The Individual Inventor Motif in the Age of the Patent Troll†

Abstract

ABSTRACT The inventor motif has been part of American patent law since its inception. The question is whether the recent patent troll hunt has damaged the inventor's image and, in turn, caused Congress, the United States Patent and Trademark Office (USPTO), and the courts to become less concerned with patent law's impact on the small inventor. This Article explores whether there has been a change in attitude by looking at various sources from legislative, administrative, and judicial actors in the patent system, such as congressional statements and testimony in discussions of the recent proposed patent reform legislation, the USPTO's two recently proposed sets of patent rules and responses to comments on those rules, and recent Supreme Court patent decisions. These sources indicate that the rhetoric of the motif has remained unchanged, but its substantive impact is essentially nil. The motif has done little to stave off the increasingly anti-individual-inventor changes in substantive patent law. This investigation also provides a broader insight into the various governmental institutions' roles in patent law by illustrating how different institutions have responded--or not responded--to the use of the inventor motif in legal and policy arguments. TABLE OF CONTENTS INTRODUCTION I. THE INDIVIDUAL INVENTOR AND THE UNITED STATES SYSTEM A. The Individual Inventor Motif Defined B. Historic Usage of the Motif 1. Legislative 2. Administrative 3. Judicial II. PATENT TROLLS AND THE INDIVIDUAL INVENTOR MOTIF A. Patent Trolls and the Current Patent Reform Movement 1. The Patent Troll 2. Definitional Problems B. The Patent Troll's Impact on the Individual Inventor Motif 1. Legislative View 2. Administrative View 3. Judicial View III. IMPLICATIONS A. Resilience of the Motif's Rhetoric B. Lack of Substance Behind the Motif C. Roles of the Different Institutions in Patent Law CONCLUSION INTRODUCTION The garage inventor is as American as apple pie. (1) We enjoy stories of independent inventors, working against all odds to provide society with amazing technological breakthroughs. The stories are so entertaining that popular movies are made about such individuals--such as Flash of Genius, telling the story of Robert Kerns, the inventor of the intermittent windshield wiper system. (2) Intel has even launched an ad campaign championing the inventor, portraying individuals such as Alay Bhatt, the inventor of the Universal Serial Bus (USB), as modern-day rock stars. (3) The inventor story generally goes as follows: A lone toils in her limited free time--evenings after work and perhaps the weekend--to come up with an amazing breakthrough that turns out to be incredibly beneficial to society. (4) This entrepreneur is unconstrained by both the bureaucracy of a large corporate structure and the traditional thinking in a given technological field. The drive and ingenuity of these small inventors is the life-blood of American innovation. It's hardworking, creative individuals like Thomas Edison, Steve Jobs, and Bill Gates that bring about true innovations. This individual inventor motif--that small inventors play a crucial role in creating revolutionary inventions and, in turn, spurring the American economy--is, for the most part, widely accepted. (5) The inventor motif is perhaps strongest in those technologies where independent invention is most likely--such as the information technologies and business methods. These are technological areas where resources do not act as a high barrier to invention, and thus small inventors can easily participate. (6) The patent system has traditionally taken the inventor motif to heart and seen patents as a vehicle to both fuel inventors and protect them from large corporations. …