple with problems posed by new technology. In this Article, Dean 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. Dean O'Rourke argues that to ensure that patent law achieves its constitutional goals, it shuld, like copyright law, use a fair use defense to address problems of market failure. Dean O'Rourke proposes just such a defense that, while modeled on copyright doctrine, accounts for and protects patent law's particular incentive scheme.


Published In:

Maureen A. O'Rourke, "Toward a Doctrine of Faire Use in Patent Law," Columbia Law Review, Volume 100, No. 5 (June 2000).

Copyright 2000 by Directors of the Columbia Law Review Association, Inc.


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Maureen A. O'Rourke Contact Information

Dean, Boston University School of Law
765 Commonwealth Avenue
Boston, MA 02215

Phone: (617) 353-3112 (office)



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