Patent Law, Copyright Law, and the Girl Germs Effect

[Excerpt] Inventors pursue patents and authors receive copyrights. No special education is required for either endeavor, and nothing precludes a person from being both an author and an inventor. Inventors working on patentable industrial projects geared toward commercial exploitation tend to be scientists or engineers. Authors, with the exception of those writing computer code, tend to be educated or trained in the creative arts, such as visual art, performance art, music, dance, acting, creative writing, film making, and architectural drawing. There is a well-warranted societal supposition that most of the inventors of patentable inventions are male. Assumptions about the genders of the authors of remunerative commercially exploited copyrights may be less rigid. Women authors are more broadly visible than women inventors across most of the typical categories of copyrightable works. Yet, whether one considers patentable inventions or copyrightable works, the vast majority of the very profitable ones are both originated and controlled by men. This causes a host of negative consequences for women. They start and run businesses at much lower rates than men and rarely reach elite leadership levels in the corporate world or within high-profile artistic or cultural communities. They are perceived as less competent, less dedicated, and less hard working, and suffer from a lack of female mentors and female colleagues. Women are lied to during financial negotiations more than men and earn less than men in equivalent positions. Women control only a tiny portion of the world’s wealth. Though female students outperform male students in almost every context and at almost every level of education, and even seek postdegree job-related training in greater numbers than men, this has not helped women to produce and control patentable inventions or to author and own valuable copyrighted works in numbers comparable to men

The Uneasy Case for Patent Federalism

Nationwide uniformity is often considered an essential feature of the patent system, necessary to fulfill that system’s disclosure and incentive purposes. In the last few years, however, more than half the states have enacted laws that seek to disrupt this uniformity by making it harder for patent holders to enforce their patents. There is an easy case to be made against giving states greater authority over the patent system: doing so would threaten to disrupt the system’s balance between innovation incentives and a robust public domain and would permit rent seeking by states that disproportionately produce or consume innovation. There is, nevertheless, an uneasy case that this particular form of patent federalism may be a good thing. The federal patent system has systemic flaws that lead to low-quality patents, nuisance patent litigation, and patent trolls exploiting asymmetric bargaining power. And efforts to address these flaws have faltered, or have had limited effects, due to public-choice dynamics in the patent system, so the scope of patent protections has expanded over time without regard to the system’s purpose of encouraging innovation. States may help address some of these problems not in spite of, but because of, their own flaws. States have their own public-choice dynamics that happen to offset some of the flaws of the federal system. State anti-patent laws have been driven largely by small businesses and local small-business groups, which, unlike most patent holders, have preexisting influence in state government. And the laws they have crafted using this influence are well-targeted to affect only the most troublesome patent cases: nuisance cases, cases asserting low-quality patents, and cases targeting end users. States pushing back with anti-patent laws, then, may represent an effective second-best solution to the problem of harmful patent assertions. Moreover, recognizing the dynamics that led to these laws may provide helpful insights in designing federal patent reforms

The Uneasy Case for Patent Federalism

Nationwide uniformity is often considered an essential feature of the patent system, necessary to fulfill that system’s disclosure and incentive purposes. In the last few years, however, more than half the states have enacted laws that seek to disrupt this uniformity by making it harder for patent holders to enforce their patents. There is an easy case to be made against giving states greater authority over the patent system: doing so would threaten to disrupt the system’s balance between innovation incentives and a robust public domain and would permit rent seeking by states that disproportionately produce or consume innovation. There is, nevertheless, an uneasy case that this particular form of patent federalism may be a good thing. The federal patent system has systemic flaws that lead to low-quality patents, nuisance patent litigation, and patent trolls exploiting asymmetric bargaining power. And efforts to address these flaws have faltered, or have had limited effects, due to public-choice dynamics in the patent system, so the scope of patent protections has expanded over time without regard to the system’s purpose of encouraging innovation. States may help address some of these problems not in spite of, but because of, their own flaws. States have their own public-choice dynamics that happen to offset some of the flaws of the federal system. State anti-patent laws have been driven largely by small businesses and local small-business groups, which, unlike most patent holders, have preexisting influence in state government. And the laws they have crafted using this influence are well-targeted to affect only the most troublesome patent cases: nuisance cases, cases asserting low-quality patents, and cases targeting end users. States pushing back with anti-patent laws, then, may represent an effective second-best solution to the problem of harmful patent assertions. Moreover, recognizing the dynamics that led to these laws may provide helpful insights in designing federal patent reforms

Software Patents--Just Make a Good Thing Better

Some have stated that software is somehow different from other technologies and must be treated differently. Others have gone so far as to advocate the abolition of patents for software-related technologies. I disagree with both propositions. I believe a heavy burden rests on those who advocate that a particular field of technology should be exempted from the patent system absent a statutory prohibition. Software-related technology should be treated under the U.S. patent laws as any other technology would be treated. Otherwise, investment in the software industry will be negatively impacted. The current patent system is vital to the protection of software-related technology and, consequently, to United States industrial competitiveness. Criticism of software-related patents is being addressed by those seeking to improve the patenting process and, over time, will be moot

Amicus Brief of Thomas G. Field, Jr., Pro Se Supporting in Principle, on rehearing the Commissioner of Patents and Trademarks

To those unfamiliar with the long, often bitter, struggle over equally compelling needs to provide, on the one hand, innovators with an adequate opportunity to recoup risk capital and to avoid, on the other, erecting unwarranted barriers to competition, a dispute over the proper scope of review for Patent and Trademark Office (PTO) patent appeals will seem both trivial and arcane. This case involves more than semantics -- its resolution turns on the allocation of power among three, and arguably four, branches of government. This Court, itself, has a stake