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Abstract

A crisis point is emerging at the nexus of patent law and economics. Patent rights are designed to serve as an incentive to invest in innovation. However, notoriously high litigation costs, a proliferation of invalid patents in the marketplace, and an inability to enforce low-value patents are threatening to inhibit the progress of science and the useful arts. This Comment argues that the defendant class action mechanism is necessary to achieve the patent system’s goals and to address the aforementioned issues. After analyzing the economic, substantive, and procedural advantages of defendant class actions and examining the obstacles preventing the creation of defendant classes of patent infringers under the Federal Rules of Civil Procedure, this Comment advocates a workable, three-part framework designed to reconcile the utility of defendant class actions with the incompatible provisions of Rule 23.

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