Are myth and metaphor the primary drivers of innovation in intellectual property law?

It wasn't me....

Are myth and metaphor the primary drivers of innovation in intellectual property law?  First, I think the answer is no (knock the straw over). However, they likely play a role in shaping public opinion.

As Blogmeister Emeritus Jeremy warned in his parting comments, the traditional media needs to be watched when it comes to their positions on intellectual property. Even the Economist can make a mistake as Neil Wilkof recently pointed out. The media and the public love to run with a myth or a metaphor to point out “oh the IP system is so broken.” Even scholars, commentators and activists have no problem using a myth or a metaphor to their advantage (including me). Do myth and metaphor matter—the answer is likely yes.

Who doesn’t like a good story about a troll? Indeed, the troll metaphor is so prevalent, we have patent trolls, copyright trolls, trademark trolls, and even trade secret trolls. Recently, I gave a talk at the VIT University Law School in Chennai, India, and discussed patent trolls. A very bright student asked whether we could use the metaphor to describe the United States when it tries to push TRIPs standards on least developing countries (implementation delayed until 2021 and 2033 for pharmaceuticals.) My response was essentially--“why not.” The use of “troll” isn’t tied to the story of the troll under the bridge anymore. It is a bad dude who everyone should not like—especially when tied to IP. If you are on the side against the US, then why not use the term. There are, however, some good reasons we shouldn’t use the language. In an excellent recent article entitled "IP as Metaphor," by Professor Brian Frye at the University of Kentucky (also a talented film maker) in the Chapman University Law Review, Frye states:

"[I]ntellectual property metaphors provide the best of both worlds for rent seekers. They enable rent seekers to rely on the ostensible welfarist justification for intellectual property, in order to claim that it is efficient in theory, without actually ever considering what the efficient scope and term of intellectual property actually is. And they enable intellectual property owners to draw on moral intuitions about intellectual property ownership, without being obligated to actually justify the scope and duration of intellectual property in moral terms. In order to understand intellectual property, we must abandon intellectual property metaphors, and evaluate intellectual property in welfarist terms. Of course, it is probably impossible to abandon metaphor entirely, because it performs such a fundamental role in our conceptual systems. But we can certainly adopt metaphors that emphasize the welfarist justification of intellectual property, rather than obscuring it. For example, we could use the metaphor of “privilege” rather than “property” to describe those rights. Or we could use the metaphor of “charity” to think of the relationship between innovators and the public."

I am just a baby (UPC)! Who knows what
I will do?!

As to myth, what comes to mind is the case law cause of, and the USPTO’s reaction to, business method patents. Yes, business method patents can be a problem—perhaps unneeded, overbroad and indefinite. The cause of the large number of applications for business method patents is often attributed to the State Street case (1998) authored by the venerable Judge Giles Rich. However, that case wasn’t even a business method case! The claims at issue in State Street were system claims. All of that stuff about business methods was likely dicta. It set forth the useful, concrete, tangible result test, but still dicta as to business methods. It wasn’t until AT&T v. Excel Communications (1999) that business method patents were arguably sanctioned by the Federal Circuit. Indeed, even though there was such a brouhaha over business method patents in the U.S. for quite some time, examiners at the USPTO were applying the “technological arts” test which minimized the issuance of some of those supposed odious patents until the Ex Parte Lundgren case (2005) by the Board of Patent Appeals and Interferences. (It would take another 5 years to get to the U.S. Supreme Court’s Bilski case, which sanctions some business method patents, and is limited by the subsequent Alice decision.) Of course, quite a few business method type patents slipped through and we continued to have some “not so great patents” issued. However, the USPTO may have been “Rationally Ignorant” as Professor Lemley may say. And, the USPTO may have been savvy before Ex Parte Lundgren.

Unfortunately, business method patents still appear to be troublesome even after the establishment of a prior user defense for business methods, the Alice case, and the recent America Invents Act broadly applicable prior user defense. Notably, the Federal Circuit issued an opinion, Blue Calypso v. Groupon, on March 1, 2016, which takes a broad interpretation of the application of Covered Business Method Review by the USPTO’s Patent Trial and Appeal Board. The decision, following precedent, takes a wide view of what is a financial patent, and a narrow view of what is a “technological invention,”(which takes a patent outside of the Covered Business Method Review.) It essentially sweeps more patents into review by the USPTO. Business method patents still haunt us, and intellectual property law innovation continues — hopefully not to the detriment of innovation.

Professor Frye explores metaphors such as the farmer (reap where you have not sowed), the thief, as well as troll and others.  As he notes, the metaphor obscures what we should be doing or asking, but is such a useful way to comprehend difficult to understand concepts. Yet because of the power of a metaphor, it can push reform. Metaphor is probably not a primary driver, but it does influence us. No one likes a bad actor. (I thought there were not bad people, just bad behavior). What does the future hold? At Patently-O, Professor Dennis Crouch, in a post titled “US Patent Applicants Heading to the EPO,” notes that many practitioners believe that the EPO is less restrictive in its application of patent eligible subject matter than the USPTO. [Is that the beginning of a new myth? What do you think?] Interestingly, he also notes that recent data from the EPO supports that belief and that the Unified Patent Court will only make those EPO patents more valuable. Others have said it, but will the UPC be a troll friendly zone?