Competitive Patent Law

Can U.S. patent law help American businesses compete in global markets? In early 2011, President Barack Obama argued that, to obtain economic prosperity, the United States must “out-innovate . . . the rest of the world,” and that patent reform is a “critical dimension[]” of this innovation agenda. Soon thereafter, Congress enacted the most sweeping reforms to U.S. patent law in more than half a century, contending that the changes will “give American inventors and innovators the 21st century patent system they need to compete.” Surprisingly, no legal scholar has assessed whether patent reform is capable of making American firms more competitive in global markets. This Article begins to fill this void by examining whether U.S. patent law can provide U.S. innovators with enhanced incentives to invent. The Article argues that traditional approaches to improving U.S. patent law, including the recent patent reform act, likely will do little to help Americans invent more than their foreign rivals. Nevertheless, helping U.S. businesses compete in global markets is vital to our economic prosperity, as we face a crippling recession, declining innovation capacity, and increasing pressure from foreign competition. Accordingly, this Article argues that federal lawmakers should consider nontraditional approaches to U.S. patent law, including using law to foster a culture in the United States that promotes innovation.