Jay Dratler Jr.


The attached article outlines in some detail why I think it matters in two particular fields—software and business methods—in which the PTO has issued, and the Federal Circuit has upheld, what I think are too many patents on non-inventions. The following remarks take a broader and longer-range view of patents generally.

The first reason why having a properly balanced patent system matters relates to the historical period in which we find ourselves. The world is now in the process of transferring the self-evident benefits of robust innovation, free markets, and free trade from Anglo-American and other advanced societies to the rest of the planet. This transfer, often pejoratively termed “globalization” by “multinational corporations,” involves far more than mere globalized marketing of American products and far more than just the largest industrial combines. It is an extremely complex, far-reaching process. In the long run, it is likely not only to improve the standard of living in, but also to democratize, much of the planet. When the history of this period has been written, this transition may be as important as—or even more important than—the Industrial Revolution. Innovation and the patent laws that encourage it are, of course, a vital part of this process.
The second reason why patents and laws governing innovation are so important is seldom stated but perhaps most fundamental. The patent system and those laws affect a value we Americans perhaps hold most dear: liberty. Liberty is not only a matter of human rights or freedom from tyranny. There is such a thing as economic liberty. Indeed, as raw tyranny of the type exemplified by Saddam Hussein recedes from the world stage, economic liberty no doubt will become more and more important.