Showing papers by "Andrew W. Torrance published in 2009"

Patents and the Regress of Useful Arts

Abstract: Patent systems are often justified by an assumption that innovation will be spurred by the prospect of patent protection, leading to the accrual of greater societal benefits than would be possible under non-patent systems. However, little empirical evidence exists to support this assumption. One way to test the hypothesis that a patent system promotes innovation is experimentally to simulate the behavior of inventors and competitors under conditions approximating patent and non-patent systems. Employing a multi-user interactive simulation of patent and non-patent (commons and open source) systems ("The Patent Game"), this study compares rates of innovation, productivity, and societal utility. The Patent Game uses an abstracted and cumulative model of potential innovations, a database of potential innovations, an interactive interface that allows users to invent, make, and sell these innovations, and a network over which users may interact with one another to license, assign, infringe, and enforce patents. Initial data generated using The Patent Game suggest that a system combining patent and open source protection for inventions (that is, similar to modern patent systems) generates significantly lower rates of innovation (p

Patents and the Regress of Useful Arts

Abstract: Patent systems are often justified by an assumption that innovation will be spurred by the prospect of patent protection, leading to the accrual of greater societal benefits than would be possible under non-patent systems. However, little empirical evidence exists to support this assumption. One way to test the hypothesis that a patent system promotes innovation is experimentally to simulate the behavior of inventors and competitors under conditions approximating patent and non-patent systems. Employing a multi-user interactive simulation of patent and non-patent (commons and open source) systems ("The Patent Game"), this study compares rates of innovation, productivity, and societal utility. The Patent Game uses an abstracted and cumulative model of potential innovations, a database of potential innovations, an interactive interface that allows users to invent, make, and sell these innovations, and a network over which users may interact with one another to license, assign, infringe, and enforce patents. Initial data generated using The Patent Game suggest that a system combining patent and open source protection for inventions (that is, similar to modern patent systems) generates significantly lower rates of innovation (p

Patent Expertise and the Regress of Useful Arts

Abstract: Employing a multi-user interactive simulation of patent and non-patent (commons and open source) systems (the "Patent Game"), this study compares empirical data on rates of innovation, productivity, and social utility generated by groups of expert users deliberately selected to possess formal expertise in patent law and open innovation. The results show no statistically significant difference (at a p-level of 5%) in rates of innovation among a pure patent system, a patent/open source system, and a commons system. By contrast, the results do show statistically significant differences in rates of productivity and social utility among all three systems, with both productivity and social utility lowest in a pure patent system, higher in a patent/open source system, and highest in a pure commons system. These results are inconsistent with the orthodox assumption that patent systems generate more “Progress of...useful Arts” than do more open models of innovation, such as patent/open source or pure commons systems, but are consistent with some of the predictions and observations from the field of use and open innovation.

Neurobiology and Patenting Thought

Abstract: Many have argued that thought should constitute per se unpatentable subject matter, and some have even suggested that any patent claim that includes a mental step should lie outside patentability. Many courts have long disagreed with such a draconian rule, and have instead upheld myriad patent claims that include mental steps. Recently there has been renewed interest in the venerable Mental Steps Doctrine, and in patents claiming thoughts or aspects of thoughts, by the courts, including, most notably, the Court of Appeals for the Federal Circuit and the United States Supreme Court. Insights from neurobiology about how to differentiate categories of thought can offer useful criteria for deciding between patentable and unpatentable mental steps, and for setting more coherent and defensible boundaries on the patenting of thought. In particular, this article argues that thoughts subject to "executive control" should be situated more towards the patentable end of the spectrum, whereas "default thoughts" should be situated closer to the unpatentable end of the spectrum. This schema represents somewhat of a departure from the traditional view that First Amendment interests should privilege sophisticated, expressive thought by protecting it from patentability. Nevertheless, it accords well with Thirteenth Amendment interests, privileging thoughts that cannot be avoided by protecting them from patentability, and thus preventing the iniquity of involuntary patent servitude.

Physiological Steps Doctrine

Abstract: In vivo conversion is a process, often metabolic in nature, wherein one substance, usually a chemical compound, is altered significantly by physiological pathways in the body into one or more different substances. For example, when a patient ingests a therapeutic drug, that drug is often converted by the natural physiology of the digestive system into one or more chemically different metabolites. The end products of in vivo conversion sometimes possess therapeutic efficacy. Many patent applications have claimed such therapeutic metabolites, either as compositions per se or as parts of methods of treatment. Although the USPTO has granted patent claims to such products generated by in vivo conversion of ingested drugs, and courts have noted the eligibility of such products as patentable subject matter, never has a United States court of final appeal upheld such a patent claim as valid, enforceable, and infringed. The unanimity of results in cases involving patent infringement triggered by in vivo conversion is striking. In fact, its very improbability suggests a common underlying explanation for why in vivo conversion does not ever seem to trigger patent infringement. Explanations based on inherency or a lack of evidence provide a satisfactory explanation for only a minority of in vivo cases. The Physiological Steps Doctrine, which suggests that products and processes of in vivo conversion are unpatentable subject matter under U.S. patent law, offers an explanation that spans all in vivo conversion cases. Though the rationales offered to explain the results in a number of in vivo conversion cases are suggestive, there are several advantages for a more explicit recognition of the Physiological Steps Doctrine. Consistent with much international, European, and U.S. patent law, the Physiological Steps Doctrine provides a theoretical underpinning to explain the results in cases involving products and processes of in vivo conversion. This theoretical underpinning not only has explanatory power for interpreting previous case law but is also useful in predicting the outcome of future in vivo conversion cases. In addition, the Physiological Steps Doctrine increases the understanding of where inventions involving human beings, and the biological products and processes thereof, fit within the spectrum of patentable subject matter.