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Rethinking Patent Law

Rethinking Patent Law

Robin Feldman
Copyright Date: 2012
Published by: Harvard University Press
Pages: 288
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  • Book Info
    Rethinking Patent Law
    Book Description:

    Scientific and technological innovations are forcing the inadequacies of patent law into the spotlight. Robin Feldman explains why patents are causing so much trouble. She urges lawmakers to focus on crafting rules that anticipate future bargaining, not on the impossible task of assigning precise boundaries to rights when an invention is new.

    eISBN: 978-0-674-06496-6
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. [i]-[vi])
  2. Table of Contents
    (pp. [vii]-[viii])
  3. Introduction
    (pp. 1-8)

    Patent law has all too often languished in the back rooms of academia. Viewed as unimportant by some and impenetrable by others, patent law rarely receives the type of attention lavished on perennial favorites such as constitutional law, international human rights law, or even, in the modern world of music downloading and Internet videos, copyright law. A confluence of recent events, however, is bringing patent law into the limelight, highlighting contradictions that have remained hidden for some time in the obscurity of patent law’s arcane code and its isolated brethren. Gone are the days when the Supreme Court took few,...

  4. 1 The Bargain Aspect of Patents
    (pp. 9-39)

    These words, uttered en banc by the Federal Circuit in 2005, would not seem the least bit surprising to anyone versed in patent law and commentary. It is almost a throwaway line, a way of starting at basic principles with which we can all agree. The implication is not just that the words of the patent provide some form of limitation in a boundless universe of possibilities but rather that the patent is definitive and that the boundaries are specific and definite. The court’s job when confronted with a patent is to figure out precisely what was granted.

    Patent commentary...

  5. 2 How Modern Patents Operate
    (pp. 40-74)

    Chapter 1 explains that, from a theoretical perspective, the traditional conceptualization of patents as defining the boundaries of rights granted is insufficient. Given the problems associated with the newness of an invention, one cannot possibly delineate the contours of the rights at the moment the grant is conferred.

    This chapter presents a descriptive analysis of modern patents. It demonstrates that the patent system operates as a complex set of bargaining interactions in which the rights associated with any individual patent are developed. Within this system, the moment of the patent grant is not a definitive grant of rights; it is...

  6. 3 Implications of the Bargain Aspect for Current Debates
    (pp. 75-90)

    With the bargain aspect in mind, one would have a radically different image of patents from what is reflected in the common academic wisdom. Common wisdom suggests that patents delineate the rights granted and that the courts interpret those rights. In the conventional view of patent law, the critical moment is the grant of the patent. After that, we are left with the postgame show to rehash and interpret the events of the day. In contrast, the bargain aspect suggests that the game is only beginning. The patent grant is a single moment in a complex process during which the...

  7. 4 Where Do Processes of Nature End and Processes of Human Inventions Begin?
    (pp. 91-135)

    This chapter looks at the tremendously challenging question of what types of inventions should fall within patentable subject matter in the case of process patents. The question brings together issues related to the patenting of software, business methods, and biotechnology inventions. The area is so challenging and controversial that the Supreme Court, which took almost ten months in 2010 and 2011 to write the Bilski opinion in this arena, was unable to agree on much at all. The Court’s opinion was able to draw five votes only as to certain portions, and the opinion pointedly noted that the Court disagreed...

  8. 5 The Interaction of Patents with Contracts and Antitrust
    (pp. 136-178)

    In any attempt to manage the dynamics of the patent system, one must be mindful of efforts to navigate around that system. In particular, parties may be able to use systems outside of patent law to avoid bargaining limitations built into the patent system or to evade the patent system altogether. If left unchecked, such strategies could undermine whatever policies and priorities have been established in the creation of the patent system.

    This is not just a matter of using inappropriate sources of power to browbeat one’s negotiating opponent, although that in itself can be problematic. One must also be...

  9. 6 Beyond the State of the Art
    (pp. 179-210)

    From the perspective of the bargain aspect of patents, not all inventions are created equal.¹ An improvement on a simple mechanical device may have a narrow range of uncertainty. In contrast, an organic substance created by genetic engineering may have a far broader range of potential definition. The difference flows from the newness of the field of genetics and from the vast range of things we do not know about the workings of biology. The breadth of our ignorance, however, is not unique to the field of genetics but pertains to many fields, ranging from nanotechnology to inventions that utilize...

  10. Conclusion
    (pp. 211-212)

    As judges, academics, and commentators increasingly focus on the role that patents play in our modern society, we have an opportunity to look more deeply at the nature of these strange patent beasts. The conventional wisdom in patent law conceptualizes patents by analogy to land, with the claims forming the metes and bounds of the property lines. This conceptualization, however, misses an important aspect of patents, as well as a critical distinction between rights in relation to land and rights in relation to inventions. With real property, we have at least some shared concept of the core of a piece...

  11. Notes
    (pp. 215-268)
  12. Acknowledgments
    (pp. 269-270)
  13. Index
    (pp. 271-279)