Patents as Commercial Assets in Political, Legal and Social Context

Tulsa Law Review Volume 51 | Issue 2 Article 20 Spring 2016 Patents as Commercial Assets in Political, Legal and Social Context Adam Mossoff George Mason University School of Law Follow this and additional works at: http://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Adam Mossoff, Patents as Commercial Assets in Political, Legal and Social Context, 51 Tulsa L. Rev. 453 (2016). Available at: http://digitalcommons.law.utulsa.edu/tlr/vol51/iss2/20 This Book Review is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact . Mossoff: Patents as Commercial Assets in Political, Legal and Social Conte MOSSOFF_4.12.16 (DO NOT DELETE) 4/12/2016 12:47 PM PATENTS AS COMMERCIAL ASSETS IN POLITICAL, LEGAL AND SOCIAL CONTEXT Adam Mossoff* CHRISTOPHER BEAUCHAMP, INVENTED BY LAW: ALEXANDER GRAHAM BELL AND THE PATENT THAT CHANGED AMERICA (HARVARD UNIVERSITY PRESS 2015). PP. 268. HARDCOVER $ 35.00. Alexander Graham Bell is an icon of American invention. He is well known both in popular culture1 and to judges, lawyers, and academics.2 For many lawyers and legal scholars, though, our knowledge of Bell and his famous telephone invention is most likely gleaned from excerpts of the Supreme Court’s famous decision in 1888 that affirmed the validity of his patent and its infringement by numerous telephone companies.3 Of course, these are excerpts, because this is the only Supreme Court case record and opinion that fills an entire volume of the United States Reports.4 This context has now been expanded, and the scholarly perspective of Bell’s patented innovation has been radically revised, by Christopher Beauchamp’s Invented by Law: Alexander Graham Bell and the Patent that Changed America.5 The title of Beauchamp’s book, Invented by Law, makes it appear that his primary focus is the famous Supreme Court opinion and the multiple patent lawsuits that led to it. This assumption is understandable given the heavy emphasis in scholarship today on patent litigation in both empirical studies and theoretical analyses.6 It is also the impression created in the first few pages, in which Beauchamp notes that the answer to the hoary * Professor of Law, George Mason University School of Law. 1. See, e.g., Schoolhouse Rock! Mother Necessity, where would we be? (Am. Broad. Co. 1977) (“Ring me on the Alexander Graham Bell/Thank you Alexander for the phone/I’d never get a date/I’d never get a job/Unless I had a telephone”). 2. See, e.g., Bilski v. Kappos, 561 U.S. 593, 620 n.2 (2010). 3. See, e.g., ROBERT PATRICK MERGES & JOHN FITZGERALD DUFFY, PATENT LAW AND POLICY: CASES AND MATERIALS 92-97 (4th ed. 2007). 4. See Dolbear v. Am. Bell Tel. Co., 126 U.S. 1 (1888) (“The Telephone Cases”). 5. CHRISTOPHER BEAUCHAMP, INVENTED BY LAW: ALEXANDER GRAHAM BELL AND THE PATENT THAT CHANGED AMERICA (2015). 6. See, e.g., David L. Schwartz & Jay P. Kesan, Analyzing the Role of Non-Practicing Entities in the Patent System, 99 CORNELL L. REV. 425 (2014) (assessing empirical claims about patent litigation); Eric R. Claeys, The Conceptual Relation Between IP Rights and Infringement Remedies, 22 GEO. MASON L. REV. 825 (2015) (assessing the eBay decision and the nature of injunctions in securing property rights). 455 Published by TU Law Digital Commons, 2015 1 Tulsa Law Review, Vol. 51 [2015], Iss. 2, Art. 20 MOSSOFF_4.12.16 (DO NOT DELETE) 456 4/12/2016 12:47 PM TULSA LAW REVIEW [Vol. 51:455 question in American patent law, “Who is the inventor?,”7 includes as its answer both lawyers and judges.8 Beauchamp observes that “[t]he Bell litigation was one of the largest courtroom conflicts of any kind during the nineteenth century.”9 For many scholars and lawyers, a gripping tale of courtroom battles appears to await us in the following pages. But this assumption would be wrong—another example of the classic cliché that one should not judge a book by its cover. Beauchamp signals that patent litigation is not the primary focus, as he quickly points out that a complete analysis of “the effect of patents on society means looking at how they were exploited in practice, not just how they were litigated in the courts.”10 Accordingly, the litigation that gave rise to the Supreme Court case, known today as The Telephone Cases given that it consolidated appeals from many separate lawsuits, does not appear until well over one-third of the way into the book.11 Before this point, Beauchamp surveys the rise of patents as commercial assets within their legal, political, and social context in America, which then sets the stage for Beauchamp’s careful and in-depth account of Bell’s similar commercial exploitation of his patented telephone.12 In his characteristically engaging and witty writing style that presents facts he has culled from primary-source materials,13 Beauchamp does indeed cover the litigation campaigns waged over the various patents on telephone technology throughout the United States and in Europe.14 But Invented by Law does much, much more than this.15 Beauchamp details at great length the wide-ranging commercial, legal, social, and political context in which inventions are created, patented, brought to market through myriad institutional and commercial mechanisms, and ultimately brought to the courthouse.16 Thus, one of the most important insights from Beauchamp’s meticulous case study of Bell’s invention of the telephone is that “[p]atents were ultimately a tool of business” that “exist as landmarks in the history of technology only because economically motivated actors were willing and able to seek particular articles of intellectual property at particular times.”17 Invented by Law simply cannot be given its proper due in a brief review essay, because there is so much in it of value to lawyers, historians, economists, and many other scholars.18 Thus, this essay will be limited to two issues of interest to lawyers and legal 7. At least, this was the fundamental question before the America Invents Act of 2011, which altered the American patent system to a first-to-file system. Leahy-Smith America Invents Act, Pub. L. No. 112-29, § 3, 125 Stat. 284, 285. See id. at 285-86 (establishing the “effective filing date” of the patent application as the standard for assessing the novelty requirement). 8. See BEAUCHAMP, supra note 5, at 5, 84. 9. Id. at 5. 10. Id. at 8. 11. Id. at 78. 12. See generally id. 13. See BEAUCHAMP, supra note 5. See also Christopher Beauchamp, The First Patent Litigation Explosion, YALE L.J. (forthcoming 2016), http://cpip.gmu.edu/wp-content/uploads/2015/06/The-First-Patent-LitigationExplosion-Christopher-Beauchamp.pdf. 14. BEAUCHAMP, supra note 5, at 78, 148. 15. See id. 16. See generally id. 17. Id. at 206 (emphasis added). 18. To take but one example of an important issue unaddressed in this review essay: Be (...truncated)