Further Reflections on Extinguishing the Fountainhead of Knowledge: A Call to Transition to the 'Innovation Policy' Narrative in Patent Law

Abstract

Economists are unable to provide a clear answer as to the effectiveness of the patent system in encouraging innovation. At best, they point to certain sectors, such as pharmaceutical and biotechnology, which benefit from a robust patent scheme. Conversely, sectors such as software and ironically at the same time, biotechnology, may be harmed by an overly broad patent scheme. The question that emerges is: why do the various stakeholder in all industrial sectors, Congress, the Patent and Trademark Office (“PTO”) and the courts (in particular, the Federal Circuit), continue to center the development of patent law around the “innovation presumption” despite the lack of theoretical and empirical evidence to answer the fundamental question: Do patents actually create more incentive to innovate, more actual innovation and hence more economic growth? Preparing for this Symposium on the Federal Circuit, innovation and disruptive technologies has allowed me to further reflect on why it is necessary to challenge the innovation presumption and explore alternative paradigms, such as the use of innovation “policy levers” for this problematic narrative.