Abstract
Response to Adam Mossoff, The Trespass Fallacy in Patent Law
In The Trespass Fallacy in Patent Law, Professor Adam Mossoff details how patent law jurisprudence and scholarship is dominated by an indeterminacy critique or “trespass fallacy” in two respects. First, describing conceptual error, Professor Mossoff details how judges and academics have improperly conflated the entire legal rights of patent title to the single legal doctrine of property law trespass. Second, focusing on empirical error, Professor Mossoff describes how the indeterminacy critiques of patents utilize only an idealized theory of how trespass is thought to function, without formal empirical data regarding how trespass or other real property boundaries actually function within litigation. Professor Mossoff’s essay makes an important contribution to patent law scholarship by breaking through this improper rhetoric and exposing the misleading and unverified indeterminacy critiques of patents for what they are—trespass fallacies.
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