Innovation and Recovery

I. INTRODUCTION II. INNOVATION FOR RECOVERY A. The Diversity of Innovation 1. Economic Innovation 2. Regulatory Innovation 3. Governmental Innovation B. Pragmatic Innovation III. RECOVERY AND INNOVATION A. Claim Interpretation B. The Paper Patent Doctrine C. Diversity of Innovation and Accommodation of Pioneers D. Patentable Subject Matter IV. CONCLUSION I. INTRODUCTION I would like to thank Dean Joseph Kearney and Professor Kali Murray, who invited me to give this lecture, and also the faculty of Marquette Law School for hosting me these few days. I especially appreciate being given the chance to deliver a lecture named in honor of Judge Helen Nies, as I am a great fan of her work in the patent area. (1) Indeed, a recent article (2) of mine traces the Supreme Court's reengagement in the patent area to the Court's grant of certiorari in American Airlines v. Lockwood, (3) in which Judge Nies wrote a marvelous dissenting opinion at the Court of Appeals. Her dissent reads very much like a thoughtful and considered brief that was trying to attract Supreme Court review. She focused on a split in circuit authority on the issue in the case and articulated with great expertise the reasons why the issue was important. (4) In a subsequent law review article, Judge Nies explicitly stated her belief that dissents from Federal Circuit opinions could "provide[] an impetus for Supreme Court review," as "[j]udges disputing a point more likely will pique the Court's interest than lawyers disputing a point." (5) She also defended the value of dissenting opinions, stating her conviction that "a judge who disagrees with the majority must make the effort to write a dissent, especially here at the Federal Circuit where dissents are virtually the sole means by which contradicting positions on the law are presented fully and without personal bias to the Supreme Court." (6) Judge Nies's dissent in Lockwood was a signal moment in modern patent law, as it marked a watershed in the Federal Circuit's relationship to the Supreme Court. The Court's decision in 1994 to grant certiorari in Lockwood ushered in a period of renewed interest by the high court on patent law issues. In the first twelve years after the creation of the Federal Circuit (1982-1994), the Supreme Court heard only five patent cases, and those cases were only tangentially related to substantive patent issues. (7) Starting in 1994 and continuing to the present day, the Supreme Court has considered, on average, at least one patent law case per term, with the majority of the cases involving core matters of patent policy. (8) I have devoted attention to Judge Nies's dissent in Lockwood not merely because it is appropriate to recall the great jurist after whom this lecture was named, but also because my lecture today may be viewed as a dissent to some of the current approaches in modern patent law. Like Judge Nies, I too believe in the inherent value of dissent. While agreement can be signified with mere silence, disagreement imposes a responsibility to speak and to write, for only then can "contradicting positions" be fully and carefully presented. The title for my lecture today is "Innovation and Recovery." The lecture is premised on the undeniable fact that our nation has recently suffered a recession. We now hope for recovery. (9) Yet despite all the difficulties imposed by a recession, and despite our strongest desires to have it retreat into history, a recession also has great value to society. This value goes beyond mere cliched paraphrases of the famous advice attributed to Nicolo Machiavelli, "Never waste the opportunities offered by a good crisis." (10) The opportunities afforded by a recession are not merely the chance to seize power or to achieve other political objectives. Recession provides the chance to learn and to change. Most importantly, recession provides a lesson in the fallibility of human knowledge and in the need for continued improvement. …