2018] PATENT SCHISMS 47
public company may churn out patents primarily in order to build a large
defensive patent portfolio, but later on decide that the best use for many of
those patents lies in aggressive patent monetization efforts.6
Hence, why parties obtain patents and how they ultimately use those
patents are distinct events with often differing motivations. Yet despite the
likely frequency of such schisms in purpose, scholars have devoted little
explicit attention to analyzing why and how such schisms develop.7 Scholars
have spent considerable time proposing a number of distinct theoretical
purposes that patents may serve.8 In doing so, scholars have recognized one
aspect of the patent system’s dynamism.9 But scholars up till now have
neglected to explicitly focus on another important dimension of that
dynamism: that patent owners frequently toggle between heterogeneous uses
of the same patent throughout its roughly twenty-year lif ecycle.10 This Article
takes up that task.
Scholars have also spent considerable time analyzing discrepancies
between patent law’s purported purposes and patent law as implemented,
including ways in which patents are used in defiance of those purposes.11 But
this Article, rather than focusing on discrepancies between patent law’s
purposes and whether patents are currently serving those purposes, instead
homes in on schisms between a patent owner’s own motivation in pursuing a
patent and how the patent is ultimately used. Furthermore and importantly,
it seeks to explain how and why these discrepancies arise, which questions
scholars have, at most, only implicitly addressed.
These questions are important for at least three reasons. First, as Part II
will explore, discrepancies between t he purposes for which parties obtain
patents and the ultimate uses of those patents—what I will hereafter refer to
as “patent schisms”—appear to be pervasive in a variety of important settings.
Troll, PCMAG (May 4, 2016, 8:00 AM), http://www.pcmag.com/ar ticle2/0,2817,2493155,00.asp
(describing the transition of IBM from a product producer to a patent lice nsing outfit).
6. See generally Jeremy W. Bock, Patent Quantity, 38 U. HAW. L. REV. 287 (2016) (discussing
the propensity of large firms to engage in “patent harvesting”).
7. For an example of scholarship that comes close, see generally Jeanne C. Fromer, Should
the Law Care Why Intellectual Property Rights Have Been Asserted?, 53 HOUS. L. REV. 549 (2015)
(assessing discrepancies between the purposes of patent law and how some parties actually use
8. See infra Section II.A.
9. See generally, e.g., Colleen V. Chien, Opening the Patent System: Diffusionary Levers in Patent
Law, 89 S. CAL. L. REV. 793 (2016) (explori ng ways by which to make the pate nt system more
conducive to dynamic uses of pa tents).
10. Id. at 815–17.
11. See generally, e.g., JAMES BE SSEN & MICHA EL J. MEURER , PATENT FAILURE: HOW JUDGES,
BUREAUCRATS, AND LAWYERS PUT INNOVATORS AT RISK (2008) (arguing that patent law as
implemented threatens the very purposes for which patents are intended and proposing judicial
solutions to this crisis); DAN L. BURK & MARK A. LEMLEY, THE PATENT CRISIS AND HOW THE COURTS
CAN SOLVE IT (2009) (describing how patents often fail to promote innovation except in a few
industries); Fromer, supra note 7.