Tuesday, October 16, 2012

Classic Patent Scholarship

The primary focus of this blog is new IP scholarship, but it is often hard to appreciate (and even harder to write) new scholarship without understanding the historical context of the work. So what are the classic works of IP scholarship that young scholars should be aware of?

In the coming months, I plan to ask IP (mostly patent) law professors to share a few older (at least pre-2000) works that influenced their own scholarship and that they think young scholars should be aware of—either highly cited canonical works (which are still worth pointing out to those new to the field) or less famous works that seem underappreciated even by the experts. I'll post their responses, along with brief summaries of the pieces they mention.

This project was inspired by Professor Madison (Pittsburgh Law), who provided an excellent series of posts back in 2010 on his Madisonian blog on the pre-1985 "lost classics" of copyright, trademark, and patent law. (There are also some suggestions of canonical IP pieces following this 2006 post on PrawfsBlawg.) Below are Madison's lost classics of patent law, reordered and with links to help locate copies. What else do you think should be on this list? Watch for future posts with responses from patent law professors, or feel free to share your own suggestions in the comments!

Books, mostly available as full text online, ordered by date:
Shorter works, mostly available for download (often subscription-based):


  1. I would add Mary Helen Sears, Combination Patents and 35 U.S.C. § 103, 1977 Detroit C.L. Rev. 83. It's remarkable the extent to which her ideas in this piece are vindicated in the Supreme Court's nonobviousness decision, 40 years later, in KSR v. Teleflex (2007).

  2. Thanks for the suggestion, Joe! I haven't read her work, so I'll check it out.

  3. Another helpful suggestion, received by email:

    "Just thought I'd add a book to the Classic Works: Webster's on Patents. Webster's is a hit-list of English patent cases pre-1850 or so. If you read U.S. patent cases pre-1850 (and there are a surprising number), they all reference Webster's as authority. (Assumedly because there wasn't enough U.S. law on the subject.) Indeed, it was Webster's reporting of cases the Supreme Court referenced in its famous early patent cases, Le Roy and O'Reilly, and from which we've derived almost all of our section 101 jurisprudence."