Constructing an Objective History of the U.S. Patent System

2020 ◽  
pp. 65-88
Author(s):  
Jonathan M. Barnett
Keyword(s):  
Patent Law ◽  
Patent System ◽  
Antitrust Law ◽  
Historical Trends ◽  
Qualitative Evidence ◽  
System P ◽  
Injunctive Relief ◽  
History Of ◽  
Patent Applications ◽  
The U.S

This chapter presents a history of the U.S. patent system based on quantitative and qualitative evidence relating to patentees’ expectations that courts will uphold the validity of contested patents, find infringement, and award injunctive relief against infringing parties. Additionally, this chapter describes historical changes in antitrust law that have impacted patentees’ ability to enter into licensing and other patent-dependent transactions. Based on these features of patent law and antitrust-related patent law, supplemented by background institutional developments, the history of the U.S. patent system during 1890–2006 consists of three periods: (i) a strong-patent, weak-antitrust period from 1890 through the mid-1930s; (ii) a weak-patent, strong-antitrust period from the late 1930s through the 1970s; and (iii) a strong-patent, weak-antitrust period from the early 1980s through 2006. Historical trends in the volume of patent applications by U.S. inventors are consistent with this division of U.S. patent history.

scholarly journals The Surprising Resilience of the Patent System

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Patent Law ◽  
Patent System ◽  
Legal Doctrine ◽  
Legislative Reform ◽  
System P ◽  
Patent Rights ◽  
Legal Challenges ◽  
New Business ◽  
Patent Applications

The patent system seems in the midst of truly dramatic change. The lasttwenty years have seen the rise of a new business model – the patent troll– that grew to become a majority of all patent lawsuits. They have seen asignificant expansion in the number of patents granted and a fundamentalchange in the industries in which those patents are filed. They have seenthe passage of the most important legislative reform in the last sixtyyears, a law that reoriented legal challenges to patents away from courtsand toward the Patent and Trademark Office (PTO). And they have seenremarkable changes in nearly every important legal doctrine, from patenteligibility to obviousness to infringement to remedies.These changes have prompted alarm in a number of quarters. From the 1990sto the 2000s, as the number of patents and patent troll suits skyrocketed,technology companies and academics worried about the “crisis” in the patentsystem – a crisis of overprotection that might interfere with rather thanpromote innovation. By 2015, as patent reform took effect and the SupremeCourt undid many of the Federal Circuit’s expansions of patent rights, itwas patent owners who were speaking of a crisis in the patent system – acrisis of underprotection that might leave innovators without adequateprotection. Depending on one’s perspective, then, the sky seems to havebeen falling on the patent system for some time.Despite the undeniable significance of these changes in both directions,something curious has happened to the fundamental characteristics of thepatent ecosystem during this period: very little. Whether we look at thenumber of patent applications filed, the number of patents issued, thenumber of lawsuits filed, the patentee win rate in those lawsuits, or themarket for patent licenses, the data show very little evidence that patentowners and challengers are behaving differently because of changes in thelaw. The patent system, then, seems surprisingly resilient to changes inthe law. This is a puzzle. In this article, I document this phenomenon andgive some thought to why the fundamental characteristics of the patentsystem seem resistant to even major changes in patent law and procedure.The results pose some profound questions not only for efforts at patentreform but for the role of the patent system in society as a whole.

An Organizational History of the U.S. Patent System

2020 ◽  
pp. 89-114
Author(s):  
Jonathan M. Barnett
Keyword(s):  
Supply Chains ◽  
Government Funding ◽  
Third Parties ◽  
Patent System ◽  
Organizational History ◽  
System P ◽  
Contractual Relationships ◽  
History Of ◽  
Firm Structures ◽  
The U.S

This chapter presents a novel organizational history of the U.S. patent system during 1890–2006. Based on a division of U.S. patent history into two strong-patent/weak-antitrust periods (1890 to mid-1930s and 1980s to 2006) and one weak-patent/strong-antitrust period (late 1930s to 1970s), it describes evidence relating to concurrent changes in the mix of organizational forms used to structure the innovation and commercialization process. Both strong-IP periods are characterized by substantially disaggregated supply chains in which innovators enter into financing, licensing, and other contractual relationships with third parties to execute the commercialization process. By contrast, the weak-IP regime that prevailed during the postwar decades principally supported innovation by large integrated firms, often supplemented by extensive government funding. Historical organizational trends support the hypothesis that weak-IP regimes shift innovation and commercialization activities toward integrated firm structures, while strong-IP regimes sustain organizationally diverse innovation ecosystems that support a range of integrated and disintegrated structures.

Digitalized Invention, Decentralized Patent System

2021 ◽  
pp. 120-144
Author(s):  
Feroz Ali
Keyword(s):  
Artificial Intelligence ◽  
New Technologies ◽  
Digital Photography ◽  
Patent Law ◽  
Patent System ◽  
Patent Office ◽  
Working Models ◽  
System P ◽  
History Of

Throughout the history of patent law, the manner of representation of invention influenced the process of the patent office in prosecuting them. This chapter traces how changes in the representation of the invention—from material to textual to digital—transformed patent prosecution. Early inventions were represented by working models, the materialized invention that needed little or no examination by the patent office, as they were the inventions themselves. Substantive examination became necessary when the representation of the invention shifted from material to textual, the point in history where the invention became textualized and represented by the patent specification, the written document that encompassed the invention. The textualized invention, apart from effecting critical changes in patent prosecution, centralized the operations of the patent office. With the adoption of new technologies like blockchain and artificial intelligence (AI), the manner of representation of invention will undergo yet another change resulting in the further evolution of patent prosecution. Like digital photography which changed the representation of images by radically changing the backend process, the digitalized invention will change the backend process of the patent office, ie, patent prosecution. The most significant systemic consequence of the digitalization of the invention will be the decentralization of patent system.

Why SEPs have been involved in Antitrust Cases – From A Chinese Scholar’s Perspective

2017 ◽  
Vol 15 (1) ◽  
pp. 72-87 ◽  
Author(s):  
Xiaoye Wang
Keyword(s):  
Public Interest ◽  
Standard Setting ◽  
Patent Law ◽  
Antitrust Law ◽  
Antitrust Enforcement ◽  
Technical Standard ◽  
The Public ◽  
Injunctive Relief ◽  
Standard Essential Patents ◽  
Antimonopoly Law

AbstractIf patents have been included in a technical standard and thus have become standard essential patents (SEPs), the SEP holders normally have to commit to the Standard Setting Organization (SSO) to license their SEPs on fair, reasonable and non-discriminatory (FRAND) terms. Although the FRAND commitments already put constraints on the patentees, more and more disputes over FRAND licensing fees involving SEPs are reaching antitrust enforcement agencies and courts, perhaps due to the fact that the FRAND commitments are often not workable. As demonstrated in the case Huawei v. IDC in Chinese courts, SEPs have special characteristics compared to non-SEPs, i.e. the licensing of SEPs relates more to the public interest, the holders of the SEPs may be thought to have dominant positions in the licensing market of their SEPs, the holder of the SEPs often have made commitments to license on the FRAND terms, and the holder of the SEPs should be allowed to use the injunctive relief only in limited circumstances. This article also proposes that Article 55 of the Chinese Antimonopoly Law (AML) should be reconsidered because it exempts the undertakings who exercise their IPRs in accordance with the laws and administrative regulations on IPRs from the application of the AML. However, as this article shows, the excessive royalty requested or the injunction sought by the holder of SEPs may not violate the patent law, but nonetheless may violate the antitrust law.

Innovators, Firms, and Markets

2020 ◽  
Author(s):  
Jonathan M. Barnett
Keyword(s):  
Patent Protection ◽  
Patent System ◽  
Venture Capitalists ◽  
Organizational History ◽  
Innovation Ecosystems ◽  
Technical Requirements ◽  
Organizational Type ◽  
Production And Distribution ◽  
History Of ◽  
The U.S

This book presents a theoretical, historical, and empirical account of the relationship between intellectual property (IP) rights, organizational type, and market structure. Patents expand transactional choice by enabling smaller research-and-development (R&D)-intensive firms to compete against larger firms that wield difficult-to-replicate financing, production, and distribution capacities. In particular, patents enable upstream firms that specialize in innovation to exchange informational assets with downstream firms that specialize in commercialization, lowering capital and technical requirements that might otherwise impede entry. These theoretical expectations track a novel organizational history of the U.S. patent system during 1890–2006. Periods of strong patent protection tend to support innovation ecosystems in which smaller innovators can monetize R&D through financing, licensing, and other relationships with funding and commercialization partners. Periods of weak patent protection tend to support innovation ecosystems in which innovation and commercialization mostly take place within the end-to-end structures of large integrated firms. The proposed link between IP rights and organizational type tracks evidence on historical and contemporary patterns in IP lobbying and advocacy activities. In general, larger and more integrated firms (outside pharmaceuticals) tend to advocate for weaker patents, while smaller and less integrated firms (and venture capitalists who back those firms) tend to advocate for stronger patents. Contrary to conventional assumptions, the economics, history, and politics of the U.S. patent system suggest that weak IP rights often shelter large incumbents from the entry threat posed by smaller R&D-specialist entities.

The New Patent Regime

2017 ◽  
Author(s):  
Murphy Halliburton
Keyword(s):  
Low Cost ◽  
Standard Of Care ◽  
Patent Law ◽  
New Drugs ◽  
Essential Medicines ◽  
System P ◽  
Patent Laws ◽  
Patent Applications ◽  
Indian Supreme Court ◽  
Silver Lining

This chapter examines efforts to resist the implementation of the new patent regime in India out of concern for the price of essential medicines. The Indian pharmaceutical sector has been a principle source of low cost medicines for developing countries, but may no longer be able to produce inexpensive copies of medications patented elsewhere. India’s WTO-compliant patent law has a silver lining, however, since it requires companies to demonstrate increased effectiveness of new drugs over the standard of care, provisions against “evergreening” of patents that are not required by US patent laws. Activists in India have been able to defeat several recent patent applications under this provision. The pharmaceutical giant Novartis challenged this provision in the Indian Supreme Court while at the same time the company was holding patents for medical products that were derived from India’s indigenous ayurvedic medical system.

Product Hopping

2017 ◽  
Vol 23 (2) ◽  
Author(s):  
Michael Carrier
Keyword(s):  
Drug Product ◽  
Patent Law ◽  
Decision Makers ◽  
Insurance Companies ◽  
Antitrust Law ◽  
Brand Name ◽  
Product Selection ◽  
Regulatory Frameworks ◽  
Antitrust Analysis ◽  
The U.S

One of the most pressing issues in antitrust law involves “product hopping.” A brand-name pharmaceutical company switches from one version of a drug (say, capsule) to another (say, tablet). The concern with this conduct is that some of these switches offer only a trivial medical benefit but significantly impair generic competition.The antitrust analysis of product hopping is nuanced. In the U.S., it implicates the intersection of antitrust law, patent law, the Hatch-Waxman Act, and state drug product selection laws. In fact, the behavior is even more complex because it involves uniquely complicated markets characterized by buyers (insurance companies, patients) who are different from the decision-makers (physicians).This article introduces the relevant U.S. laws and regulatory frameworks before exploring the five litigated cases.

THE EUROPEAN PATENT: AN OLD AND VEXING PROBLEM

2013 ◽  
Vol 62 (4) ◽  
pp. 917-940 ◽  
Author(s):  
Justine Pila
Keyword(s):  
European Parliament ◽  
Patent Law ◽  
Patent System ◽  
European Patent ◽  
International Patent ◽  
History Of ◽  
The Creation ◽  
Post War ◽  
Rich History ◽  
Vexing Problem

AbstractIn December 2012, the European Parliament supported the creation of a European patent with unitary effect. For the next year at least, the international patent community will be on the edge of its proverbial seat, waiting to see whether the proposal becomes a reality. If it does, it will be a significant event in both the long and rich history of patent law, and in the equally rich and understudied history of attempts to create a European patent system. In this article I consider the three post-war European patent initiatives of the most direct and enduring relevance in that regard with a view to answering the following questions. First, what drove them? Second, what issues confronted them? And third, how were those issues resolved and with what ultimate effect? In the concluding section I relate the discussion back to the present by offering some remarks on the current European patent proposal in light of the same.

4 Decisions and Orders of International Institutions

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
Legal System ◽  
International Institutions ◽  
The United States ◽  
Criminal Court ◽  
Vienna Convention ◽  
System P ◽  
International Court ◽  
The Status ◽  
History Of ◽  
The U.S

This chapter considers the status in the U.S. legal system of decisions and orders of international institutions to which the United States is a party. It begins with a description of various constitutional doctrines and principles that are potentially implicated by delegations of authority to international institutions, as well as general concerns that have been raised about such delegations relating to democratic accountability. The chapter also recounts the long history of U.S. engagement with international arbitration and the constitutional debates that this engagement has sometimes triggered. Extensive consideration is given to litigation concerning the consular notice provisions in the Vienna Convention on Consular Relations, including efforts by criminal defendants to enforce decisions by the International Court of Justice (ICJ) interpreting these provisions. The U.S. relationship with other international institutions, such as the World Trade Organization and the International Criminal Court, are also considered. The chapter concludes by discussing the extent to which constitutional concerns relating to international delegations can be adequately addressed by presuming that the orders and decisions of international institutions are non–self-executing in the U.S. legal system.

scholarly journals Should Patent Infringement Require Proof of Copying?

2016 ◽  
Author(s):  
Mark Lemley
Keyword(s):  
Patent Law ◽  
Patent System ◽  
Patent Infringement ◽  
Important Paper ◽  
Injunctive Relief ◽  
Definition Of ◽  
The Right ◽  
System Today ◽  
The Way

Patent law gives patent owners not just the right to prevent others fromcopying their ideas, but the power to control the use of their idea even bythose who independently develop a technology with no knowledge of thepatent or the patentee. In an important paper, Samson Vermont challengesthis received wisdom, arguing that independent invention should be adefense to patent infringement, just as it would be in copyright or tradesecret cases.Independent invention has much to recommend it. The most significantproblem facing the patent system today is the rise of so-called "patenttrolls" - entities who do not manufacture products or transfer technology,but wait and assert patents against successful companies who independentlydeveloped and manufactured the technology without knowledge of the patent.An independent invention defense would eliminate the troll problem in onefell swoop. Nonetheless, I have concerns. While I agree with Vermont thatwe can learn a great deal from the fact of independent invention, I am notyet persuaded that we can be sure that an independent invention defensewill have no undue effect on incentives. Complicating this difficultempirical question is the likelihood that the effects of an independentinvention defense would be different in different industries. Further, anindependent invention defense will significantly change any market forpatent rights that might exist or be developing today.In light of this, I suggest four steps we might take that take advantage ofVermont's insights without moving all the way to an independent inventionsystem. First, we should change the definition of willful infringement toexclude independent inventors. Second, we should adopt some form of a prioruser right. Third, we should give simultaneous invention greater credencein determining whether inventions are obvious. Finally, we might considerwhether the defendant independently invented as a factor in decidingwhether to grant injunctive relief and the conditions to impose on suchrelief.

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