How Malleability Matters

In The Malleability of Patent Rights1, I developed the concept that patent rights are malleable rather than static and fixed, distinguishing malleability from the idea that patent rights are merely uncertain. Malleability refers to the idea that the strength and scope of patent rights can be altered by the actors who interact with a patent well after it has issued. Patent law is full of mechanisms that allow for these post-issuance changes, yet there seems to be no good theoretical argument that supports malleability. At best, I concluded, the costs of malleability must be weighed against the doctrinal cures, and perhaps those cures themselves would come with greater costs of their own. This Essay builds upon The Malleability of Patent Rights to explain how viewing patent rights as malleable can dramatically alter conventional narratives of the patent system—both narratives told by supporters of strong patent rights and narratives told by those who argue that the patent system must be changed to favor competitors. In doing so, this Essay provides examples of how the malleable nature of patent rights can present real problems for the patent system. 1. Jason Rantanen, The Malleability of Patent Rights 2015 MICH. ST. L. REV. 895 (2015)

The Malleability of Patent Rights

Article published in the Michigan State Law Review

The Doctrinal Structure of Patent Law\u27s Enablement Requirement

This Article examines the formal law of enablement, focusing on a perceived split in the enablement doctrine: whether disclosure of a single mode of an invention is necessarily sufficient to satisfy the requirement of enablement or whether the full scope of the claim must be enabled. In examining this split, this Article articulates the enablement inquiry in conceptual terms, identifying two elements of the courts\u27 analyses that are implicit in every enablement determination: the nature of enablement disputes, as challenges and the articulation of a target or targets that must be enabled. , With this understanding in mind, the full scope and any mode language are easily reconciled: For any given target, one mode suffices. But each and every target must be enabled

How Malleability Matters

In The Malleability of Patent Rights1, I developed the concept that patent rights are malleable rather than static and fixed, distinguishing malleability from the idea that patent rights are merely uncertain. Malleability refers to the idea that the strength and scope of patent rights can be altered by the actors who interact with a patent well after it has issued. Patent law is full of mechanisms that allow for these post-issuance changes, yet there seems to be no good theoretical argument that supports malleability. At best, I concluded, the costs of malleability must be weighed against the doctrinal cures, and perhaps those cures themselves would come with greater costs of their own. This Essay builds upon The Malleability of Patent Rights to explain how viewing patent rights as malleable can dramatically alter conventional narratives of the patent system—both narratives told by supporters of strong patent rights and narratives told by those who argue that the patent system must be changed to favor competitors. In doing so, this Essay provides examples of how the malleable nature of patent rights can present real problems for the patent system. 1. Jason Rantanen, The Malleability of Patent Rights 2015 MICH. ST. L. REV. 895 (2015)

Toward a System of Invention Registration: The Leahy-Smith America Invents Act

The recently enacted Leahy-Smith America Invents Act (“AIA”) represents the most significant legislative event affecting patent law and practice in more than half a century. In addressing the AIA, scholars and policymakers have focused with an almost laser-like exclusivity on the AIA’s imposition of a first-to-file-or-first-to-publicly-disclose system, which replaces an over 200-year-old first-to-invent tradition. This myopia, we suggest, overlooks a part of the AIA that could hold a substantially greater potential to jeopardize American innovation, job creation, and economic competitiveness: the imposition of a mechanism for supplemental examination

Toward a System of Invention Registration: The Leahy-Smith America Invents Act

The recently enacted Leahy-Smith America Invents Act (“AIA”) represents the most significant legislative event affecting patent law and practice in more than half a century. In addressing the AIA, scholars and policymakers have focused with an almost laser-like exclusivity on the AIA’s imposition of a first-to-file-or-first-to-publicly-disclose system, which replaces an over 200-year-old first-to-invent tradition. This myopia, we suggest, overlooks a part of the AIA that could hold a substantially greater potential to jeopardize American innovation, job creation, and economic competitiveness: the imposition of a mechanism for supplemental examination

Disuniformity

The United States Court of Appeals for the Federal Circuit is a response to a failure in judicial administration that produced a fractured, unworkable patent law—one that Congress concluded ill-served entrepreneurship and innovation. The purpose of the response—vesting exclusive jurisdiction for patent appeals in the Federal Circuit—was to permit that court to develop patent law in the direction of greater clarity and uniformity. Both at the time of the Federal Circuit\u27s creation and again more recently scholars, judges, and practitioners have waged great debates over whether patent law uniformity furthers the ultimate goals of entrepreneurship and innovation. These debates have rested on a largely untested empirical proposition: That doctrinal uniformity. This Article reports an empirical study that examines patent law uniformity through the measure of open decisional disagreement between Federal Circuit judges. Its central empirical observation is a remarkable increase in decisional disagreement—indicative of a decline in doctrinal uniformity—among Federal Circuit judges over the past several years. This Article raises and discusses several possible explanations for its surprising observations, including, inter alia, the Supreme Court\u27s influence and personnel changes at the Federal Circuit. It also considers what the observations and explanations might contribute to a current debate over the merits of Congress\u27s decision to unify patent jurisdiction in the Federal Circuit

Patents as Credentials

The conventional explanation for why people seek patents draws on a simple economic rationale. Patents, the usual story goes, provide a financial reward: the ability to engage in supracompetitive pricing by excluding others from practicing the claimed technology. People are drawn to file for patents because that is how these economic rewards are secured. While scholars have proposed variations on the basic exclusionary mechanism, and there is a general acknowledgement that patents can affect a firm’s reputation, the actual mechanisms of patents’ effect on individuals — human beings — remains relatively uncharted. In this Article we offer a concrete theory and framework for understanding the relationship between patents and individuals in terms other than the lure of supracompetitive pricing. Our framework focuses on the idea of patents as credentials: formal abstractions of a person’s inventive nature. By acting as boundaries and identifiable indicators, patents serve purposes beyond the strictly exclusionary. One purpose is to satisfy social or self-worth needs. The formalization of invention through a patent allows those human beings who want to be recognized by society as inventors to be so recognized, thus fulfilling an innate human desire. A second purpose is economic—but not because of the power to exclude. Instead, as the literature has recognized on the firm level, viewing patents as credentials acknowledges their role as economic signals, indicating particular characteristics possessed by the recipient. Considered in these terms, patents serving as credentials are all around us, from resumes and curriculum vitae to framed patents in offices. But these examples only scratch the surface of the role of patents as credentials in our society. By using the formal lens of patents as credentials, we demonstrate that there are reasons why individuals seek patents beyond the lure of supracompetitive pricing