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:

• George Ticknor Curtis, A Treatise on the Law of Patents for Useful Inventions in the United States of America (1849) (full text also available for 1854 and 1873 editions).
• Albert H. Walker, Text-Book of the Patent Laws of the United States of America (1883) (full text also available for 1885, 1889, 1895, 1904) (Walker on Patents has gone through many editions and is now Moy's Walker (MOY-PAT) on Westlaw).
• William C. Robinson, The Law of Patents for Useful Inventions (1890) (3 volumes).
• Joseph Rossman, The Psychology of the Inventor: A Study of the Patentee (2d ed. 1931) (republished as Industrial Creativity: The Psychology of the Inventor (1964)).
• Harry A. Toulmin, Invention and the Law (1936).
• Ward S. Bowman, Jr., Patent and Antitrust Law: A Legal and Economic Appraisal (1973) (link shows availability on ShareLaw, call # KF3116.B68).

Shorter works, mostly available for download (often subscription-based):

• Odin B. Roberts, Contributory Infringement of Patent Rights, 12 Harv. L. Rev. 35 (1898).
• Arnold Plant, The Economic Theory Concerning Patents for Inventions, 1 Economica 30 (1934).
• Giles S. Rich, The Relation Between Patent Practices and the Anti-Monopoly Laws, 24 J. Pat. Off. Soc’y 85 (1942).
• Fritz Machlup & Edith Penrose, The Patent Controversy in the Nineteenth Century, 10 J. Econ. Hist. 1 (1950).
• L. James Harris, Some Aspects of the Underlying Legislative Intent of the Patent Act of 1952, 23 Geo. Wash. L. Rev. 658 (1954).
• Fritz Machlup, An Economic Review of the Patent System (Subcomm. on Patents, Trademarks, and Copyrights of the S. Comm. on the Judiciary, Study No. 15, 85th Cong., 2d Sess. (Comm. Print 1958)).
• Giles S. Rich, Congressional Intent–Or, Who Wrote the Patent Act of 1952?, in Patent Procurement and Exploitation 61 (Sw. Legal Found. ed., 1963), reprinted in Nonobviousness—The Ultimate Condition of Patentability (John F. Witherspoon ed., 1980) (doesn't seem very easily accessible—anyone able to send me a copy?).
• Giles S. Rich, Laying the Ghost of the “Invention” Requirement, 1 APLA Q.J. 26, 38 (1972).
• Edmund W. Kitch, The Nature and Function of the Patent System, 20 J.L. & Econ. 265 (1977).
• Giles S. Rich, Escaping the Tyranny of Words – Is Evolution in Legal Thinking Impossible?, 60 J. Pat. Off. Soc’y 271 (1978).
• Donald W. Banner, Innovation, Patents and the National Interest, 12 Intell. Prop. L. Rev. 37 (1980) (couldn't locate online, but I found a copy in the Yale Law Library).
• A. Samuel Oddi, Contributory Infringement/Patent Misuse: Metaphysics and Metamorphosis, 44 U. Pitt. L. Rev. 73 (1982).
• Howard T. Markey, Why Not the Statute?, 65 J. Pat. Off. Soc’y 331 (1983).