By Mark D. Janis & Timothy R. Holbrook. Full text here.
Many rules of patent law rest on a false premise about their target audience. Rules of patentability purport to provide subtle incentives to innovators. However, innovators typically encounter these rules only indirectly, through intermediaries such as lawyers, venture capitalists, managers, and others. Rules of patent scope strive to provide notice of the boundaries of the patent right to anyone whose activities might approach those boundaries, including, in theory, any member of the general public. But the rules of patent scope are practically incomprehensible to the general public. In this Article, we argue that rules of patent law should be designed in light of a more realistic conception of their probable audiences. Drawing on linguistic and network theory, we frame the audience problem as a tradeoff between two variables: (1) the complexity of the rule; and (2) the proximity between the rulemaking institutions and the audience. We then apply this complexity/proximity tradeoff to some especially problematic patent law rules, such as patent claim construction (and other aspects of patent scope determinations), and patentability rules such as those that bar patent protection based on an innovator’s own disclosures. We find that this focus on audience sheds new light on the defects in these rules, and provides a foundation for making normative choices about addressing these defects.