Among the joys of being a professor, as distinguished from practicing law, are the leisure and incentive to think and write about the big picture. Another joy is being able to say what you really think. We professors don't have to focus on attracting clients or maintaining an impression of studied understatement and moderation for judges and juries.
In this talk, I'm going to exercise both of these prerogatives. I've been thinking about the big picture in patents for over a quarter century, and I'm more worried than I've ever been.
Let me begin by making my usual (and truthful) disclaimer. I'm not one of those academics who delights in being a gadfly and finding cause for alarm in every new law and every twist and turn of legal history. I'm the author of three treatises--on intellectual property generally, licensing, and cyberlaw. I've spent much of the last thirteen years of my life writing and revising them. Like treatises generally, each largely describes and explains our current intellectual property system, and each finds much to like in what both recent and earlier history have wrought. More fundamentally, I strongly subscribe to the view that the robust intellectual property system of Anglo-American society is in part responsible for our society's extraordinary economic success over the last four centuries.
But the warning signs of excess are everywhere. One need look no farther than the Federal Trade Commission's White Paper that is the subject of today's discussion. Think about it. Congress has clipped the FTC's policy wings so often that it's a wonder the agency can fly at all. Moreover, for the first time in decades, the executive and legislative branches of our government are controlled by Republicans, who have not generally been zealous advocates for aggressive antitrust enforcement and “pruning” the IP laws. Yet even in this very conservative political environment, the FTC--a much-chastened agency--has proposed ten recommendations (fourteen, if you count the subheads) for reining in the patent system. If that isn't a clear sign that something desperately needs attention, I don't know what is.
Therefore I'm going to take the premise of my talk--that something is wrong-- for granted. In the short time that I have, I'd like to explore three further questions. First, what is wrong? Second, how can we fix it? And third, how important is it that we do so?
Akron Law Review
Jay Dratler, Alice in Wonderland Meets the U.S. Patent System, 38 Akron Law Review 299 (2005).