The 2022 IPIL/Houston National Conference has been several years in the making, bringing intellectual property scholars together in Santa Fe, New Mexico. This year’s conference theme was patent law. As new technologies emerge, it is important to revisit whether the patent system still adequately promotes innovation. Times of change can also serve as an opportunity to reflect upon the historical underpinnings of our modern law. It is my honor to introduce the five essays that resulted from this outstanding event.
Sean Tu highlights the need for a Food and Drug Administration (FDA) reexamination procedure in FDA Reexamination: Increased Communication Between the FDA and USPTO to Improve Patent Quality. Under his proposal, experts in the U.S. Patent & Trademark Office (USPTO) would have the opportunity to interpret and analyze relevant FDA data pertaining to drugs that are patented or eligible for patent protection and would be given authority to invalidate or deny patents based on salient FDA information.
In Who Appeals (and Wins) Patent Infringement Cases?, Jason Rantanen, Charles Neff, Eweosa Owenaze, and Allison Williamson provide new empirical data regarding patent infringement litigation in federal court, examining differences in litigation by Patent Assertion Entities versus other patent asserters. Notably, the authors are making all of their data available to the public, so that other researchers can build off of their work.
In Enabling Artificial Intelligence, Keith Robinson discusses challenges that the enablement doctrine poses to patenting artificial intelligence (AI)-related inventions. He explores theories underlying the enablement doctrine and discusses how enablement differs based on technology. Based on this, Robinson suggests ways to tailor the application of enablement to AI patents.
Kara Swanson’s essay, Beyond the Progress of the Useful Arts: The Inventor as Useful Citizen, examines how the early governments of the United States, Republic of Texas, and Confederate States of America used their patents as political tools. She explores how patents in early U.S. history served a role beyond promoting innovation: they also shaped national identity. She further examines the racial underpinnings of the system, promoting inventorship by white property-owning men.
Stephanie Plamondon Bair and Laura Pedraza-Fariña’s essay, The Sociology and Psychology of Innovation: A Synthesis and Research Agenda for Intellectual Property Scholars, looks at the intersection of law, psychology, and sociology. They observe how macro-level sociological and micro-level psychological approaches to innovation can provide new insights for law and innovation.
I am pleased to recommend to the academy these works in the 2022 Symposium Issue of the Houston Law Review.