Fixing Our Broken Patent System

44 Pages Posted: 25 Jun 2009

See all articles by Jay Dratler

Jay Dratler

University of Akron - School of Law

Date Written: June 25, 2009


For much of the past decade, scholars and others have criticized the U.S. patent system for a variety of legal, economic, political and practical reasons. I have been one voice in that chorus of criticism, with four previous articles over five years. Unfortunately, pending bills for so-called patent “reform” would make little or no fundamental substantive change.

This short article digests what I see as the most important substantive criticism and proposes specific solutions in the form of the “guts” of a new patent statute. Its statutory proposal tracks the current statute’s organization and has numerous annotations explaining what is the same, what is changed and why, and what never-before-codified principles of judge-made law are explicitly codified. Among the proposed statute’s fundamental changes are: (1) explicit restrictions on patentable subject matter to avoid patents on bare abstractions; (2) adoption of a first-to-file system requiring worldwide novelty; (3) abolition of the doctrine of constructive reduction to practice (with exceptions for reasonable simulation of costly-to-build inventions); and (4) replacement of the troublesome criterion of “nonobviousness” with economic criteria that real investors actually use when deciding whether to invest in risky technology development.

An introduction to the proposed, annotated statutory language explains its basic principles. They include: (1) recognizing invention as an economic and commercial process, rather than a single, abstract act of conception, (2) reducing blockage of future innovation by discouraging patents on abstract, early-stage research, and (3) changing the substantive focus of patent law from abstract semantics to practical economic and commercial criteria amenable to adjudication.

Keywords: patent reform, intellectual property, new patent statute, economics and patents, reduction to practice, nonobviousness, inventive risk, technological risk, codifying judge-made law, abstract crieria, economic criteria

JEL Classification: A12, K29, O31, O32, O33, O34, O38

Suggested Citation

Dratler, Jay, Fixing Our Broken Patent System (June 25, 2009). Marquette Intellectual Property Law Review, Forthcoming, U of Akron Legal Studies Research Paper No. 09-06, Available at SSRN:

Jay Dratler (Contact Author)

University of Akron - School of Law ( email )

150 University Ave.
Akron, OH 44325-2901
United States

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