Rethinking patent law
We (Bessen and Meurer) received a nice note from Judge Plager letting us know that he cited our book, Patent Failure, in his recent speech where he called for rethinking patent law by returning to its origins in property law.
Judge Plager writes that as a former law professor who taught property law for twenty-five years, he found our general thesis about analyzing patent law from a property law perspective “quite comfortable.” The book argues that many of the key institutional features and much of the economic performance (and many of the problems) of the patent system can be analyzed by treating patents as a property system. In his speech, Judge Plager suggested that this approach might require rethinking the patentability of software and business methods, doctrines of claim construction, patent scope and the doctrine of equivalents.
Judge Plager also pointed out a disagreement he has with us. In the book, we support the view of John Duffy and Craig Nard, who call for multiple appellate courts for patents (see Tim Lee’s recent summary). In a paper with Lynne Pettigrew, Judge Plager argues against this view.
Often, rethinking something is a lot harder than thinking it out in the first place. This is particularly true for judges, whose decisions are published and used as precedent. Indeed, this “path dependence” of the court is one of the concerns that Duffy and Nard raise.
In this light, Judge Plager’s call to rethink patent law is more than a little courageous. And I suspect that the willingness of Judge Plager’s colleagues on the CAFC to join in the project he proposes will shed light on the correctness of Duffy and Nard’s proposal.
