Radical patent law reform in a common law enabling system: a metahistory

Abstract

This chapter tells the story of how intellectual property lore becomes law. In the United States radical patent law reform has time and again occurred through the Supreme Court selectively reviving and reconstructing its precedent to correct abuses of the patent system. The forgotten opinions the Court draws from are themselves historical constructs from prior periods of patent thickets and corrective judicial reform; just as all common law judicial opinions are rhetorical constructs that purport to objectively present facts that can only be selectively reconstructed and draw conclusions of law that are necessarily subjective and policy driven. Part 1 explains that although the United States has always had patent laws passed by Congress, they have been common law enabling statutes that codified existing judge-made law in broad strokes, leaving it to the courts to create the detailed rules going forward through judicial opinions. Part 2 describes an historical pattern of abusive patent thickets growing in the U.S. to impede true innovation, the failure of Congress to act effectively to address the problem, and the Supreme Court enacting radical and effective patent litigation reform through case law. Part 3 begins by telling the story of how an intermediate appellate patent specialist court, the U.S. Court of Appeals for the Federal Circuit, was created in the early 1980s to unify patent common law and to strengthen patent rights in the face of a judiciary that was perceived as hostile to patents. Part 3 continues by describing how the Federal Circuit’s rulings contributed to the creation of a new patent thicket whereby non-practicing entities and other patent holders asserted low-quality patents to force settlements out of innovators, thereby imposing a private tax on innovation. Part 3 concludes by describing how the Supreme Court addressed these abuses of the patent system through common law reform grounded in the unearthing of forgotten judicial precedent from prior periods of common law reform in the late 1800s and early twentieth century. Part 4 probes the question of what motivates judges to enact common law reforms in different policy directions and explores whether such a system is less democratic than a highly codified civil law system or congressional legislative reform. The conclusion concedes that the history presented in this chapter is necessarily a constructed metahistory based on literary storytelling, as are all historical narratives; and as are all common law judicial opinions because they construct deceptively objective arguments through the interpretation of past judicial opinions, which are themselves mere constructs. Once having accepted this postmodern insight, the metamodern attitude is to seek out how to use such human constructs to promote social good, rather than harm.