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A CASE STUDY OF INOPERABLE INVENTIONS: WHY IS THE USPTO PATENTING PSEUDOSCIENCE? - page 8 / 39

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WISCONSIN LAW REVIEW

inventions in the field of physics, where operability can often be determined as an objective fact using fundamental and universally accepted scientific principles.52

The second inquiry in determining if a crackdown on inoperable patents would stifle innovation is to ask whether more skepticism on the part of the USPTO would stifle innovation in practice. The history of attempts to patent baldness cures illustrates both that innovation continues to occur despite previous patent rejections and that the patent system can adjust to scientific advances.53 At one time, the public thought that baldness cures were inherently incredible,54 thus creating an institutional bias against attempts to patent such cures. By 1999, the Federal Circuit concluded that curing baldness was no longer an incredible proposition, noting that many drugs are now recognized to be effective in treating the condition.55 Thus, when baldness cures evolved from pseudoscientific wishful thinking to effective FDA- approved medications, the USPTO adjusted its opinion. Innovation occurred despite the USPTO’s skepticism, and in the interim the USPTO protected the public, at least in theory,56 from an onslaught of ineffective baldness cures.57

3.

PATENTEES ARE ONLY PARTIALLY TO BLAME

As to the argument that applications to patent inoperable inventions are simply the result of inequitable conduct by the patentee, such practices do undoubtedly occur. Patent lawyers have been known to manipulate the claims or the patenting procedure to avoid an

52.

See discussion of Newman v. Quiggs, infra Part II.B, for an example of a

court applying objective scientific principles.

  • 53.

    See, e.g., In re Cortright, 165 F.3d 1353, 1357 (Fed. Cir. 1999).

  • 54.

    In re Ferens, 417 F.2d 1072, 1074 (C.C.P.A. 1969); In re Oberweger,

115 F.2d 826, 829 (C.C.P.A. 1940).

  • 55.

    In re Cortright, 165 F.3d at 1357.

  • 56.

    Curiously, the court mentioned that “approximately one hundred patents”

for curing baldness had already been issued at the time In re Cortright first came before the court. Id. The USPTO issued these patents despite the fact that this was the first case to overrule the institutional skepticism towards baldness cures, suggesting that even institutional skepticism is not an effective deterrent against issuing patents to inoperable inventions.

57.

In fact, the term “patent medicine” is synonymous with the ineffective or

dangerous medications marketed before the Pure Food and Drug Act of 1906. See Wikipedia, Patent Medicine, http://en.wikipedia.org/wiki/Patent_medicine (last visited Nov. 1, 2006). For a detailed history of the patent medicine era in America, see JAMES HARVEY YOUNG, THE TOADSTOOL MILLIONAIRES: A SOCIAL HISTORY OF PATENT MEDICINES IN AMERICA BEFORE FEDERAL REGULATION (1961); JAMES HARVEY YOUNG, THE MEDICAL MESSIAHS: A SOCIAL HISTORY OF HEALTH QUACKERY IN TWENTIETH-

CENTURY AMERICA (1992).

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