by Kali Murray, Associate Professor of Law, Marquette University Law School
*This post is part of the ACSblog Symposium on Patent Law Reform.
Recently, I was informed that I needed to stop using the words “patent reform” in my work. Such words, it was explained to me, had become too contested. The words “patent reform” had become a political tool used by one side or the other in the fierce debate over how to effectively police the specter of patent trolls, whether through congressional reform or state and federal administrative efforts. It seems to me, though, that these words—“patent reform”—are too important to give up to one side or another, and so, this is an attempt to give new meaning to these words going forward.
What then are the steps that must be taken if we are to give meaning to the words “patent reform?” First, any patent reform needs to take into account what I and my co-author Erica George have referred to as the dual objectives of the patent system. Our constitutional patent regime seeks not only to incentivize the economic activity of a patent claimant but also to protect the preconditions for creative activity that serve as the basic building blocks of scientific inquiry and information exchange. We call this the patent bargain: The patent owner gains a property right in the information in exchange for disclosure of the patent to the public. Too often though, when we speak about patent law, we value the rights of the patent claimant over the right of the public to have access and use to the information contained within the patent.
Recognizing these dual objectives would center patent reform in two ways. Initially, if we see that patent reform serves democratic values other than the economic goals of innovation, it may limit the ongoing deterioration of our current debate into a contest between different interest groups. As we have seen within the context of copyright law, this can lead to significant industry capture that can harm coherence and continuity of the current law. Additionally, honoring the dual objectives of the patent system may also help to center the debate in progressive values of transparency, access, and equity. I object, for instance, to the current legislation before Congress that imposes significant attorney fees in patent litigation because it may dissuade nonprofits and public interest groups from engaging in litigation to challenge undesirable patents. Such choices would significantly undermine access to different avenues of patent litigation, thus undermining the dual objectives embodied in our patent bargain.