Interring the Pioneer Invention Doctrine

82 Pages Posted: 9 Apr 2011 Last revised: 3 Jan 2015

See all articles by Brian J. Love

Brian J. Love

Santa Clara University School of Law

Date Written: April 6, 2011

Abstract

This article provides the first comprehensive analysis of patent law’s “pioneer invention doctrine” in almost two decades. Since the early 1990s, patent scholars have unanimously reported that case law favoring so-called “pioneer” patents – i.e., those disclosing the most revolutionary inventions – is dead letter. Accordingly, most scholars have ignored the pioneer doctrine entirely. Those few who have studied it, have consistently argued that the doctrine ought to be raised from the dead and reintroduced to patent law. In this article, I refute scholarly consensus on both points. First, my empirical results show that the pioneer doctrine is very much good law, especially at the district court level where it is routinely applied. In fact, I find that the pioneer doctrine actually arises in litigation just as frequently as other issues that receive substantial scholarly attention. Second, I argue that the pioneer doctrine should now be excised from patent law once and for all, rather than returned to a place of prominence. Reviewing patent doctrine, I show that pioneer inventors receive generous patent rights without further assistance. Turning next to the history of innovation, I argue that truly pioneering inventions do not exist. Despite the notoriety of inventors like Edison and Bell, a close reading of history shows that virtually all “pioneer” inventions were independently and contemporaneously invented by multiple groups working to solve the same known problems. Finally, presenting case studies from various industries, I show that dominant pioneer patent rights generally stifle rather than promote innovation because they significantly discourage investment in the development of next generation technology.

Keywords: pioneer patent, pioneer invention, doctrine of equivalents, multiple/independent invention

JEL Classification: 034

Suggested Citation

Love, Brian J., Interring the Pioneer Invention Doctrine (April 6, 2011). North Carolina Law Review, Vol. 90, p. 379, 2012. Available at SSRN: https://ssrn.com/abstract=1804546

Brian J. Love (Contact Author)

Santa Clara University School of Law ( email )

500 El Camino Real
Santa Clara, CA 95053
United States

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