Under the Constitution, the justification for a patent system—if there is one—is to advance the public welfare by promoting the progress of science. The Constitution authorizes a possible means to accomplish this goal by providing Congress the power to grant limited exclusive rights to those who sufficiently advance the public welfare through innovation. Our Conference will provide a forum for nationally recognized scholars and judges to discuss the trade-off between two interests of the public: the interest in development of new ideas and the interest in freedom to use ideas. The patent system is intended to serve the former, but imposes a cost on the latter. More specifically, the Conference will explore whether the added innovation achieved by the patent system justifies its cost to society, whether it operates within the Constitution’s requirements, and whether improvements can be made or if instead a different system, or no system at all, might be a better option.
My presentation was based on our paper, (R)evolution in Design Patentable Subject Matter: the Shifting Meaning of "Article of Manufacture, which highlights how unsettled the "article of manufacture" requirement of design patent law remains, especially with respect to computer-generated imagery, such as app icons on an smartphone or tablet.
