A Method for Reforming the Patent System

The principal recent studies of patent reform (NAS (2004), FTC (2003), Jaffe and Lerner (2004)) contend that a uniform system of patent protection must (or should) be available for "anything under the sun made by man" based upon one or more of the following premises: (1) the Patent Act requires this breadth and uniformity of treatment; (2) "discriminating" against any particular field of "technology" would be undesirable; (3) discrimination among technologies would present insurmountable boundary problems and could easily be circumvented through clever patent drafting; and (4) interest group politics stand in the way of excluding any subject matter classes from patent law or reforming the patentability requirements, duration, defenses, or remedies for a particular subject matter class. As a result, these studies consider and recommend reforms that would apply to all fields of patentable subject matter ("systemic reforms") and largely ignore reforms that would either bar particular classes of "technology" from patent protection (e.g., software, business method, genomic sequences) or afford different classes of patentable subject matter different requirements or remedies ("categorical reforms"). This Article sets forth a method for evaluating and formulating patent policy that considers both systemic and categorical reforms and sketches out how that method could be applied to the current patent "crisis."