Zero data supports the anti-commons thesis – technological availability has grown with greater numbers of patents

The main point for this softball pitch is the justification that follows: “[M]onopolization of those tools through the grant of a patent might tend to impede innovation more than it would tend to promote it.” Mayo, 132 S.Ct. at 1923. This theory (and the Court senses the weakness of its sole justification by using the words “might tend to”) is akin to a theory known in academic circles as the “tragedy of the anti-commons.” The “tragedy” in a few words is that “too many” patents give too many owners the right to inhibit all future research and progress. This hypothesis sprang from the 1998 writings of Professors Heller and Eisenberg. Heller; Eisenberg; Can Patents Deter Innovation? The Anti-commons in Biomedical Research; SCIENCE Mag. (May 1998). In truth, this so-called tragedy has been fully rejected by academic and empirical studies. See, e.g., Teece, David; The “Tragedy of the Anticommons” Fallacy: A Law and Economics Analysis of Patent Thickets and FRAND Licensing; Berkeley Tech.L.J. Vol 32:1489 (2017) (“The systematic problem identified here is undercompensation, and possibly overuse, not underuse.”). Upon reflection, the Supreme Court’s “tragedy” reasoning becomes a floating softball pitch that the Federal Circuit should hit to knock the entire eligibility doctrine back to statutory sanity.

Now, the Supreme Court often advises the use of “common sense” in patent law settings. See, e.g., KSR v. Teleflex, 550 U.S. 398 (2007). Let’s apply “common sense” to the Court’s “too many” patents justification. If the United States has “too many” patents endangering technological progress, where is the empirical evidence to prove that hypothesis? See, e.g., John P. Walsh, Ashish Arora & Wesley M. Cohen; “Effects of Research Tool Patents and Licensing on Biomedical Innovation”; PATENTS IN THE KNOWLEDGE-BASED ECONOMY 285, 285 (2003) (“[Despite] an increase in patents on . . . ‘research tools,’ . . . we find that drug discovery has not been substantially impeded.”). Where have fields of research been shut down by “too many” patents? Where have prices soared in technologies captured by overbearing exclusive rights? Where have groups of companies abandoned technology because it is too expensive or already locked up? Where is the evidence? The empirical evidence suggests that technology availability has soared and prices have declined as innovation creates intense cycles of research competition. Indeed, the semiconductor chips that run most high-tech phones cost less than a cup of designer coffee.

Actually, the reason patents do not deter, but spur scientific development, is embedded in the disclosure doctrines of the Patent Act. By statutory design, each patent on a new, non-obvious invention opens more doors to future research than it could ever close. Yet, where has the Federal Circuit undertaken to explain that the “too many patents” theory has no empirical or theoretical foundation?

The Supreme Court has served up a pitch that begs to be hit: After all, the Court’s justification for its new “exceptions” claim-by-claim validity doctrine does not pass the “common sense” test. No empirical data shows declining patent filing rates; no empirical data shows patents closing down technology markets; no empirical data shows patents causing research to dry up or grind to a halt. This softball pitch begs the Federal Circuit to show that the Court’s reasoning has no basis. Instead, the Circuit has yet to swing its bat at this softball pitch, instead swinging only its sledgehammer. Strike four!