Protecting intellectual property is the government’s most important tool to encourage innovation, as our country has understood since its founding. The Constitution provides for the grant of exclusive patent rights to “promote the progress of science and the useful arts.” Thomas Jefferson, who was initially skeptical of the value of patents, later remarked, “An Act of Congress authorising [sic] the issuing patents for new discoveries has given a spring to invention beyond my conception.” From the very first patent, issued in 1790, to the 10 millionth patent, issued in June 2018,4 the United States has seen remarkable amounts of invention and innovation largely due to its strong patent system. A strong patent system is one that effectively provides exclusive rights for invention and innovation.
The American public benefits from innovations incentivized by this patent system and relies ever more on new technologies to make life more productive, enjoyable, and comfortable. Given these benefits, one might think that the public interest in maintaining a patent system with strong incentives for inventors would be unquestioned; for a long time, it was. Recently, though, judges in patent cases have begun to erode the rights of patentees for the purported purpose of protecting the public’s interest. Has the public’s interest really changed? This article examines shifting interpretations of the public’s interest in patent law and explains why an accurate understanding of the public interest actually requires us to restore our strong patent system to encourage innovation.
Kristen Jakobsen Osenga, What Happened to the Public’s Interest in Patent Law?, 19 Federalist Society Review (Dec 2018).