I have a new paper up at SSRN: “Beyond Invention: Patent as Knowledge Law.”
The decision of the Supreme Court of the United States in Bilski v. Kappos, concerning the legal standard for determining patentable subject matter under the American Patent Act, is used as a starting point for a brief review of historical, philosophical, and cultural influences on subject matter questions in both patent and copyright law. The article suggests that patent and copyright law jurisprudence was constructed initially by the Court with explicit attention to the relationship between these forms of intellectual property law and the roles of knowledge in society. Over time, explicit attention to that relationship has largely disappeared from the Court’s opinions. The article suggests that renewing consideration of the idea of a law of knowledge would bring some clarity not only to patentable subject matter questions in particular but also to much of intellectual property law in general.
The paper is part of a forthcoming symposium on the Bilski case, which also includes papers by Jason Schultz & Pam Samuelson (“‘Clues’ for Determining Whether Business and Service Innovations are Unpatentable Abstract Ideas”), Don Chisum (“Weeds and Seeds in the Supreme Court’s Business Method Patents Decision: New Directions for Regulating Patent Scope“), and Kevin Collins.
The paper is also part of a series of occasional works that I’ve been pursuing on the theme of knowledge as a driver of IP thinking, and as a driver of integrating various threads of IP and other “information” law. The current focus on “creativity” and “innovation” as such — without more — doesn’t explain enough of where the law has come from or where (I believe) it should be headed. (Among other things, I am headed in the direction of integrating ideas about “knowledge” with work on cultural commons.) All of this is pitched at a fairly conceptual level, however; policy and doctrinal payoffs are a ways off. The other papers so far are:
As always, comments and reactions are welcome.