The title of this Article—The Second Patent Bargain—references a maxim that many students are taught in introductory intellectual property and patent law classes. Issuance of a patent constitutes a “bargain with the public”: In exchange for time-limited exclusive rights in an invention, an inventor agrees to disclose the invention and teach the public how to make and use it.

This Article argues that the patent term extension process—which extends, often by many years, the term of many patents on pharmaceuticals, medical devices, and other Food and Drug Administration (“FDA”)-regulated products nearing the ends of their standard patent terms—should be analyzed as a second bargain with the public. Because new drugs, medical devices, and other FDA-regulated products cannot be marketed without approval by the FDA, patent term extension is designed to “restore” some of the patent term “lost” during the approval process. Under the current system, patent owners receive highly valuable extensions of up to five additional years. These extensions serve to protect the patent owner’s exclusivity, high prices, and profits—sometimes billions of dollars in profits. The public bears the costs of extended exclusivity and delayed competition but currently receives no useful new information from the patent owner. Thus, from the public’s perspective, the current “second patent bargain” comes up short.

This Article argues for a fulsome second patent bargain, a more balanced quid pro quo. Patent term extension provides the public with a golden opportunity to demand and obtain richer, more complete information about how to use, learn from, and otherwise benefit from the patented invention. More precisely, patent term extensions should be conditioned on public disclosure of late-stage technical data on the safety and effectiveness of the patented invention—small portions of the trove of information that patent owners already provide to the FDA in secret. Public disclosure of this information will improve health care, accelerate science, and help hold both industry and the FDA accountable, without significantly disturbing the existing incentive structure for innovative research and development (“R&D”)-based companies.