Intellectual Property

Maturing Patent Theory from Industrial Policy to Intellectual Property

We have always known that technological progress is important and this country has always aimed to promote it. A large part of that responsibility has fallen on the shoulders of the patent system. Embarrassingly, despite over two hundred years of experience, we still do not actually know if the patent system helps or hinders technological progress. This Essay argues that the problem is not the patent system but rather patent theory. Patent theory suffers from three linked problems: exceptionalness, indeterminacy, and animosity. First, patent law is seen as a necessarily unique exception to the overall market economy. By artificially making patenting a profitable activity, the patent system is a form of industrial policy that aims to encourage people to enter the risky business of inventing. Second, we have never confidently been able to conclude that the benefits of this industrial policy outweigh its costs. Third, and perhaps just as important, that story inherently creates animosity among important interest groups. The resulting ongoing indeterminacy and animosity have prevented the patent system from maturing into an accepted, stable legal institution. We can and must do better. We need an institution that is stable, reliable, and accepted. This Essay argues that we should reject the long-standing “legal incentive” narrative and begin looking for a better alternative. This Essay points toward an accepted, stable model sitting in plain sight: traditional property. We have (incorrectly) thought that traditional property and its economic system for exchange cannot provide guidance for the exotic nonrival world of the patent system. This Essay aims to show that those assumptions are wrong, and it begins outlining a patent narrative where patents are seen as an important and natural extension of traditional property and indeed the overall economy of tangible goods. There are good reasons to think that such a system might provide what current patent theory cannot: the basis for a determinate and accepted patent system.

From Dallas Cap to American Needle and Beyond: Antitrust Law's Limited Capacity to Stitch Consumer Harm from Professional Sports Club Trademark Monopolies

A nearly fifty-year contemporaneous trend of increasing legal protection for sports team trademarks, collective exclusive licensing of professional sports team trademarks, and antitrust litigation regarding its validity culminated in the United States Supreme Court's 2010 decision American Needle, Inc. v. NFL, which rejected the NFL's single-entity defense. Collective exclusive trademark licensing by professional sports leagues generally does not have significant incremental anticompetitive effects beyond the consumer harm already caused by each individual club's lawful trademark monopoly, which likely are outweighed by procompetitive benefits in many instances. However, in order for antitrust law to minimize the consumer harm caused by the extension of trademark law protection beyond its traditional boundaries to create professional sports club trademark monopolies, the collective granting of exclusive product category licenses should be invalidated under the quick-look rule of reason because this restraint has clear anticompetitive effects that are not necessary to achieve legitimate procompetitive justifications and/or which may be achieved by a substantially less restrictive alternative.

A Uniform Framework for Patent Eligibility

There is a need to clarify patent law so as to advance resolution of its most fundamental question--delineating the categories of subject matter that are eligible for patent protection. Coupled with the active role the Supreme Court has taken in examining this precise issue, individuals and nonprofit organizations have galvanized a public discourse through constitutional challenges to the issuance of various biotechnology patents. Despite a statutory framework that has remained constant since 1793, courts have been unable to create a comprehensive test for determining patent-eligible subject matter that accurately embodies the foundational principles that underlie the federal grant of patents. I argue that the proximate cause of the lack of an appropriate framework is the failure of courts to clearly define the statutory categories and the absence of a technology-agnostic method of analyzing whether an invention claims ownership over a “product of nature.” This Article sets forth a uniform framework that addresses patent-eligible subject matter through the creation of a practical methodology that focuses on these two principles. The advantages of the proposed framework are highlighted through the application of the framework to traditional inventions and emerging biotechnologies.

Law and Longitude

The story of the eighteenth-century quest to “find the longitude” is an epic tale that blends science with law. The problem of determining longitude while at sea was so important that the British Parliament offered a large cash prize for a solution and created an administrative agency, the Board of Longitude, to determine the winner. The generally popular view is that the Board of Longitude cheated John Harrison, an inventor, out of the great longitude prize. This Article examines the longitude story from a legal perspective. The Article considers how a court might rule on the dispute between Harrison and the Board of Longitude. The Article suggests that the popular account of the dispute is unfair to the Board. The Board gave a reasonable interpretation to the statute creating the longitude prize and was not improperly biased against Harrison's method of solving the longitude problem. The Article concludes with some lessons the longitude story offers for modern intellectual property and administrative law.