January 19, 2016

Say These Words with Meaning: Patent Reform Now

ACSblog Symposium on Patent Law Reform, Kali Murray

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.

Second, any patent reform needs to think of the grant, issuance, and enforcement of patent as a kind of ecosystem. When we think of ecosystems, we think of complex, interconnected networks of interaction between physical organisms within a specific environment. Patent practice and regulation now take place in an environment that resembles an ecosystem; for instance, a patent in genetically modified seeds may be regulated at different points in its existence by federal regulators such as the United States Patent and Trademark Office, the United States Department of Agriculture, the Federal Trade Commission, federal and state courts, and state administrative agencies. Likewise, that same patent in genetically modified seeds may impact many different actors from large corporate actors to farmers who may seek to use the seeds, to consumers who eat food generated from the same genetically modified seeds. My co-author, Esther van Zimmeren, and I have emphasized that any patent reform needs to carefully think of the dynamic relationships between these institutions and actors. Too much patent reform does not fully account for this dynamic element in patent governance and so creates unintended harms to the overall patent system. Just because we use a complicated word to explain this interconnected means reforms based on it cannot be simple. For example, a simple fix would be to rewrite legislative text to refer the ability of multiple actors to administer the relevant patent statues.

Finally, as I have emphasized in my book, The Politics of Patent Law: Crafting the Participatory Patent Bargain, patent reform needs to take account what I call temporality― that is, an awareness of the continually contested nature of patent law. It has always interested me that during the late nineteenth century, social movements such as the Populists sought to restrain patent practices at state and federal level. An awareness of the previous experience of how social movements sought to change patent law might offer substantive guidance to patent reformers on how to achieve progressive goals and values in the doctrinal formation of patent law.

These words—“patent reform”— mean more than a contested sound bite. Patent reform means a patent system that works for the public as much as the patent owner. Patent reform means a patent system that seeks a sustainable balance between institutional actors and varied stakeholders. Patent reform means a system that recognizes that the past is always present in how new social movements can organize and seek change in the patent system. These words—“patent reform”—then provide us with a new guidance on how to change the patent system now.