Pathological Patenting: The PTO as Cause or Cure

The Patent Act was last revised in 1952. The hydrogen bomb was exploded that year, vividly demonstrating the power of the nucleus; in the ensuing postwar period, the Next Big Thing was clearly the molecule. Novel compounds were synthesized in the hopes of finding new medicines; solid-state devices exploited the special characteristics of germanium and other semiconductors; as investments in polymer chemistry soared, advice to the college graduate soon boiled down to “one word … just one word[:] … Plastics.” Over the next half-century, things changed dramatically. “Better living through chemistry” has begun to sound dated (if not sinister). Genomics and computer science have come into their own. The molecule is still valued, but not so much for its reactivity as for its informational content. Even the business of knowledge production has evolved. Once the border between science and technology was clear; now it is a blur. There are scholars who patent fundamental research, and commercial firms that are run like academic departments. And while knowledge has always grown cumulatively, the relationship among inventions has become more complex as products have become interoperable, functionality has converged, and markets have globalized. With the character of inventiveness changing so drastically, the need to reexamine the patent system has become evident. In the last three years, the Federal Trade Commission, the National Academy of Sciences, and even the Patent and Trademark Office (“PTO”) have suggested that it is time for reform. As I write, Congress is contemplating significant revision of the system. Given this context, Adam Jaffe and Josh Lerner have given us a wonderfully timely book-and also one that is beautifully executed. If Congress is to reform the system, the public ought to understand its current failings. Interest group politics have played an especially corrosive role in this field because the law is complex and creates substantial economic benefits on behalf of particularly well-organized parties. Further, as the authors note, the “second class status” of patent law within the academy has meant that the perspective usually provided by legal scholars has largely been absent here (p. 161). Their book is a splendid antidote. It lays out the basic structure of patent law in a manner that is sure to educate and intrigue both readers unfamiliar with law and lawyers unfamiliar with the patent system. It uses as examples patents on inventions that are accessible to even the congenitally innumerate: the ubiquitous peanut butter and jelly sandwich, the oxymoronic comfortable high-heel shoe, and (of course) the proverbial better way to “catch[] … mammalian pests not exceeding 100 grams” (pp. 32, 52, 28). There is also a nice historical section demonstrating that there are no easy answers and that the debates over the patent system are enduring and cyclical (pp. 78-95).