March 2012 Vol. 110 No. 5 THE REVIEW
ARTICLES

The Myth of the Sole Inventor

Mark A. Lemley

The theory of patent law is based on the idea that a lone genius can solve problems that stump the experts, and that the lone genius will do so only if properly incented. But the canonical story of the lone genius inventor is largely a myth. Surveys of hundreds of significant new technologies show that almost all of them are invented simultaneously or nearly simultaneously by two or more teams working independently of each other. Invention appears in significant part to be a social, not an individual, phenomenon. The result is a real problem for classic theories of patent law. Our dominant theory of patent law doesn’t seem to explain the way we actually implement that law.

Maybe the problem is not with our current patent law, but with our current patent theory. But the dominant alternative theories of patent law don’t do much better. Prospect theory—under which we give a patent early to one company so it can control research and development—makes little sense in a world in which ideas are in the air and are likely to be happened upon by numerous inventors at about the same time. And commercialization theory, which hypothesizes that we grant patents in order to encourage not invention but product development, seems to founder on a related historical fact: most first inventors turn out to be lousy commercializers who end up delay- ing implementation of the invention by exercising their rights.

If patent law in its current form can be saved, we need an alternative justification for granting patents in circumstances of near-simultaneous invention. I offer another possibility: patent rights encourage patent races, and that might actually be a good thing. Patent racing cannot alone justify a patent system, but it may do more than any existing theory to explain how patents work in practice.

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The Problem of Policing

Rachel A. Harmon
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NOTES

Discarding the North Dakota Dictum: An Argument for Strict Scrutiny of the Three-Tier Distribution System

Amy Murphy

In Granholm v. Heald, the Supreme Court held that states must treat in- state and out-of-state alcoholic beverages equally under the dormant Commerce Clause and established a heightened standard of review for state alcohol laws. Yet in dictum the Court acknowledged that the three-tier distribution system—a regime that imposes a physical presence requirement on alcoholic beverage wholesalers and retailers—was “unquestionably legitimate.” Though the system’s physical presence requirement should trigger strict scrutiny, lower courts have placed special emphasis on Granholm’s dictum, refusing to subject the three-tier distribution system to Granholm’s heightened standard of review. This Note argues that the dictum should be discarded and that courts should carefully scrutinize the three-tier distribution system. Under Granholm’s heightened standard of review, the three-tier distribution system would be found unconstitutional.

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Antitrust Rulemaking as a Solution to Abuse of the Standard-Setting Process

Adam Speegle
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Toward A Multiple Consciousness of Language: A Tribute to Professor Mari Matsuda

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House Swaps: A Strategic Bankruptcy Solution to the Foreclosure Crisis

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