This paper challenges the traditional “modernist” view that incentive-centered patent protection is essential to meet the constitutional mandate of providing exclusive rights for limited times to inventors in order to “promote progress of the useful Arts.” For a modernist society, industrial/economic growth is one of the key dimensions for measuring forward-moving progress. As modernists, we advocate that a robust exclusive rights scheme for inventors is necessary to incentivize research anddevelopment, which in turn stimulates economic growth and promotes progress. This is currently the “grand narrative” of patent law. Applying this narrative, Congress, the Patent and Trademark Office (PTO), and the courts have elevated the goal of incentivizing research as synonymous with promoting progress. As a result, what constitutes Section 101 patent-eligible subject matter has expanded over time to include “anything under the sun made by man.” The novelty, non-obvious andenablement/written description requirements are deemed adequate proxies for determining what is patentable and what remains in the public domain, without the need for specifically evaluating subject matter eligibility. The flaw in the modernist patent narrative however, is that by focusing the measure of societal progress on technological advancement and economic growth, we fail to adequately balance other equally important measures of progress such as improving public health, sustainability and access to basic research tools. A radicalized modern view of patent law allows us to challenge the incentive-centered narrative of promoting progress and consider this narrative’s impact on future discoveries, humanism, morality and the environment. The Supreme Court recently took a step in this direction by restoring a balanced view of subject-matter eligibility and questioning whether Congress needs to explore other paradigms for protecting certain patent-ineligible subject matter.
Simone A. Rose,
The Supreme Court and Patents: Moving Toward a Postmodern Vision “Progress”?,
23 Fordham Intell. Prop. Media & Ent. L.J. 1197
Available at: https://ir.lawnet.fordham.edu/iplj/vol23/iss4/2