One’s view of the patent system depends on what perspective is taken. A narrow focus on the operational level of doctrinal implementation of patent law reveals significant instability and fluctuation in the patent system. A broader focus on the foundational and systemic characteristics of the patent system reveals such substantial stability for so long that the American patent system reasonably can be described as a 19th century patent system. And an even broader focus on the entire history of the American patent system reveals that this stability was only achieved after a period of significant change, diversity, and experimentation in the first few decades of the patent system. The result is a patent system disconnected in significant ways from the modern legal system but one that could be justified on the basis of stability, resilience, and the assumed wisdom of long-standing practice. At the same time, however, mistaking this long-standing practice and potential policy desirability for necessary, inherent, or mandatory features overlooks the instability, change, and diversity in the early decades of the American patent system.
Monday, July 16, 2018
Reilly on Our 19th-Century Patent System
Greg Reilly, IIT Chicago-Kent College of Law, has posted Our 19th Century Patent System, from IP Theory 7:2( 2018):