Peter S. Menell - The Common Law Development of the American Patent System: What History Can Teach Us

What is the judiciary’s role in developing and evolving patent law? Patent law is essentially a product of the legislature, yet throughout history, courts have been especially active in developing (not just interpreting) this body of law. In The Mixed Heritage of Federal Intellectual Property Law and Ramifications for Statutory Interpretation, Peter Menell, a professor at Stanford Law School and the University of California Berkeley School of Law, illustrates how patent and copyright laws have diverged from the conventional understanding of the Constitutional allocation of law-making authority, and instead have evolved as a mixture of judicial common law and legislative codification and supplementation. In this article, Professor Menell, leads a vastly informative journey from the constitutional beginning of patent law through the modern era, and even provides some insight for the future. According to Menell, this historical context is necessary to properly interpret and apply modern patent law. Professor Menell demonstrates that despite the congressional basis of patent law, the judiciary has always had a large role in developing patent law. As evidence, Menell points to several prominent features of patent law that cannot be found in the United States Code. He also tracks patent law through three distinct periods in history and reveals how the judiciary has played a significant role in shaping the law in each period.

Dan Burk: Do Patents Have Gender?

This is a guest post by Allison Tait, a Gender Equity and Policy Postdoctoral Associate with the Yale Women Faculty Forum, who has previously posted on Written Description. A few comments from me follow below.

Dan Burk wants to find out whether or not patents are gendered. Since everything from Happy Meal toys to energy bars and tool kits can be gendered, a reasonable feminist would not be surprised to find that patents are in fact gendered. The real question is how they are gendered.