The United States patent system was born during the Industrial Age — at a time where the focus was on promoting innovation in machines, and tangible means of changing the world. With the dawn of the Information Age, innovation is increasingly intangible. The industrial age laws, as currently interpreted, are not well-suited for the changing and evolving technological world. Information age innovators face challenges at the United States Patent and Trademark Office, through the judicial system and at the United States International Trade Commission. It is time for a change in the system to reflect the realities of modern technology. Adequate protection is not currently provided for intangible innovations. This lack of protection has wide-ranging implications, especially now as data processing is increasingly migrating to “the cloud,” geographic boundaries are eroding, and intangible technology is advancing in importance. The industrial age laws can incentivize innovation in the information age — and it is time to recognize this before private ordering subsumes the public interest.
Elizabeth I. Winston, Information Age Technology, Industrial Age Laws, 86 Tenn. L. Rev. _ (2019).