The Sherman Antitrust Act is often called a "common law" statute, with courts expected to interpret broad phrases—restraint of trade, for example. The Patent Act, which is reasonably sparse on statutory language, is increasingly subject to contestable and very significant judicial interpretations of its key provisions. In this conference, we will evaluate how competition policy and patent law intersect, and the role of courts in this process.
In the America Invents Act, the U.S. Congress made the decision to focus on the institutional arrangements of patent law, focusing intently on how the U.S. Patent and Trademark Office (PTO) operates, with little focus on substantive patent law doctrines. This decision reflects the strategy of allowing the courts—with the aid of guidance from the PTO—to develop the substantive rules of patent law. With regard to the important questions of the breadth of patents—notably, whether business methods, software, or human genes should be covered by patents-Congress is, in effect, authorizing, indeed requiring, the common law approach.