Academic journal article Brigham Young University Law Review

Patent Nationalism and the Case for a New U.S. Patent Working Requirement

Academic journal article Brigham Young University Law Review

Patent Nationalism and the Case for a New U.S. Patent Working Requirement

Article excerpt

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A patent is the grant of a monopoly over an invention. But a patent represents a quid pro quo. As the Supreme Court has explained, "The grant of an exclusive right to an invention was the creation of society - at odds with the inherent free nature of disclosed ideas - and was not to be freely given."1 In subjecting a patent monopoly over itself, the public gets something in return.

What the public should receive in return is a subject of endless debate. However, there has not been an urgent need in recent times to deeply examine the fundamental purpose of the U.S. patent system. After all, from the end of the Cold War to today, the United States undisputedly is the predominant global economic and inventive power. It seems silly to question whether the U.S. patent system is doing enough for the public when the United States is leading the world in technology and innovation.

But the competitors of the United States have been catching up. The 2017 edition of "Global Trends," a text prepared by the National Intelligence Council for the President every four years, provides this assessment of the United States in the changing global dynamics:

Economic, technological, and security trends are increasing the number of states that can exert geopolitical influence, bringing the unipolar post-Cold War period to a close. The economic progress of the past century has widened the number of states- Brazil, China, India, Indonesia, Iran, Mexico, and Turkey-with material claims to great and middle power status. . . . Even with profound uncertainties regarding the future of global economic growth, leading forecasters broadly agree that emerging market economies like China and India will contribute a much larger share of global GDP than is currently the case - shifting the focus of the world's economic activity eastward.2

The U.S. intelligence apparatus itself admits that the Pax Americana is at an end. Even now, the rivals of the United States are beginning to surpass the United States in terms of inventions and scientific research.3 The future promises only more challenges and competition for U.S. science and engineering.

The reality is that the U.S. patent system, if left unchanged, will exact patent monopolies on Americans over an increasing number of inventions of which Americans play no part in their invention and play no part in their manufacture. And it is time to consider whether such a patent system is doing enough public good and, if it is not, what needs to be changed so that it can better serve the people of the United States.

This Article makes the case that, in view of the global dynamics, a new, robust working requirement should be introduced into U.S. patent law. The Article begins with an examination of the fundamental purposes that patent law should serve. After exploring the dominant justifications for the U.S. patent system and their deficiencies in light of these changing times, it proposes a return to the nationalistic conception of patent law as a means to develop the national economy and state of science and technology, as the Framers of the Constitution envisioned when they explicitly armed Congress with the power to promulgate a patent law.

This Article subsequently explains what a working requirement is through an exploration of the variants of the working requirement in foreign patent laws. it then sets forth how the particular species of working requirement that encourages the domestic manufacture of patented goods can help the U.S. patent system fulfill its original, intended function and how the working requirement may fit with the existing patent law and serve the industrial policy of the United States.

The final section of this Article fleshes out the working requirement with policy details. It analyzes how the working requirement should be structured to prevent abuse and presents a law and economics analysis as to when and how the working requirement can be applied. …

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