55:2 Toward a Distributive Agenda for U.S. Patent Law


As commonly understood, the U.S. patent system is a utilitarian regime that employs exclusive rights and market incentives to promote technological progress. Unlike international and foreign regimes, the domestic patent system less explicitly addresses non-utilitarian issues such as access, equity, and distributive justice in conferring and enforcing exclusive rights. This Article, however, challenges this conception of the U.S. patent system as unconcerned with distributive considerations on descriptive and normative grounds. First, contrary to prevailing characterizations, it reveals numerous “distributive mechanisms” within and associated with the U.S. patent system that widen access to patented technologies, encourage the development of technologies to serve marginalized communities, and broaden participation in the patent system itself. Second, it argues at a normative level that such emphasis on distribution is consonant with the normative foundations of U.S. patent law and its commonly understood objectives of promoting progress, maximizing utility, and enhancing efficiency. Third, building on these insights, this Article sketches the contours of a distributive agenda for U.S. patent law. It identifies roles for Congress, courts, and agencies—particularly the USPTO—to lower the cost of critical patented technologies, encourage the development of technologies particularly valuable to marginalized communities, and broaden and diversify the base of inventors obtaining protection for their creations.