104 Iowa L. Rev. 2535 (2019)

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Abstract

What is a patent? That is, what is the nature of a patent? This question has split patent law. Some scholars (and judges) have argued that patents should be understood as a species of property, akin to plots of land, while others have reasoned that patents are best understood as a type of regulatory license, like Environmental Protection Agency permits to pollute. This debate has assumed multiple methodological forms as well. Some scholars (and judges) have approached the question from a formalist perspective, asking what other legal instruments patents most resemble, or how they have been treated historically. Others have approached it from a more functionalist perspective, asking instead what purpose patents are meant to serve and what legal rules would best effectuate that purpose. This debate has significant ramifications for many of patent law’s most important institutional questions, including the allocation of power between the Federal Circuit and the United States Patent and Trademark Office (“PTO”), the constitutionality of inter partes review, and the legality of the PTO Director’s practice of choosing which patent judges should sit on Patent Trial and Review Board panels. Yet the debate has also largely been submerged. Courts and scholars have often failed to recognize this central schism in patent law. The result is that proponents of each side of the debate have frequently talked past one another without acknowledging the fundamental conceptual principles that divide them. The primary object of this Essay is to describe and explain the deep structure of this disagreement. The Essay then turns to the institutional consequences of arriving at a conclusion regarding the nature of patents. I demonstrate that once one has arrived at a conceptual understanding of patents, answers to the most consequential institutional questions fall neatly into place.