A patent consists of only one right: the right to exclude others from practicing the patented invention. However, one class of patents statutorily lacks the right to exclude direct infringers: surgical method patents are not enforceable against medical practitioners or health care facilities, which are the only realistic potential direct infringers of such patents. Despite this, inventors regularly file for (and receive) surgical method patents. Why would anyone incur the expense (more than $20,000 on average) of acquiring a patent on a surgical method if that patent cannot be used to keep people from using the patent?
The traditional answer is that although the patent statute forecloses enforcement of surgical method patents against doctors, it does allow for contributory liability of such patents by medical device manufacturers. However, this Article provides evidence of completely nonexcludable surgical method patents—patents in which direct infringers are statutorily protected from liability and contributory infringers do not exist. These nonexcludable patents challenge the widely held view that the only reason an inventor would incur the cost of patenting is to acquire the right to exclude.
To explain the existence and appeal of nonexcludable patents, this Article looks to patent-signaling theory and personhood theory of real property. Essentially, some inventors patent because they want to signal others about some aspect of the invention or the inventor. While other inventors acquire these nonexcludable patents because the invention forms part of the inventor’s “public persona.”
There are doctrinal payoffs to this theoretical insight as well. For instance, inventors who approach the patent system from a personhood angle bring with them a completely different set of costs and benefits than those traditionally assumed. To these inventors, the primary benefit of the patent system is the public disclosure that patenting provides. This contradicts almost all extant patent theories, which consider disclosure to be the primary cost that inventors seek to avoid. As such, this Article provides a novel understanding about the motivation to patent, an understanding that is much more concerned with knowledge dissemination and recognition for creation of that knowledge than with exclusive rights.