By Jason Rantanen
Paul J. Heald and Susannah Chapman, Veggie Tales: Pernicious Myths About Patents, Innovation and Crop Diversity in the Twentieth Century:
Who is correct: the ethnobotanists, with their belief that patents destroyed plant diversity in the twentieth century, or the economists, with their belief that patent law is essential to increasing plant diversity through innovation? Based on a novel empirical analysis of vegetable crops and apples, Paul Heald and Susanna Chapman conclude that both are wrong: crop diversity has not declined since 1900; it has held steady or even increased. And patents have played at most a minor role in innovation of new varieties of vegetables and apples. While the authors' conclusions are not unassailable, they are surprising and thought provoking, and the paper is worth reading by anyone interested in patent policy, crop diversity, or even just the subject of where our food comes from.
One area in which I disagree with the paper's conclusions is in the interpretation of the data about the role patents play in the development of new varieties. In support of their conclusion that patents played an insignificant role role in incentivizing the creation of new types of apples, the authors point to data suggesting that patented varieties comprised only 10% of the varieties of apple stock available in 2004 but not in 1900 (i.e.: "new" varieties). Yet, 10% may be a significant figure in terms of marginal incentives, especially in an area where non-patent mechanisms are also likely operating to encourage invention and where the cost of engaging in inventive activity may be relatively low. Hobby gardeners, for example, may be producing a significant amount of new diversity in this area. In addition, the 10% figure is based a whole that includes imported varities and newly identified historic varieties; when limited to new varieties due to innovation alone, the figure would be closer to 22% based on the reported data.
The complete article is available via ssrn here.
Sarah Tran, Patent Powers
Much has been said about the Leahy-Smith America Invents Act, but little intensive scholarly analysis has yet appeared. Professor Tran engages in such an analysis with respect to a specific aspect of the AIA: the way in which it transforms the Patent and Trademark Office's rulemaking authority and how those changes affect the traditional power dynamic between courts and the PTO. The PTO's new powers, Professor Tran concludes, "conflict irreconcilably with the Federal Circuit’s traditional view of PTO authority," and "require that the Agency engage in complex, policy-based decisions that may carry profound implications for inventors, patent law practitioners, and society at large." Draft at 6. To resolve this conflict, she proposes an analytical framework to delineate the proper extent of the PTO's authority under the AIA, one that shifts greater substantive rulemaking authority to the patent office.
Professor Tran's current draft is available via ssrn here. The article includes an extensive chart setting out each of the PTO's new rulemaking powers under the AIA.