In light of the class readings regarding contemporary Supreme Court decisions of Patent Law, I found an interesting law review article that argues that the Patent System is outdated. The author contends that the Patent System as we know it today was built upon traditional notions of innovation being limited to an individual effort. The author identifies innovation today as being a group movement, or “entity” and that the Patent System is thus ill-equipped to accommodate modern innovations.
This is an interesting perspective particularly in regards to the Ebay v MercExchange LLC case. The innovation at issue there was patent rights for an e-commerce marketplace. The court referred to the Copyright Act and Fox Film Corp v Doyal, where the holding emphasized that copyrights and patents are to reward the “skill of individuals” (emphasis added). This type of reasoning is exactly what the author of this law review article is talking about when arguing that the Patent System no longer parallels with modern, group type innovation.
I thought this article raised an interesting point (that you also raised). I feel the patent system is outdated in this respect as well. The patent system reflecting a very individualistic mindset seems very American. Maybe in the past innovation was more about the one inventor in his garage pulling himself up by his bootstraps, but today the reality is just different. Innovation is a much more collaborative effort. Also, today’s age is much less about a brand new concept or technology and much more just advancing existing technology. The new reality of innovation should be reflected in our patent system and evolve. (maybe with the help of the courts)
Nathan, great article. Though the patent system was probably appropriate at the time that it was created, it has evolved to become more collaborative and the system needs to adapt. The author emphasizes that there is a continuing need to recognize the change in the innovator’s identity. This recognition would allow policymakers to rethink the structure of the patent system to ensure that it fosters innovation.
I have attached a Forbes article that lists four reasons why collaborations are vital to innovation: they enhance business insights, they scale your network, they speed up research and development, and they open doors to distribution.
https://www.forbes.com/sites/simonmainwaring/2017/12/09/why-collaboration-is-key-to-brand-innovation-and-impact-a-pg-case-study/#3a8624ba52bc
Fascinating article, Nathan. I came across another patent article that discusses some of the challenges of litigation in the patent cases that I thought was interesting.
Among its many points, the article evaluates how patent litigation takes place today, with a particular focus on settlements in patent cases. I thought the article’s parallel between patent litigation and video games was especially poignant, arguing that a litigant “must win [at] every level [of the litigation process] to end up the winner.” Furthermore, “[I]f you lose any one level, no matter how far you’ve come, then it’s game over.” It seems patent litigation functionally acts as a gambling scheme, where you can double down and try to win a larger recovery at a later stage in litigation or fold earlier and settle, taking a smaller, guaranteed amount in recovery. I wonder in what ways the patent process can be modernized to reform the gamble it is today into a system of law placed comfortably in the 21st century.
See the article here: https://www.lexology.com/library/detail.aspx?g=83faed64-c9ca-47ba-83a2-d80f9ea36c23