Evaluating Mistakes in Intellectual Property Law: Configuring the System to Account for Imperfection

In this Essay, the author argues that in assessing the performance of the intellectual property laws, it is useful to conceive of intellectual property law as a system comprised of both interacting decision-makers and other sets of law. Those decisionmakers include Congress, the PTO, and courts, and the other relevant laws include antitrust and contract. The author reviews the major intellectual property statutes, illustrating ways in which different institutions may be situated to correct the errors of another and how antitrust and contract also can work to correct errors in the scope of protection. The Essay concludes by arguing that the real challenge for the future is to formulate a consistent theoretical paradigm to guide institutions in decision-making and reduce the probability and cost of mistakes