Intuitive Patenting

Patentable subject matter determinations are ultimately based not on judicial doctrines, tests, statutes, or even on the economic rationales underlying the patent system; rather, the fundamental touchstone for what qualifies as patentable technology is simply intuition. Specifically, despite the Federal Circuit\u27s rejection of technological arts as a linguistically bright-line test, patentable subject matter decisions inevitably devolve into what is, at base, an intuitive sense of what constitutes technology of the type protectable under the patient system

What is Technology

Patent protection is limited to technology, but technology is so difficult to define that the Supreme Court has taken up the issue several times in the last several years. The Supreme Court\u27s recent decisions in Bilski, Prometheus, and Myriad have left patentable subject matter doctrine just as confused as ever, however. What is patentable technology? The answer turns out to have nothing to do with the various pragmatic rationales that courts commonly cite. Rather, the patent system has defined patentable technology according to much simpler criteria - artifice and action. Artifice is the quality of being created by humans, not by nature. Action is the quality of behaving or operating in some active way. Together, artifice plus action explain and, perhaps more importantly, unify the law on patentable subject matter. By focusing on artifice plus action as the primary criteria defining patentable technology, the patent system can provide clearer guidelines than it has been able to achieve thus far

Unregistered Patents

Although all should be treated equally under the law, patent law has long been known to favor some less than others. Patentable technology is highly heterogeneous, covering everything from minute improvements in electronics to pioneering new artificial organs, but patent protection itself is purely a one-size-fits-all system. Patents thus overreward some while underrewarding others. On the one hand, patents overreward low-investment, low-value inventions by granting them the same twenty-year term of protection as those that required much higher investments and yield much higher social value. The resulting glut of low-quality patents has contributed greatly to the “patent crisis” of opportunistic “patent trolls,” heightened transaction costs, and costly litigation that have ultimately stalled innovation. On the other hand, patents also underreward in two significant ways. First, patents often fail to give some high-investment, high-value inventions enough protection. Second, many inventors are shut out from patent protection altogether if they lack the resources necessary to navigate the patent system’s costly, complex, and frequently biased examination process. This latter phenomenon disproportionately affects female and minority inventors, among others, thereby creating significant distributive effects. This Article argues that both of these effects—the overprotection of low-value inventions and the underprotection of inventions by women and minorities—could be alleviated by altering one particular but seldom-appreciated aspect of the patent system’s one-size-fits-all approach: its registration-only design. Copyright and trademark law allow for both registered and unregistered rights, but the patent system grants rights only to those who register their inventions and undergo subsequent examination. If the patent system were to follow the two-tiered approach of copyright and trademark law, however, and implement a regime of automatic but very limited unregistered rights in addition to registered rights, it could help address both problems. First, providing a much lower-cost alternative for obtaining protection, such a two-tiered regime could, with varying degrees of aggressiveness, channel low-investment, low-value inventions away from the system-clogging overprotections of the full, twenty-year, broad rights currently granted to registered patents. Second, as the authors of this Article have previously argued, by providing automatic rights without having to go through the resource-intensive registration and examination process, unregistered patent protection could help women and other disadvantaged inventors gain greater access to patent protections. Maintaining a two-tiered regime of both registered and unregistered patent rights thus offers a promising way to mitigate the inefficiencies of the current system by attenuating certain aspects of the current patent crisis while promoting a more egalitarian playing field for inventors

The Myth of Generic Pharmaceutical Competition Under the Hatch-Waxman Act

Without a doubt, health care costs are on the rise, and how to reduce those costs is of great concern to many. The Hatch-Waxman Act attempts to reduce pharmaceutical costs by encouraging market entry by lower-priced generic pharmaceuticals and without a doubt has been successful in doing so over the last three decades. The question is, at what price? Although designed to balance greater generic market entry with stronger incentives for brand-name pharmaceutical innovators to continue developing new drugs, the Act appears to have fall short of making those incentives nearly strong enough and, indeed, likely weakens them. Perhaps more importantly, however, a closer look at basic beliefs animating the Hatch-Waxman Act suggests that they are simply off the mark. The Act focuses far too much on competition and on removing barriers to market entry and as a result neglects the bigger context of the pharmaceutical market. The pharmaceutical market is not a competitive market for a variety of reasons, and one may doubt whether we should want it to be one. In any event, the Hatch-Waxman Act’s simple focus on generic regulatory burdens and pharmaceutical patents does little or nothing to foster any meaningful, long-term competition and has in the meantime likely weakened the ability of brand-name pharmaceutical innovators to continue to develop new pharmaceuticals. We may therefore wish to reconsider the wisdom of maintaining the Act in its current form, if at all

Res or Rules - Patents and the (Uncertain) Rules of the Game

The Article proceeds as follows. Part I reviews the basics of patent claiming, the traditional view of claims as real property deeds, and why uncertainty as to the boundaries of those deeds is considered undesirable. Part II critiques the analogy between real property deeds and patent claims, highlighting in particular the requisite novelty and conceptual nature of the patent res, the differences between the purposes of the patent system and real property regimes, and the effect of these different purposes on the expected predictability of patent boundaries. Part III then changes the analogy from patent claims as property deeds to patent claims as rules of governance, noting the advantages and limitations of this analogy. The Article concludes with a discussion of patent claims not just as rules of governance but also as blends of rules and standards in their need to anticipate often unpredictable circumstances

Transnational Intellectual Property Law: Cases and Materials from the United States, Europe, Japan, and China, Second Edition

Transnational Intellectual Property Law provides students comparative knowledge of intellectual property for today’s world. The book provides students a strong understanding of intellectual property law in four important global stakeholders and regions: United States, European Union, Japan and China. Transcending national borders, the students will learn the similarities and differences in these four regions through reading and analyzing valuable primary sources of judicial opinions from the courts. The materials allow the students to identify how culture and traditions influence judges in crafting their opinions, in both common law and civil law countries.The book is organized in six units. Each unit begins with a concise summary of a doctrinal area of intellectual property law in each of the four regions, United States, European Union, Japan and China. Judicial opinions from a particular region follow the doctrinal summaries within each unit.https://digitalcommons.law.uw.edu/faculty-books/1062/thumbnail.jp