Patents' New Salience

Abstract

The vast majority of patents do not matter. They are never enforced or licensed and, in consequence, are almost always ignored. This is a well-accepted feature of the patent system and has tremendous impact on patent policy. In particular, while there are many aspects of patent law that are potentially troubling—including grant of unmerited patents, high transaction costs in obtaining necessary patent licenses, and patents’ potential to block innovation and hinder economic growth—these problems may be insignificant in practice because patents are underenforced and routinely infringed without consequence.

This Article argues that technological developments are greatly increasing the salience of patents by making patents easier and cheaper to find and enforce. These developments—including private platforms’ adjudication systems and AI-driven patent analytics—profoundly impact how the patent system functions and upend the system’s present dependence on underenforcement and ignorance. Where most patents could previously be safely disregarded, formerly forgotten patents now matter.

This Article makes four contributions to the literature. First, by exploring the technology that is rendering patents newly salient and explaining how this alters basic assumptions underlying the patent system. Second, this Article demonstrates that although new technology is increasing the number of patents that can be reviewed and enforced, this transformation sometimes decreases the depth of patent analysis. Because it is difficult to draw conclusions about patent scope or validity without in-depth analysis, this omission means that technological review of patents may give patents unmerited influence.

Third, this Article shows a sharp divergence between public policy goals and private use of patents. For several decades, the courts and Congress have been reforming patent policy to decrease the impact of patents to alleviate concerns that patent owners hinder innovation by others. In clear contrast to this goal, this Article demonstrates an increase in patent salience that is due exclusively to the use of private platforms and technologies. Further, the use of private platforms to find, analyze, and enforce patents creates the risk that choices made by companies and software developers will displace substantive patent law. Finally, this Article suggests policy reform, including ways to improve technology and patents and adjusted approaches to patent doctrine and theory.

Keywords: Patents, innovation, intellectual property