South Carolina Law Review
intellectual property, patent law, politics
To observe that so-called intellectual property (IP) flowered in the late twentieth century, even supplanting, to a large extent, the place of real and tangible personal property in terms of corporate, if not individual, wealth, is almost trite. Since IP has become the bedrock of most commercial wealth, especially in international trade, and since international trade is, or is about to become, the center of most commercially valuable trade, a comprehensive understanding of IP has become essential. Instead of being the reserve of technicians, the field demands a full examination by jurists and the larger society.Although IP literature has blossomed, digesting its fruit is often difficult. This literature is available in two varieties: broad theoretical treatments so far removed from doctrine that its consumption seems to do more for the fruit than the palate, one might say, and narrow discussions of legal doctrine that have value only to the practitioner, if to anyone. This Article attempts to bridge that gap by showing the broad political significance of the otherwise narrow doctrine. Part II describes the inherent but largely unappreciated political nature of intellectual property judgments. Part III discusses the distinction between inventive and noninventive advances and challenges the assumption that the dividing line is rigid. Part IV explains the development of the “nonobviousness” inquiry, its reliance on the underlying hypothetical practitioner of ordinary skill, and the parallelism between the patent law inquiry and the vague and often uncertain professional standard and tort law's reasonable man standard. Part V introduces the concept of the trump of property, a strategy of defining patents according to property law concepts far removed from debates over the public interest in the issuance of patents. Part VI addresses the complications of the efforts to impose an international patent law system on countries of widely divergent cultures and values. Part VII concludes this Article, calling for a more complete understanding of patent law in order to facilitate more informed decisions in our own country and a critical assessment of internationalizing this area of law that reflects widely varied and deeply held political and cultural values around the world.
Michael Henry Davis, Patent Politics, 56 South Carolina Law Review 337 (2004)