Legal scholars recognize the importance of philosophical studies to the analysis of our system of patents and other intellectual property regimes.¹ Many of these scholars apply John Locke's theory of property rights² to determine which technological advancements should be eligible for patent protection. Commentators have turned less enthusiastically to Georg Wilhelm Friedrich Hegel, perhaps the most significant philosopher to acknowledge intellectual property laws explicitly in his works.³ They have ignored the works of Aristotle, Karl Marx, and Martin Heidegger, philosophers who contemplated the nature of technology itself.⁴

The patent system is a regime of technological evaluation.⁵ Thus, technology as a philosophical concern aids appreciation of the nature and function of patent law. This article undertakes a philosophical analysis with regard to the doctrine of the pioneer invention. Under the common law principle of pioneer inventions, courts may grant a broader scope of protection to patents covering revolutionary technological advances than to those covering more modest achievements.⁶ Courts construe pioneer patent claims more broadly than others, thus allowing the claims to encompass a broader range of so-called "equivalents" during an infringement determination.⁷

The pioneer invention doctrine provides a good illustration of the importance of the philosophy of technology for two reasons. First, laypersons and technologists share the view that pioneer inventions are crucial to the sort of technological advance⁸ that the patent system is designed to encourage.⁹ They are the inventions with which we are most familiar, and those we care most about. Innumerable popular histories of technological progress focus on pioneer inventors and the revolutionary advances they are said to have brought about.¹⁰

Second, pioneer inventions are of profound interest to scholars of the patent law. Although the studies of these scholars share an economic orientation, their conclusions have been inconsistent. Professor A. Samuel Oddi has proposed the grant of a "revolutionary patent" for pioneer inventions.¹¹ To obtain a revolutionary patent, an applicant would have to demonstrate that the claimed invention represented an extraordinary technical advance, changed existing production or consumption patterns, and required an extensive development effort. Under this scheme, revolutionary patents would obtain an extended duration and scope of protection in comparison with ordinary utility patents.

In contrast, Professors Robert Merges and Richard Nelson argued that the patent law should, in appropriate instances, favor improvement inventions over pioneer inventions.¹² Such a regime would selectively curtail protection for pioneer patents so that other inventors would be able to develop noninfringing refinements more easily. To achieve this end, courts would employ the reverse doctrine of equivalents¹³ and other interpretive tools to maximize the incentives to develop incremental improvements on existing pioneer patents.

This Article does not attempt to choose between these competing views. It appears that further empirical evidence will be required before the economic analysis of pioneer patent law can offer meaningful insights.¹⁴ Instead, this Article will focus on the courts' rationales for the protection of pioneer inventions, and consider how they fare in light of historical experience and philosophical thought.

Part II of this Article describes the courts' current view of technology. It begins by detailing the patent acquisition process, patent infringement suits, and the role of the pioneer invention doctrine. It then discusses the origins of the pioneer invention doctrine in early American cases, its development by subsequent courts, and its current application by the Court of Appeals for the Federal Circuit.¹⁵ The Article then evaluates two rationales offered for the pioneer invention doctrine: judicial recognition of the difficulty in drafting claims that fairly define the invention, and a reward of stronger protection to those inventors who have disclosed such important advances. This Article acknowledges that claim drafting is a difficult matter, but contends that in many instances, inventions presenting only a modest advance in a crowded technological field also pose drafting problems of extraordinary intricacy. The Article then considers the second justification: incentives and rewards for the disclosure of revolutionary technological advances. By distinguishing pioneer inventions solely by the extent to which they advance the technological arts, without reference to the place these inventions have assumed in society, patent law is assuming one of two alternative technological values. The first is that technology is a neutral force, with no values beyond the use to which it is put. Therefore, inventions are unworthy of evaluation on any dimension other than the technical. Alternately, the patent law's award of negative property rights may be considered as too meager a means of influencing the development of technology. This Article offers a third possibility to explain current patent policy, technological resignation. Such a view holds that, although the patent system indeed has an impact upon the progress of individual inventions, the advance of technology is an inevitable societal force in which the scheme of patents can play only a marginal role. Part II concludes with an analysis of these three views of technology, and argues that they derive from the philosophy of Aristotle and Marx.

Part III presents an alternate conception of technology that is more in line with both historical experience and with modern philosophical thought. The writings of German existentialist philosopher Martin Heidegger are introduced as a more appropriate conceptual basis for understanding the role of technology in society. Several examples are offered, including the Snowmobile Revolution of the late 1960's in northern Finland, the Opium War between Great Britain and China in the nineteenth century, and the recent United States experience with the Supersonic Transport, to question the assumption behind pioneer invention doctrine that technology is a neutral and inevitable social force. A review of the literature surrounding these experiences indicates that the patent law has not taken proper heed of the work of technological historians and anthropologists, who would vigorously contest patent law's implied perspective that technological change is inevitable and devoid of values. The Article closes in Part IV with brief suggestions of how future scholarship might employ philosophical and historical insights in order to evaluate the patent system, and for how the purely technical criteria for patentability and infringement could be expanded to include a concern for the societal impact of the patented product.

An individual seeking patent protection for an invention must first prepare an application for submission to the PTO. The application primarily consists of the invention's "specification."²⁰ The specification is an often lengthy description of the technical problem the inventor faced and the invention produced to solve that problem. The specification includes the invention's ingredients and a description of how the ingredients work together.²¹ The description must be so complete as to enable practitioners in the technical field to use the invention.²² It also must include what the inventor believes to be the invention's "best mode," the superior method of accomplishing the invention.²³

The specification serves more as an introduction and foundation than as a source of legal rights. The patent statute reserves that role for the claims, the precise delineations of the invention placed at the close of the specification.²⁴ The claims are the primary source of the bundle of property rights associated with a patent.²⁵

Claims consist of three primary parts.²⁶ The first, the preamble, is an introductory statement defining the invention in a general way.²⁷ Next is the transition, a short phrase, usually "comprising" or "consisting."²⁸ The body, listing all the elements of the invention and how they interact, concludes the claim.²⁹ The following claim, describing an artificial heart, illustrates this sequence:

The requirement of nonobviousness is typically the most onerous.³⁷ The patent statute denies protection to those inventions where "the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains."³⁸ An inquiry into nonobviousness primarily entails a comparison of the claimed invention to existing patents, publications and other sources of apposite prior art.³⁹ Other considerations, such as the sophistication of practitioners in the technical field, the invention's commercial success, or the failure of others to develop the patented invention in the face of an industry need, are also apposite.⁴⁰

PTO examiners reject most patent applications at least once. Any patents that are granted are the product of a dialogue, or so-called patent prosecution, between applicant and examiner.⁴¹ The examiner may take a different view of the prior art than the applicant, often reading prior art references more broadly than the applicant. Research may also reveal similar prior inventions that the applicant did not discover, making the applicant's submitted claim language anticipated or obvious. An applicant responds to examiner rejections by amending claims or submitting evidence that suggests the invention merits patent protection. A patent issues when the examiner is satisfied that the invention has met the statutory standards.⁴²

Once the PTO issues a patent, the patentee obtains the right to exclude others from making, using or selling the patented invention in the United States.⁴³ Those who do so without the authority of the patentee commit patent infringement.⁴⁴ Because the exclusive rights granted by a patent are measured by the scope of the language of the patent claims, claim interpretation looms extraordinarily large in infringement actions. Claims must be read and interpreted⁴⁵ both by competitors seeking to avoid infringement and by courts ultimately resolving the issue. As with texts in other areas of the law, the language of claims is not determinative.

A patent can be infringed literally or nonliterally. Literal infringement occurs only when an accused device exactly embodies each element of the original patent's claim.⁴⁶ In such instances, the claim is said to "read on" the accused device.⁴⁷ Because the omission of any claim element from the accused device indicates that no literal infringement occurs, patent owners often attempt to expand the scope of their claims by invoking the doctrine of equivalents. The doctrine grew from courts' efforts to stop the piracy of an invention by competitors who would copy the invention with minor modifications solely to avoid infringement.⁴⁸ Under the doctrine, an accused device that "performs substantially the same function in substantially the same way to obtain the same result"⁴⁹ as the patented invention may be found to infringe. Although those individuals making, using or selling such devices would escape liability for literal infringement, such minor, "equivalent" changes do not allow them to avoid infringement under the doctrine of equivalents.

Courts employing the doctrine of equivalents face a policy choice when considering the range of equivalents that should be granted to patent holders.⁵⁰ The statutory requirements of novelty and nonobviousness ensure that all patents advance the art; the difficulty lies in determining how broadly these advancements should occupy the field of potentially infringing devices. Policy supports the ability of competitors to study patent claims, exercise legitimate engineering efforts, and produce new, noninfringing products. Such a regime should not be extended, however, to allow copyists to defeat legitimate patent rights through minor, insignificant changes.⁵¹

In determining the suitable breadth of equivalents, courts will often turn to the specification; courts may look to the patent application or the patent's prosecution history for assistance.⁵² Because terms used in the patent application's terse claims must comport with their use in the more lengthy specification, the specification is a valuable aid to interpretation of the claims. Courts have made use of a patent's drawings as well.⁵³ A third important resource is the patent's prosecution history. Under the doctrine of prosecution history estoppel, a patent holder cannot obtain a construction of a claim previously surrendered during prosecution.⁵⁴ If, for example, the patent holder overcomes an examiner's prior art rejection by arguing that the claim does not envelop a given feature, the patent holder is bound by that construction in later proceedings.⁵⁵

The Supreme Court set out the requirements for pioneer invention status in Westinghouse v. Boyden Power Brake Co.,⁶⁰ indicating that the term pioneer, "although used somewhat loosely, is commonly understood to denote a patent covering a function never before performed, a wholly novel device, or one of such novelty and importance as to mark a distinct step in the progress of the art, as distinguished from a mere improvement or perfection of what has gone before."⁶¹ As "most conspicuous examples of such patents" it cited the sewing machine of Elias Howe, Jr.; Samuel Morse's electrical telegraph; and the telephone, invented by Alexander Graham Bell.⁶²

Various tests for pioneer status have been suggested since Westinghouse. Yet the Supreme Court's early formulation in Westinghouse remains the most articulate; such inventions must achieve a "function never before performed," be a "wholly novel device," or constitute "a distinct step in the progress of the art."⁶³ Of these factors, the third appears the most helpful. With some difficulty given the technical subject matter, courts can examine previous patents in the art to determine both the measure of technological advance considered sufficient to merit a patent, as well as the general level of skill in the art, and contrast these findings with the technological leap claimed in the alleged pioneer invention.

In contrast, the first two Westinghouse factors appear vague and rather unhelpful. The reach of the first Westinghouse factor depends largely upon the meaning a court provides to the term "function." "Function" serves as a broad, general term for the usual, required, or expected activity of some object.⁶⁴ Because this term can be read so broadly, it provides scant guidance on which inventions should be considered pioneers. At one semantic level, all patentable inventions perform a new function-the actual words of the claims themselves. At another, if the function of the invention is interpreted broadly, almost no invention could claim to achieve a function never before performed. For example, functions as broadly stated as harvesting grain, transporting individuals, or communicating information are well known. The second Westinghouse factor suffers from a similar deficiency. The patent statute includes a requirement for novelty, as it did when the Court wrote Westinghouse.⁶⁵ Unless the Court meant merely to cast every patentable invention as a pioneer, the term "wholly" must be taken as a very significant modifier.

The famous cotton gin of Eli Whitney serves as an example of how difficult it might be to meet the "new function" or "wholly novel" tests. The cotton gin may well be the archetypical pioneer invention in the lay sense of the word. Both jurists⁶⁶and historians⁶⁷ have attributed a sequence of historical events to this device which reach deep into the American character. Yet, whether the cotton gin could ascend to pioneer status for the attainment of "a function never before performed" or something "wholly novel" is unclear. The manufacture of cotton cloth may be nearly as old as human civilization itself.⁶⁸ Indeed, the same court that heaped extravagant praise upon the achievements of the cotton gin also noted that "[t]he cotton plant has furnished clothing to mankind before the age of Herodotus."⁶⁹ As the production of cotton cloth requires the laborious manual separation of often intractable cotton fibers from seed, innovative individuals developed primitive mechanical devices for ginning cotton as early as the twelfth century.⁷⁰ American cotton growers used descendants of these devices prior to Whitney's invention. These earlier gins employed two rotating grooved cylinders that separated seed from fiber as cotton bolls passed between them.⁷¹

Gins prior to Whitney's functioned efficiently only with long staple, or Sea Island, cotton, where the fiber is easily removed from its black seed. In contrast, the fibers of short staple or Inland cotton grown in the southeastern United States cling tightly to its green seed. In inventing a device that would effectively gin short staple cotton, Whitney continued to use a pair of rotating cylinders, but added a slotted metal breastwork which immobilized seeds while they were being stripped of fiber.⁷²

In the sense of separating cotton fiber from seed, then, Whitney's invention cannot be said to have performed a heretofore unknown function or to have been wholly novel. Nor can mechanically ginning cotton, or ginning cotton through two cylinders, be claimed as its unique function. Only if one describes its function with more specificity-readily ginning short staple cotton-would Whitney's invention fulfill either of the first two Westinghouse factors.

More recent definitions of pioneer inventions comport with the Westinghouse factors, although they tend to be considerably more terse. Courts have considered an invention to be a pioneer when it presents a "broad breakthrough,"⁷³ "major advance,"⁷⁴ or "basic operational concept";⁷⁵ or is "broadly new"⁷⁶ or "devoid of significant prior art."⁷⁷ Pioneer inventions have alternatively been called primary,⁷⁸ basic,⁷⁹ generic,⁸⁰ original,⁸¹ or key⁸² inventions. The sole index of pioneer status, then, is the position occupied by the invention in its technological field.⁸³ Patented inventions that represent great technical accomplishments receive a broader range of equivalents than other, less technically accomplished inventions. Nontechnical factors, such as the invention's impact on society or commercial success, are of at best fleeting concern.⁸⁴ Pioneer status is thus a term of art. In some sense, of course, every patentable invention is a technological pioneer in the common meaning of the term due to the strict prerequisites of the Patent Act.⁸⁵ For an invention to be considered a pioneer within the meaning of the pioneer invention doctrine, however, it must meet what amounts to a test of extraordinary nonobviousness.⁸⁶

A review of the history of the pioneer invention doctrine provides interesting insights into its rationale and application. One of the first patent cases to reach the Supreme Court, Evans v. Eaton,⁸⁷ presents the genesis of the pioneer invention doctrine. This infringement suit involved a patent on a hopper-boy, a shaft-shaped container for cooling, drying and distributing meal as part of the process of flour production.⁸⁸ The case turned upon the interpretation of a Patent Act provision which voided patents that described inventions that "had been in use, or had been described in some public work anterior to the supposed discovery of the patentee . . . ."⁸⁹ The accused infringer contended that an earlier invention, the Stouffer hopper-boy, rendered the asserted invention unpatentable. Although the patented invention was not identical to Stouffer's hopper-boy-indeed, it offered some improvements over the prior art-the jury accepted the argument and relieved the defendants of infringement liability.⁹⁰

Writing for the Court, Justice Story affirmed the holding of the circuit court that the patent was invalid for presenting an insufficient improvement over an original, primary invention.⁹¹ The Court approved jury instructions providing that a device not identical to the patented invention, but nonetheless "substantially the same in principle," could be unpatentable.⁹² Although the Court did not explicitly employ the doctrine of equivalents, it nonetheless endorsed jury instructions remarkably similar to the modern formulation of the doctrine:⁹³ "if the two machines be substantially the same, and operate in the same manner, to produce the same result, though they may differ in form, proportions, and utility, they are the same in principle . . . ."⁹⁴ While Eaton did not specifically name the Stouffer hopper-boy as a pioneer, the Court offered the principle that an original, primary invention could render subsequent narrow improvements unpatentable.⁹⁵

To the extent Eaton employed the doctrine of equivalents and the pioneer invention concept, it did so in the context of patent validity. Modern cases, of course, would employ these notions in infringement suits.⁹⁶ The use of the pioneer invention concept in infringement suits had occurred at least by the time the Supreme Court decided Morley Sewing-Machine Co. v. Lancaster,⁹⁷ often cited as its first recognition of the pioneer invention doctrine.⁹⁸ The Court noted that

Although the pioneer invention doctrine originated in the context of patent validity, courts have since pursued this doctrine with a surprising vigor in the infringement context. The dearth of policy statements accompanying use of the pioneer invention doctrine in the case law betrays an uncertainty as to its contextual origins and its justifications.

Courts have granted pioneer inventions a broad range of equivalents in part due to the view that it is difficult to draft an adequate claim for a pioneering invention. Under this view, courts consider pioneer inventions so difficult to define that the pioneer inventor should be granted some flexibility during infringement determinations. According to one court:

A review of the art of claim drafting reveals that these concerns are genuine, albeit somewhat misplaced.

Claim drafting is thus among the more difficult feats of technical writing.¹¹⁵ It requires considerable analytic, research and writing skills, as well as scientific and technological competence.¹¹⁶ Claims submitted to the PTO must reduce sophisticated technical concepts to a single sentence, and yet present an accurate description of the invention.¹¹⁷ Claims must also be written with a keen awareness of the technical field in which the invention lies. Often only a few carefully chosen words of limitation mark a patentable distinction between the claimed invention and prior technical knowledge.

Formalized drafting conventions further limit the linguistic tools available to a patent prosecutor.¹¹⁸ None of these conventions are found in the patent statute,¹¹⁹ and many are startlingly arcane, dating back to the earliest days of United States patent claiming practice.¹²⁰ Among these conventions are that claims ordinarily cannot employ alternative expressions;¹²¹ may refer only indirectly to intangible elements such as holes, grooves and recesses;¹²² and must be presented as a single English sentence.¹²³ References to illustrations in the specification are also held not to affect the meaning of the claim,¹²⁴ and although photographs and models may be submitted in unusual instances,¹²⁵ their use does not impact the scope of patent protection.¹²⁶

Further, the choice of format by which a drafter may describe an invention is, for practical purposes, quite limited. Years of PTO interpretation and judicial precedent have resulted in a discrete number of well-known claim formats: apparatus,¹²⁷ method,¹²⁸ article of manufacture,¹²⁹ composition of matter,¹³⁰ means-plus-function,¹³¹ product-by-process,¹³² Markush,¹³³ and Jepson.¹³⁴ While we need not step back to the reign of the House of Lancaster to trace the origin of these stylized claiming methods,¹³⁵ the weight of precedent often appears to be the best justification for their continued use.

A similar phenomenon has occurred with respect to frequently employed technological terms; as these words have been interpreted by the courts and the PTO over time, settled meanings have evolved.¹³⁶ Although patentees ostensibly possess the ability to coin their own terms for use in claims,¹³⁷ they have scant incentive to stray from established meanings, and often confront interpretive problems in subsequent litigation when they dare to do so.¹³⁸ The result of these forces is a rigid and formalized system of patent claiming. This phenomenon is not limited to patent law, of course; terms used in other legal documents, such as insurance contracts and commercial leases, also become entrenched. But stagnation in claim language presents an extreme difficulty in a field designed to develop with advancing technologies.

The rigid, formalistic art of claim drafting erects considerable barriers against the accurate description of technological inventions. Of course, the lack of opportunity to study the art of claim drafting in an educational setting presents additional challenges to the would-be patent prosecutor. While an increasing number of law schools include intellectual property courses in their curricula, only a handful offer would-be patent attorneys the opportunity to draft even a single patent claim. Although patent prosecutors must pass an examination which tests knowledge of PTO procedures, the extent to which this procedure enhances claim drafting skills is dubious. A patent bar review course, typically lasting no more than a week, is the usual preparation for the examination,¹³⁹ ensuring only a minimal level of drafting competence. Further, although the PTO imposes certain educational requirements upon those sitting for the examination, these relate only to scientific and technological training.¹⁴⁰ Astonishingly, the PTO does not even consider training or experience in technical writing as a prerequisite for qualification as a patent prosecutor.¹⁴¹

In comparison, pioneer inventions are not always accompanied by such difficulty in drafting claims. Because the field of endeavor in which the pioneer invention sits is sparse, inventors can draft short claims using sweeping language with ample technological scope.¹⁴³ Further, as the patent examiner lacks a significant number of prior inventions to reference as the basis for rejection of the pioneer claims, the application often advances readily through the prosecution process. The decreased dialogue between the applicant and examiner results in a meager prosecution history, and thus a lesser basis for prosecution history estoppel that may limit the scope of the claims in subsequent litigation.¹⁴⁴

Brief research on recent patents judicially declared to claim pioneer inventions confirms this reasoning. A consideration of the prosecution history, or file wrapper, of these patents indicated that the paucity of prior art was, if anything, the forerunner of a smooth prosecution despite the sweeping claims generally found in these patents.¹⁴⁵ Conversations with patent practitioners confirm this short study. One noted that he would be a more effective drafter of claims describing a pioneer semiconductor device than a simple mechanical kitchen appliance, given the notoriously crowded state of the art. Although this brief research certainly cannot be accorded any sort of empirical validity, it provides some support for the reasoning employed in this article.

The difficult and time-consuming process of claim drafting concerns courts that adjudicate infringement suits. As the Federal Circuit recognized, "[w]e are up against what we must realistically consider a growing inability of speakers and writers, lawyers, technicians, and layman, to say what they intend to say with accuracy and clarity."¹⁴⁶ Indeed, given all the difficulties associated with our formal system of claiming, a surprising paucity of literature questions the emphasis our patent system places upon claims, or justifies the access inventors need to attorneys specializing in claim drafting in order to obtain meaningful intellectual property rights, as compared to those seeking copyright or trademark protection. Thus, to justify the pioneer invention doctrine, courts are relying, inappropriately, on the rationale that claims for pioneer inventions are difficult to draft. Rather, it seems that such claims may be relatively easy to draft. If courts are concerned with the difficulty of claim drafting, they should address the problem directly rather than using pioneer status as a poor proxy for claim drafting difficulties. Courts could, for instance, consider the source of the prosecution of an individual patent itself, by examining its file wrapper and eliciting testimony from the inventor, examiner and claims drafter.

The Seventh Circuit and Supreme Court opinions in Kokomo Fence Machine Co. v. Kitselman¹⁵⁰ illustrate two fundamentally different approaches a court could take under this reward-for-invention rationale. Pioneer status could be granted either for inventions that represent major technical breakthroughs, or those that promise or achieve a major impact on society. Kitselman asserted several patents against the Kokomo Company in an infringement suit.¹⁵¹ The key patent at issue claimed a fence-making machine that could be used in the field at the site where the fence would ultimately stand.¹⁵² Both the patented and accused machines employed twisting gears and spindles to weave a wire mesh.¹⁵³ Both machines achieved a mesh by supplying wire, which was wrapped around spools, to the appropriate spindle during the weaving process.¹⁵⁴ But the two devices used different methods to feed wire into the weaving apparatus.¹⁵⁵ Kitselman's patent described spool-carriers that were controlled by an adjustable hand lever, connected so as to move identically, and transferred among spindles while stationary.¹⁵⁶ In contrast, the Kokomo machine employed spool-carriers that were controlled by a rotating crank, arranged to move independently, and transferred while rotating.¹⁵⁷ The differences between the two spool-carriers were such that the spool-carrier described in the Kitselman patent would not operate in the Kokomo device without modification.¹⁵⁸

These disparities indicated that the Kokomo device did not literally infringe the Kitselman patent.¹⁵⁹ A comparison of the Kitselman patent claims with the Kokomo device, however, presented a close case for infringement under the doctrine of equivalents.¹⁶⁰ The suit ultimately turned upon the scope of the equivalents to be accorded these claims.¹⁶¹ If the court read the claims narrowly, the accused device would not infringe.¹⁶² A more liberal interpretation, however, would ensnare the Kokomo Company's device.¹⁶³ The crux of Kitselman's case, then, was whether he could successfully argue that his patent claimed a pioneer invention and thus that his claims deserved a liberal interpretation.¹⁶⁴

In an unreported decision, the district court held that the Kitselman patent was not a pioneer, and that the Kokomo Company was not an infringer.¹⁶⁵ On appeal, the Court of Appeals for the Seventh Circuit reversed.¹⁶⁶ First, the court presented a detailed analysis of the technological field, including the advances in the art offered by Kitselman.¹⁶⁷ The court concluded that the distinctions between Kitselman's invention and prior technological knowledge were subsidiary and simple.¹⁶⁸ Nonetheless, it called the results achieved by the patented invention revolutionary.¹⁶⁹ Reasoning that "Kitselman disclosed to the world for the first time a practical means of supplying the farmer with a highly useful fence," it accorded the claims at issue a broad construction.¹⁷⁰ A broad reading of the claims was then held to encompass the accused device, which the court characterized as "the direct offspring of Kitselman's thought. . . ."¹⁷¹ Following the grant of certiorari, the Supreme Court reversed. After a painstaking review of the other inventions in the field, it held that Kitselman's wire-weaving method was known to the art. In the Court's view, Kitselman had merely turned a known fence-making machine on its side and mounted it on a truck.¹⁷² That effort, along with other minor improvements, could not make Kitselman's invention a pioneer. According a narrow construction to the claims of the Kitselman patent, the Court held that they did not read upon the accused device.¹⁷³

The series of opinions in Kokomo Fence demonstrates that a determination of pioneer status can be of crucial importance in infringement determinations. Of equal interest, however, is the distinction between the approaches taken by the Seventh Circuit and the Supreme Court in the Kokomo Fence opinions. The circuit court emphasized the unique accomplishment of Kitselman's invention-the production of a workable fence in the field-and reasoned that often subtle changes to existing technologies may produce inventions with revolutionary effects.¹⁷⁴ The Supreme Court instead considered only the extent of technological advance of Kitselman's invention over the prior art. Contemporary cases have maintained an approach similar to the Supreme Courts when deciding whether an invention should be awarded with pioneer status.¹⁷⁵

In the context of the pioneer invention doctrine, courts honor technological advance above all else.¹⁷⁶ In implementing the doctrine, courts follow the Supreme Court's lead in Kokomo Fence and solely consider the place of the claimed invention in relation to prior technical knowledge. Those inventions that broadly advance the art receive broad protection. Other considerations regarding the worth of a particular development-such as the invention's affects on society-are irrelevant. The most striking feature of the pioneer invention doctrine is that by granting a broad scope of protection to only the most technically clever artifices, a court blinds itself to the social consequences of the technologies placed before it.¹⁷⁷ Thus, for example, a patented medical device with tremendous life-saving properties, which was nonetheless judged a marginal technological advance, would receive a narrow range of equivalents. In contrast, the pioneer invention doctrine would grant a broad reading of the claims to, say, an extraordinarily sophisticated device which quickly manufactures inexpensive handguns. Although this approach may appear unusual, not only the pioneer invention doctrine, but also the entire structure of the patent system reflects a similar design: the chief bar to patentability, the requirement of nonobviousness, is primarily a measure of technological accomplishment.¹⁷⁸ While secondary considerations supplement the nonobviousness test, they are commercial in orientation, reflecting marketplace success rather than social benefit.¹⁷⁹

A review of early American case law indicates that the patent law has not always had such a narrow focus on technological advance to the exclusion of considerations of social benefit. In the patent law's formative years, courts considered the social impact of technology when determining the invention's utility.¹⁸⁰ The most famous formulation of the patent statute's utility requirement belongs to Justice Story, a prominent figure in the early development of the patent law¹⁸¹ who remains of considerable interest to students of patent law.¹⁸² Story noted that an invention would be considered statutorily "useful" if it could be used beneficially in society, but not if it were frivolous, insignificant, or detrimental to the morals, health, or good order of society.¹⁸³ Inventions designed, for example, "to poison people, or to promote debauchery, or to facilitate private assassination" would therefore be ineligible for patent protection.¹⁸⁴ As the patent law matured, however, the utility requirement became increasingly diluted. Subsequent case law concerning utility primarily considered whether gambling devices or inventions designed for fraudulent purposes could receive patent protection.¹⁸⁵ Today, the requirement that an invention be "useful" essentially presents no bar to patentability for mechanical patents. So long as an invention is nonfrivolous and presents more than a mere curiosity, the courts and PTO consider the utility requirement satisfied.¹⁸⁶

In the meantime, few have questioned whether patent grants for inventions as lethal as Gatling's machine gun,¹⁸⁷ as environmentally unsound as polystyrene-foam clamshell hamburger packaging,¹⁸⁸ or as rife with deleterious health consequences as a cigarette-making device¹⁸⁹ were beneficial to society or in keeping with sound patent policy. A fleeting trace of these notions is perhaps left in the Atomic Energy Act, which provides that "[n]o patent shall hereafter be granted for any invention or discovery which is useful solely in the utilization of special nuclear material or atomic energy in an atomic weapon."¹⁹⁰ Beyond this, however, neither the pioneer invention doctrine nor the patent law as a whole pays even a backward glance to the social consequences of the technologies it awards with exclusive rights.

Alternatively, patent law may recognize that rather than being a mere neutral means, technology often serves as a transformative end unto itself.¹⁹² Few could doubt, for example, the tremendous impact of the automobile on modern American life. The automobile is the ultimate product of an immense industry, the motivation for vast civil engineering projects, the cause of demographic shifts, a source of tension among international trading partners, and a liberalizing influence on sexual mores. Recognition of the automobile as a distinct, neutral, nonhuman activity is, for many technological thinkers, an unrealistic proposition.¹⁹³

We may decide that, although technology is not a neutral tool, patent law should nevertheless view it as such. Under this view, the grant of patents to individual inventions, and the award of pioneer status to the most technologically accomplished, is held to benefit society in a more ecumenical sense: the patent law seeks to advance the whole of human knowledge,¹⁹⁴ rather than act as some sort of technological gatekeeper.¹⁹⁵ Cultural, economic, political and other forces then select those patented inventions best fit to be commercialized and disseminated within the social fabric.¹⁹⁶

In so doing, the patent law would, to some extent, follow the tradition of copyright law, which refuses to judge the artistic merits of the works it considers.¹⁹⁷ But even recognizing that the patent law has loftier aspirations, to some degree judging the technical skill of patent applicants, many might consider it a poor instrument for discriminating among inventions. As a property right, a patent ultimately grants its owner only the right to exclude others from making, using or selling an invention, rather than the positive right to employ the invention.¹⁹⁸

Taken to its logical limits, though, such a view raises questions about why our society suffers "the embarrassment of an exclusive patent" in the first instance.¹⁹⁹ If patent law has such scant impact on the progress of individual inventions, then we may be well advised to abandon it, particularly in light of repeated concessions that whether the patent system helps or hinders the United States economy is unknown on an empirical level.²⁰⁰ As advocates of the patent system note, however, those technologies blessed with the imprimatur of the PTO are far more likely to make their way to the market than those that are not. For those without the resources to develop and market their own invention, the possession of a patent is crucial to attracting private investment or government grants.²⁰¹ Similarly, those entities with sufficient resources to develop a technology-typically large corporations-are also far more likely to do so if patent protection is available.²⁰² The capacity of the patent system to promote some inventions over others cannot be denied.

Patent law's refusal to question whether technology has a moral component may represent an even more fundamental passivity. Under this stance, the pioneer invention doctrine does not look beyond technology because it essentially recognizes that any other inquiry into the worth of a particular invention would be futile. This viewpoint suggests a belief in technological inevitability, which comports with the views of contemporary technological dystopians, including Jacques Ellul, Lewis Mumford and Theodore Roszak.²⁰³ Under this view, technological progress is quantifiable, consistent, and inescapable.²⁰⁴ Further, as inventions technically superior to those in the prior art appear, their adoption by society is inevitable.²⁰⁵ Thus, society is unable to halt the unavoidable march of technology, which "reigns alone, a blind force and more clear-sighted than the best human intelligence."²⁰⁶ Patent law serves as merely the gentlest of prods in an era of "autonomous technology," which progresses according to its own needs, rather than those of humankind.²⁰⁷

Although such a view may seem extreme, it is supported by considerable economic literature aimed at identifying, illustrating and predicting technological growth. Some theories describe a linear process of growth;²⁰⁸ others, a geometric progression;²⁰⁹ and still others, including those advanced by Joseph Schumpeter, a leading figure in the economics of technological change who continues to influence many patent scholars,²¹⁰ a cyclical pattern with long waves of industrialization.²¹¹ Relying upon such factors as energy efficiency, agricultural yields, the improving performance of various machines, and often patent statistics, these economic studies invariably show a steady, ceaseless pattern of technological progress. Such theories imply not just a steady stream of invention, of course, but their inevitable adoption by society.

One need not spend many hours leafing through the federal reporters to find the influence of the philosophy of technological inevitability in published patent decisions. One example is Judge Posner's opinion in Roberts v. Sears, Roebuck and Co., which concluded that the patent at issue was invalid for obviousness because the invention it disclosed "would have been made anyway, and soon."²¹² Underlying this position, of course, is the Spencerian conviction that fundamental economic forces render some measure of technological progress unavoidable.²¹³ Chief Justice Burger confirmed this notion of the relentless march of technology in Kewanee Oil Co. v. Bicron Corp.:

A theory of technological neutrality stands in ironic opposition to the theories of technology of early supporters of the patent system. Consider Jeremy Bentham, who reasoned that the availability of patent protection "cause[d] that to be produced which, had it not been for this security given to the fruits of industry, would not have been produced . . . ."²¹⁸ Few contemporary supporters of the patent system would go as far as Bentham did. Observers instead view the patent law as fulfilling lesser roles, such as encouraging research and development efforts²¹⁹ or channeling technological efforts toward inventions society considers useful.²²⁰ Given the patent law's vitiated utility requirement, this last goal must also be considered extremely suspect.

"Every art and every inquiry, and similarly every action and pursuit, is thought to aim at some good . . . ."²²¹ With these words Aristotle opened his Nicomachean Ethics, a work in which he attempted to describe the best way of life for humanity. Aristotle reasoned that the best good for humankind is happiness, and that the best way to achieve happiness is through thought and reason.²²² Therefore, to Aristotle, a life of theoretical contemplation presents the highest good: it is desirable in and of itself, a source of happiness independent of the activities of others, and something we can perform continuously.²²³ Aristotle thus subordinated pragmatic activity to the theoretical to an extraordinary degree. The famous commentary of St. Thomas Aquinas, perhaps the supreme interpreter of Aristotle, summarizes this position well:

Aristotle viewed technological pursuits as a lower sort of endeavor beneath philosophical and political activity. Aristotle recognized that technology is necessary to humankind, as a source of sustenance and shelter; but it is only necessary.²²⁶ It is thus not inherently a value-laden activity, instead being only a means to accomplish activities which express values. To Aristotle, then, the worth of technology could only be judged by the use to which it is put; it has no other meaning.

Given the pragmatism of Aristotle's writings, his view on technology is somewhat surprising and therefore perhaps particularly profound. Indeed, this same individual, who practiced the medical arts, propounded an early version of empiricism,²²⁷ and gathered everything from zoological specimens to state constitutions in the grove of the Lyceum, nonetheless found practical pursuits to be merely the understanding of the "variable, contingent and relative," and therefore less worthy.²²⁸ Aristotle's works include detailed treatises on how to construct an argument, or write a poem or speech, but little on the creation of anything that would be described today as technological.²²⁹ And although Aristotle often expresses admiration for the works of nature in his writings, his regard for the products of human artificers was undoubtedly far less.²³⁰

Aristotle's treatment of technology, which he groups with a number of other disciplines like economics and military science, cannot said to be a thorough one. Nonetheless, even this brief review of Aristotle's view on technology indicates the stress he places upon technology's neutrality. That such a conception of technology is not the product of casual reasoning, but instead has roots in fundamental Western thought, is perhaps the most significant insight into the structure of patent law that we can gain from his works.

As this Article will argue, however, the position of technological neutrality is overly simplistic.²³¹ It is perhaps far more fitting for ancient Greek society than contemporary life. In stark contrast to a modern world where the reach of technology seemingly has no visible boundaries, the Greeks were notorious technological underachievers.²³² Numerous aspects of their society showed little regard for technologists; many city-states, for example, denied artisans and technicians the opportunity to become citizens. Of course, what we know of Greek thought comes primarily from their writers, not their technologists. In this vein, observers such as Samuel Florman find little wonder that philosophers like Aristotle recommend the pursuit of a philosophical way of life.²³³ Florman finds alternative conceptions in Greek thought in sources such as Homer, noting his admiration of technical skill and the material world of human-made objects.²³⁴

After the early works of Aristotle, philosophy had little to offer students of technology until the nineteenth century, when Karl Marx developed a body of technological thought.

At first blush, Marx seems an extremely unlikely source of insights into patent law. His ceaseless call for the abolition of private property leaves little doubt as to whether he would support exclusive rights to individual inventors.²³⁵ Ignoring the profound emphasis Marx placed upon technology in his thought, however, would be extremely short-sighted in reviewing the philosophical underpinnings of patent law. In its necessarily but brutally brief review of Marxian philosophy, this Article will focus upon Marx's technological views and compare them with the values underpinning patent law.

Most readers are undoubtedly familiar with the primary elements of Marx's works. Marx emphasized humans as material beings, compelled by our nature to meet organic demands for things like food and shelter. The pressure of these needs is, to Marx, our motivating force, causing humanity to enter into conscious production; that is its unique trait.²³⁶ Historically, productive forces may be arranged into five so-called "modes of production"-Asiatic, ancient, feudal, capitalist and socialist-each period marked by an essential technology directed towards the fulfillment of human needs. Marx viewed the capitalist mode of production as dominated by the factory system, and accompanied by such institutions as private property, market production and the use of money.

The technologies that comprise the material modes of production play a central role in Marxian thought.²³⁷ Marx conceived modes of production as the ultimate environment in which humankind exists. In a Marxian sense, individuals define themselves through their interaction with their environment-their mode of production-and with each other. Thus, technology embodies what humanity is in a quite fundamental way.²³⁸

Marx asserted that although the modes of production have changed throughout history, they share the common feature of control by a few, to the detriment of the masses. As individuals grow increasingly dependent upon others and alienated from their own existence, their loss is reflected in greater society through the formation of competing classes. This process reaches its heights in capitalist societies, where increasingly specialized laborers become less than human, achieving only a fraction of what is possible for them and coming to dread the labor that should serve as a source of satisfaction to them. Marx predicted that these destructive aspects of capitalism are the key to its own collapse.²³⁹ In its place would rise a socialist-communist society marked by cooperation and rational planning. Humans will then cease to live at each other's expense, and, with the help of technology designed to lessen the burdens of workers, become masters of themselves and their society.²⁴⁰

Although the extraordinary wealth of Marx's thought has inspired countless interpretations, our review of his thought can fortunately be more limited to his technological observations. As Joseph Schumpeter has suggested, the traditional view of Marxian technological theory encompasses both technological determinism and inevitability.²⁴¹ This reading of Marx first holds that technological development is unavoidable. As stated in the Grundrisse:

Scholarly debate continues, however, on whether the entirety of Marx's thought reflects both determinism and inevitability. Indeed, other portions of his works suggest diametrically opposed views of technology. As Marx repeatedly noted, "men make their own history" and are not captive to external forces such as autonomous technology.²⁴⁶ Others further excuse Marx for his various statements of technological determinism, considering them to be misinterpreted aphorisms or to have arisen in the heat of debate.²⁴⁷ Additional passages from Marx suggest that technological progress is not immune to social forces. Marx indicated that "it would be possible to write quite a history of inventions, made since 1830, for the sole purpose of supplying capital with weapons against the revolts of the working class" and that science "is the most powerful weapon for repressing strikes, those periodical revolts of the working class against the autocracy of capital[.]"²⁴⁸ The familiar opening of the Communist Manifesto also suggests that technology need not be the sole determinant of social changes;²⁴⁹ to similar effect is language buried in a footnote from Capital.²⁵⁰ The simple expedient of providing a broader reading to the term "modes of production" to encompass not simply technology, but also labor power as well as human skill and experience, is itself a potent counter argument to the traditional reading of Marxian technological philosophy.²⁵¹

Even if one accepts the traditional reading of Marx's views on technology as deterministic and inevitable, any nexus between Marx and patent law doctrines may seem quite attenuated. Yet the founder of Marxism was also among the intellectual forebears of the American technological utopianism movement, which shifted utopian hopes for America from Puritanical notions of divine providence to a more pragmatic, technologically based vision of a better society.²⁵² By the late nineteenth century, millions of Americans subscribed to a belief in the inevitability of technological progress and its social effects.²⁵³ The rule of law developed during that era reflects these beliefs. Indeed, the correlation between the decline in the vigor of the patent system²⁵⁴ and growing social distrust in technology is quite noticeable. A lesser, but still notable, nexus can also be drawn between Marx and patent law as one of his keenest observers, Joseph Schumpeter,²⁵⁵ strongly influenced patent law scholarship.²⁵⁶

The traditional reading of Marx's position is now rendered too extreme to be acceptable.²⁵⁷ Marx's determinist views of technology must be seen as rather disappointing. The emphasis Marx ultimately placed upon class struggle resulted in a movement away from his focus on man as a material, observable being. Thus, Marx stepped away from an analysis of the everyday world which makes up man's environment, and thus from technology as well.²⁵⁸

Legal scholars have frequently, and productively, borrowed from philosophical studies as a means of considering the various regimes of intellectual property.²⁵⁹ In doing so, they have stressed intellectual property regimes as systems of property. Certainly the foundational philosophic text for these studies is Locke's Second Treatise,²⁶⁰ which has recently received several exhaustive treatments. A second source lies in the works of Hegel, who discussed intellectual property laws in his most important political text, The Philosophy of Right.²⁶¹

The crux of Locke's celebrated argument concerning property is that divine authority created the world as a universal common, in which all individuals possessed an equal right.²⁶² An exception to this rule lies in the person of each individual, over which each individual enjoys a property right.²⁶³ Not only is an individual's person his own, but "the labor of his body and the work of his hands, we may say, are properly his," as the immediate extension of his person.²⁶⁴ A significant condition qualifies this labor-based property right: whenever an individual removes something from the common, there must remain "enough and as good left in common for others."²⁶⁵ Applied to the production of technological ideas, Locke's labor theory of property provides a compelling rationale for the patent system.²⁶⁶

In contrast, Hegel reasoned that property results from the expression of individual will.²⁶⁷ To Hegel, personality and other aspects of human existence are due to the will's continuous effort to impose itself upon the world.²⁶⁸ Hegel recognized that the interaction of human will with the external world occurs in part through the occupation and embodiment of external, enduring objects, which society recognizes as property.²⁶⁹ Importantly for students of intellectual property, however, Hegel realized that physical objects need not be the only subject of property protection; creative expression and the embodiment of ideas are also worthy of protection through a system of exclusive rights.²⁷⁰ As expressed in intellectual property schemes such as patent protection, Hegelian notions of property provide a suitable mechanism for self-actualization, personal expression, and recognition of the dignity and worth of an individual person.²⁷¹

Although a rather extensive literature applies Lockean and Hegelian thought to our system of patents and other intellectual property rights, scant comparison of other philosophical studies to the patent system has occurred. Surprisingly enough, thinkers such as Aristotle, Karl Marx and Martin Heidegger,²⁷² who assigned technology a role in their thought from peripheral to central, have received little attention in relation to the patent law. This absence is unexpected but not inexplicable. Theories of property, particularly that espoused by Locke, are fundamental to our constitutional order, of broad application to many legal settings, and well understood by a wide audience.²⁷³ In contrast, the philosophy of technology presents a nascent field of study. One noted scientific philosopher remarked that the philosophy of technology "is still immature and uncertain of its very object, and does not exploit the entire scope of its own possibilities. That it is an underdeveloped branch of scholarship is suggested by the fact that so far no major philosopher has made it his central concern or written an important monograph about it."²⁷⁴ Although these claims are certainly overstated, few would doubt that philosophers have come late to technology.²⁷⁵

Additionally, many scholars may not wish to confine themselves to the patent law, instead considering the full spectrum of intellectual property doctrines. As the systems of copyright, trademark, trade secret and unfair competition law do not embrace technology to the extent the patent law does, critical thinking regarding technology may be relevant only at the peripheries of these other intellectual property regimes.²⁷⁶ The possibility of a philosophy of technology is also simply one that has not occurred to many individuals. Indeed, such a philosophy may seem almost incongruous, as the workings of technology appear extraordinarily far removed from the abstract contemplation that traditionally comprises philosophical inquiry. Samuel Florman notes the common perception that:

In contrast to Aristotle and Marx, Heidegger provides a normative basis for technological understanding, which patent law scholars should study more closely. Heidegger's goal was to rejuvenate Western thought by recovering a clearer, more vital sense of existence, or being.²⁸⁷ To Heidegger, concepts central to Western thought such as Platonic Forms, Cartesian mind-body dualism, and Kantian noumena, were the results of derivative, theoretical thinking too far removed from the physical world.²⁸⁸ Heidegger instead offered a sort of phenomenology: that our most fundamental sense of things comes not from our relationship with objects of knowledge, but with those instrumental objects that fit naturally into our ordinary lives.²⁸⁹

Heidegger's most famous example involves the simple use of a hammer.²⁹⁰ The wielder of the hammer-say, a cobbler in her workshop-takes up her tool within an integrated context of interrelated activities and objects of which the hammer is a part. Other elements of this totality, including tools, nails, materials which make up a shoe, and even the crafting of the product, are assigned a contextual meaning through their interrelationship. The hammer thus must be seen as relative to a context, not as an object in itself. An awareness of this relationship becomes more pronounced as the hammer is used, as the tool itself withdraws from the cobbler's direct experience of hammering, and becomes instead the means of the hammering experience itself.²⁹¹ Importantly for Heidegger's argument, skilled use of the hammer implies an understanding which is practical, not conceptual.²⁹² To Heidegger, this concealed working of pragmatic things defines their being in the physical world.²⁹³

It is in this sense that Heidegger writes: "Technology is therefore no mere means. Technology is a way of revealing."²⁹⁴ The essence of technology is thus not merely a mode of production, transportation, or other task, nor can it be described as itself technological.²⁹⁵ It is instead a fundamental way in which we uncover the presence of things; a "clearing" in which specific forms of human existence, along with the environment of made things, become visible in their reciprocal interdependence.²⁹⁶ According to Heidegger, then, being is a temporal event, a "movement into presence" in which both humans and things are appropriated into intelligibility, and the world objectified.²⁹⁷

Paradoxically, we are perhaps most aware of the network of relations in which tools are embedded when something goes awry, such as when a tool is damaged.²⁹⁸ We then obtain a rudimentary understanding of the complex functional relationships of which the tool was a part. If the breakdown persists, however, individual technologies become increasingly noticeable only in their dysfunction.²⁹⁹ Individuals then begin to believe the tool is without meaning, its usefulness merely determined by human desires and interests.

But such an understanding-viewing the world as an instrumental tool fit for the disposal of humanity-is inauthentic. Among Heidegger's theses is that Western society reflects this mistaken understanding of being, leading to pragmatic and deleterious consequences: the spread of apocalyptic weaponry, environmental devastation, and ultimately nihilism.³⁰⁰ Heidegger considers this conception of being as itself a technological one. Thus, in humanity's technological encounter with the world, the world is seen as available for whatever use we care to make of it.³⁰¹ The Rhine River itself becomes merely another resource to be tapped:

Heidegger is no Luddite, however; he never took the route of so many contemporary observers, who naively yearn for a simpler society based upon idealized views of earlier, less technologically sophisticated eras.³⁰⁸ He realized that "[i]t would be foolish to attack technology blindly. . . . We depend on technical devices; they even challenge us to ever greater advances."³⁰⁹ Instead, Heidegger's works suggest two solutions for curbing the "tide of technological revolution."

First, Heidegger teaches the concept of releasement, of stepping beyond a purely instrumental conception of technology.³¹⁰ Heidegger argues that we must return to meditative, rather than calculative, thinking;³¹¹ one commentator summarizes Heidegger's position as the belief that "[i]f more people were to question, and to live with their questions, then technological thinking might be slowed down and the saving power fostered."³¹² Heidegger thus argues for a shift of paradigms, with greater emphasis placed on the humanizing character of insignificant things-those marginal cultural practices we celebrate for the precise reason that they resist efficiency.³¹³ Thus "[w]e can affirm the unavoidable use of technical devices, and also deny them the right to dominate us, and so to warp, confuse, and lay waste our nature."³¹⁴

Heidegger also suggests the revival of technology as what the Greeks called techne. "Techne is the name not only for the activities and skills of the craftsman, but also for the arts of the mind and the fine arts. Techne belongs to bringing forth . . . ."³¹⁵ We can thus enrich our understanding of technological artifacts as part of the created world, appreciating them without reducing them to mere instruments.³¹⁶ Heidegger writes that "when we once open ourselves expressly to the essence of technology, we find ourselves unexpectedly taken into a freeing claim."³¹⁷ Thus, we will be grateful for technology as we realize it is a primary source through which we can come to understand our lived existence. In this, Heidegger refers to the environment of human artifacts within which we interact for virtually every moment of our lives.³¹⁸ Once we attain an understanding of being which embraces technology, then we can see that what is most important to us is not amenable to efficient technological enhancement.³¹⁹

Application of Heidegger's teachings to patent law does not require an extraordinary leap of reasoning. The fundamental technological value expressed in the patent system suffers from the symptom he most decries: a nearsighted view of artifacts, processes and other technologies as simple tools. Seemingly unaware of the diverse cultural factors influencing technological advance, patent law leaves little room for review of policies and nontechnical concerns. Instead, notions of technological neutrality and inevitability prevail, but, as one observer realizes, "if Martin Heidegger is correct, the belief in the neutrality and heteronomy of technology may be the most insidious way of being delivered over to it."³²⁰

The question remains, however, whether Heidegger was indeed correct. Many of his followers accept the not uncommon view that humankind currently faces some sort of technologically-oriented crisis, a crisis so potent that arguments seeking changes in technological norms are welcome. Others recognize that Heidegger's thought best comports with a perceptive analysis of historical experience and persuasively displays the inadequacies of popular conceptions of technology as rooted in Western thought. Fortunately, the propriety of his approach need not be resolved here. One does not have to accept all of Heidegger's claims to appreciate his provocative arguments, and to consider whether legal values regarding technology deserve reevaluation.

At first blush, the snowmobile appears to be a technologically neutral invention. Whether a snowmobile is used for cross-country racing in Michigan, reindeer herding in Finland, fox trapping on Canada's Banks Island, oil prospecting in Alaska, or any of a number of other purposes, the engineering principles are the same. It appears to be a neutral tool, adopted by a number of differing societies for their own objectives.

A more thorough examination of history, however, demonstrates that the introduction of the snowmobile into various socio-economic systems resulted in sometimes remarkable shifts within those systems. Rather than being a mere instrument to serve existing social goals, the snowmobile altered those goals themselves. As with the automobile, a host of human consequences attended the introduction of the snowmobile to North America. Ownership of a snowmobile, and the skilled ability to use it, became a status symbol.³²⁴ The snowmobile also brought about tourist trails, driving schools, and organized races.³²⁵ As its users found themselves increasingly dependent upon others to supply fuel and spare parts, the institution of snowmobiling caught the attention of legislatures, which enacted laws limiting the ecologically destructive uses of snowmobiles.³²⁶

Perhaps the most startling societal change caused by the introduction of the snowmobile was presented by Professor Partti J. Pelto in his classic study of the Skolt Lapps of northeastern Finland.³²⁷ The Skolts were a reindeer-herding people, using the animals to provide food, transportation, clothing and other needs.³²⁸ Following their exodus from Russia after World War II, the Skolts built a remarkably egalitarian society.³²⁹ Wealth varied little among individuals; the transported families even lived in identical, government-constructed cabins.³³⁰

Prior to the advent of the snowmobile, Skolt reindeer herding was a controlled, cyclical process.³³¹ As winter approached, the scattered, free-roaming reindeer would gather into herds for breeding and to obtain protection from the elements. At this time, ski-clad Skolt herders would gather to lead the reindeer into corrals. This was ordinarily accomplished by a single skier leading a kilometer-long, single file of reindeer into a corral, with herdsmen and dogs set along the flanks to ensure an orderly procession. The Skolts would then divide the animals based upon individual ownership, as indicated by ear markings. Owners would then butcher or otherwise process individual reindeer. Following calving in the spring, unidentified animals were marked and the herds set loose.

The situation dramatically changed when the Skolts first purchased snowmobiles in the early 1960s. Snowmobiles possessed extraordinary advantages in speed over traditional reindeer sleds, reducing trips once taking several days to a few hours.³³² The Skolts quickly applied the snowmobile to the task of reindeer herding, replacing ski-clad herders with snowmobile drivers.³³³ Given the high fuel costs of operating snowmobiles and the speeds of which they were capable, reindeer herding quickly devolved into a quick, frenzied process. The months-long, intensive herding practices of the past had produced relatively domesticated reindeer; but the loss of control associated with accelerated herding left the animals increasingly wild and difficult to gather. Further, herding became less of an interaction between herder and reindeer than a scene of frantic capture, as the reindeer were considerably frightened by the nose and smell of the snowmobiles. Due to the lack of domestication, as well as the deleterious effect of the roundups on calves and pregnant females, the Skolts gathered drastically smaller herds following their adoption of the snowmobile.

The snowmobile's effects upon Skolt society were significant and detrimental.³³⁴ The Skolts increasingly became dependent on cash and, in some cases, debt, in order to purchase snowmobiles, fuel and spare parts. Families began to leave herding due to insufficient resources and loss of control over the reindeer, often migrating to the south or becoming dependent upon government welfare programs. Further, Skolt society gradually experienced stratification. Ownership of the animals became concentrated among a few families, and the once uniform Skolt homes were augmented or replaced by the wealthy few.

This example is not intended to provide a nostalgic lament for the Skolt way of life as it existed thirty years ago, nor a sort of Luddite vision of the effects of technological change. Other factors impacted the shape of the Skolt society.³³⁵ But this example should demonstrate that a view of technology as a neutral tool is too narrow. Inventions such as the snowmobile present implicit values, beyond their technological sphere, which are susceptible to evaluation.

Another example of the non-neutrality of technology concerns the works of the well-known civil engineer Robert Moses.³³⁶ Among his many public projects were the parkways on Long Island, New York, which are marked by conspicuously low overpasses. Motivated by racial and social bias, Moses wished to keep the poor and racial minorities off the parkways, leaving them for the affluent owners of automobiles. He therefore designed the overpasses so that buses would be too tall to pass beneath them. Although Moses has long since passed on, his roads continue to shape life in New York, and stand as well as a monument to social inequality. Moses is hardly unique in designing cityscapes with social concerns in mind. Instead he reflects a tradition established by numerous other engineers, architects and city planners. Many would be surprised to learn that the lovely, broad avenues of Paris were designed to quell street fighting, or that American university officials in the 1970's requested that campuses feature broad plazas in order to restrain student demonstrations.³³⁷ Similarly, among Congress' motivations in promulgating the Americans with Disabilities Act³³⁸ was a recognition of the countless ways in which buildings, sidewalks, public transportation and other structures systematically discriminate against handicapped people.³³⁹

A final example of a non-neutral, value-laden technological advance is factory mechanization. Numerous studies have concluded that factory owners have encouraged research and development of technologies at least in part to increase management control over the workforce.³⁴⁰

The cultural effects of the snowmobile, calculated urban planning, and factory mechanization suggest that Friedrich Nietzsche's comments concerning the pursuit of science are particularly well applied to patentable technology:

At least until the fifteenth century, China was the technological equal of, if not superior to, the European powers. Many technologies considered fundamental to the rise of modern Europe-gunpowder, paper-making, printing and the magnetic compass-in fact owe their origins to Chinese inventors.³⁴⁵ By the sixteenth century, however, the technological balance had swung to Renaissance Europe. While technological advance continued at a breakneck pace in the West, such development in China proceeded more gradually or ceased. The technological disparity between Europe and China was highlighted in the First Anglo-Sino Conflict, better known as the Opium War.

By the close of the eighteenth century, Chinese society had developed a drug problem: in return for Chinese tea, the Chinese imported opium from the British. The British East India Company grew opium-a commodity Chinese consumers could not obtain domestically-on its Bengalese lands.³⁴⁶ As ever greater numbers of Chinese became addicted to opium, a lively drug trade developed. Strict control of foreign commerce by Chinese officials resulted in an impressive amount of smuggling.³⁴⁷

Determined to vindicate its own authority and limit the spread of opium addiction, the ruling Manchu regime heightened enforcement of prohibitions on opium trade that had been promulgated as early as 1729.³⁴⁸ By 1839, vigorous enforcement efforts included seizure of opium and detention of British importers.³⁴⁹

Of course, naval strength was the font of British power. China, a land empire with few coastal cities, was therefore extremely resistant to British military coercion. The inability of British ships to proceed up inland streams left the British with little choice but to accept the Chinese measures.³⁵⁰

The situation changed with the invention of the gunboat, a technology that would at last allow British forces to enter the Chinese interior. The gunboat was a steam-powered iron vessel, specially constructed to operate in shallow waters³⁵¹ and initially used for transportation throughout the British Empire.³⁵² After adding heavy armament and employing the boats to decisive advantage in the Anglo-Burmese War in the mid-1820s, the British considered the gunboat an important military asset.³⁵³

The arrival of the Nemesis, a 184-foot long, 29-foot wide, heavily armed gunboat, at last provided the British a means to negotiate China's inland rivers.³⁵⁴ In early 1841, a Nemesis-led gunboat fleet launched an expedition up the Pearl River towards Canton. Superior in every sense to the more primitive defenses available to the Chinese,³⁵⁵ the fleet decimated fortresses and warships at will. The next year, after the British fleet sailed up the Yangtze River and entered the Grand Canal, the Chinese government signed a peace treaty highly favorable to the British.³⁵⁶

Was the Opium War the result of technological inevitability? Left to face the gunboat, seemingly the certain result of technological advances in steamboats and artillery, the Chinese crumbled, helpless in the face of superior technology which they ultimately adopted themselves. Yet three centuries in the past, a relatively stable Chinese society had developed a core of technologies similar to that of Europe, and in the decades preceding the Opium War, the Chinese had grown quite familiar with the technologies of their European trading partners. Yet, at neither point did Chinese society adopt the supposedly inevitable march of technology. A common explanation is that some deficiency in Chinese society, for example, that the Chinese were overwhelmed by Confucian themes of cultural superiority and viewed Western technology with blinding suspicion, prevented such advances. Other historians attribute the technological defeat of the Chinese to a Manchu regime ill-suited to deal with foreign policy decisions, or to the pressures and distractions of provincial government.³⁵⁷

But another analysis considers the events surrounding the Opium War to represent a contrast between two societies which had made different technological choices. Western society was generally accepting of rapid technological advance, in keeping with the vast intellectual, social and political changes which marked Renaissance and post-Renaissance Europe. In contrast, Chinese society was relatively more stable. The highly trained officials of early nineteenth-century China undoubtedly recognized the superiority of British technologies, particularly in their military applications. Yet they preferred to risk defeat rather than adopt advances which would have fundamentally altered the centuries-old humanistic culture in which they held power.³⁵⁸

None of this is to say that the technological impact of gunboats was insignificant. Even historians of the Opium War hesitate, however, to declare technological advance as inevitable, and instead separate gunboat technology from the continuity of the period's cultural, social, temporal and commercial elements.³⁵⁹ Other examples of societal choices on whether to adopt or retain a particular technology could be cited: the rejection of firearms in seventeenth-century Japan, for example, or the disappearance of the canoe and bow and arrow from ancient Oceania.³⁶⁰ But lest one think such examples are confined to other places and times, a more contemporary illustration exists: the ill-fated Supersonic Transport (SST), a commercial aircraft designed to fly at supersonic speed.³⁶¹

In the late 1950s, major United States aircraft manufacturers began studying the feasibility of developing an SST. As Great Britain, France and the Soviet Union initiated state-sponsored SST programs, international prestige and leadership in world aviation technology increasingly became relevant to the United States' decision to also fund SST research. Ultimately, the Federal Aviation Agency was given enormous funding and a leadership role in the SST project. An attitude of extraordinary optimism, fueled by confident predictions, most notably by the Rand Corporation, that commercially feasible SSTs could be developed by about 1970, carried the day.³⁶² Experts indicated that SST technology was "inevitable"³⁶³ and the next step in a natural progression of technological advancement.³⁶⁴

The SST quickly became a topic of intense public concern. Those familiar with supersonic travel recognized that the sonic boom, an explosive, disruptive noise that is a consequence of travel at supersonic speeds, threatened to become part of everyday life near major airports. Studies also indicated that the SST would cause extensive damage to the upper atmosphere, leading to ozone depletion and increased incidence of skin cancer. The economic impact of the SST program further began to loom large in an era of rising fuel prices.³⁶⁵ Perhaps most importantly, the SST began to symbolize "big government acting in behalf of big business and unbridled technology without regard for the rights and well-being of ordinary citizens."³⁶⁶ In the face of considerable public protest, the project quickly unraveled. Congress, responding to an extraordinary grassroots lobbying effort, rejected the project in 1971.³⁶⁷

A concerned public demonstrated that the SST was not a neutral, necessary or inevitable advance.³⁶⁸ Careful evaluation of the environmental and economic consequences of the SST had prevailed over the supposedly inescapable forces leading to technological advance. Examples such as the Chinese non-adoption of the gunboat technology and the United States' rejection of SST research funding demonstrate that escalating technological advance is not inevitable. To the extent that patent law accepts the position that technological change is inevitable, its doctrines bear reconsideration.

If the pioneer invention doctrine's values of technological neutrality and inevitability are misplaced, then a reformulation of this doctrine rewarding inventions with broad technological protection is in order. An alternate conception of pioneer inventions is straightforward: rather than confining themselves to arguments about the technical aspects of an invention, the courts could also accept arguments on the perceived social consequences of a patent owner's claimed invention. Such an inquiry would allow for nontechnical arguments addressing the pioneer status of an invention. Only if a court judged an invention as a pioneer within this context would it award that patent's claims with generous infringement protection.

The possible factors that bear upon pioneer status are many, and judges should consider all the facts and circumstances surrounding a technology before labeling a particular invention a pioneer. One appropriate factor is the social impact of the invention independent of its advance over the prior art. If an invention broadly changes the way individuals accomplish a technical task, pioneer status may be appropriate even if its progress beyond existing technologies was subtle. The Sixth Circuit's decision in Deyerle v. Wright Mfg. Co.³⁷⁰ provides an apt example of how a new doctrine of pioneer inventions might have achieved a better result. The district court had held that the defendant infringed the claims of the asserted patent, which described a device for fixing fractures during hip surgery. After according the patent's claims a narrow construction as merely disclosing a small improvement in a crowded art, the Court of Appeals overturned the trial court's finding of infringement under the Doctrine of Equivalents. Given the appellate court's acknowledgment that the patented invention was the first to reduce immobilization periods for hip fracture patients from up to six months to as short as one week, however, a finding of pioneer status and a more liberal claim construction may have been more appropriate.

Courts should also turn to more general policy concerns in determining pioneer status. Numerous federal statutes, ranging from the Clean Air Act³⁷¹ to the National Mobile Home Construction and Safety Standards Act of 1974,³⁷² provide a strong indication of current federal regulatory policies and purposes in the area of technology. The compatibility of a given technology with the goals of these statutes, as well as apposite federal regulations-such as the Consumer Product Safety Rules³⁷³ or occupational health and safety standards-should be considered.³⁷⁴ Stark incongruity with these sources of law appears unlikely to be of recurring significance in pioneer invention cases, however, given the unremarkable fact that a technology is unlikely to be considered a pioneer in any sense of the term if it cannot be legally marketed. More useful may be statements of congressional findings and policy, which can further inform the pioneer invention inquiry.³⁷⁵

Another factor for the courts to consider, whether Congress has enacted apposite regulatory legislation or not, is evidence regarding the health, safety, environmental, energy, economic and social influences of a particular invention. The historical examples considered by this Article illustrate more specific elements which might bear upon pioneer status: courts should consider the direction of a particular invention towards a life-saving or lethal purpose; its generation of pollutants or other undesirable byproducts; its consumption of fuels and dependence upon local or external energy sources; its effect upon employment; and its role in the displacement or maintenance of traditional production methods that embody cultural values. These factors would relate to the impact of a given invention upon United States society, which is the ultimate assessment a court should make when determining whether an invention deserves the reward of broad intellectual property protection.

An approach towards pioneer inventions that does not limit itself to strictly technical concerns may present difficulties in comparison to the prevailing standard. Courts must be certain not to substitute mere commercial success for a more legitimate policy approach. The remarkable success of a particular invention may be due to elements such as extraordinary marketing efforts and technological fads,³⁷⁶ which may falsely suggest that an undeserving invention is worthy of an award of broad patent protection.³⁷⁷ Additionally, the limited patent term may, in some instances, present an inadequate period in which to assess the impact of an invention, despite the fast-moving pace of modern technology.³⁷⁸ Finally, although laypersons often view new products as a single technological entity, they typically comprise numerous inventions in the sense of patent law. The video cassette recorder, for example, embodied advances in magnetics, materials and electronics, each subject to multiple patents.³⁷⁹ Out of the many possible patent claims represented in a single product, selection of those eligible for a broad construction as pioneers may prove difficult.

The approach suggested by this Article would certainly cause a shuffling among inventions currently considered pioneers under patent law. When one looks beyond the mere technical cleverness of a particular artifact, many inventions currently considered marginal technical advances may be elevated to pioneer status, while current pioneers could be relegated to a less encompassing claim construction. Thus, inventions such as Kitselman's fence-making machine might well be considered pioneers.³⁸⁰ Similarly, under this approach courts would be unlikely to make similar declarations regarding inventions such as the machine guns of Lindner or Browning.³⁸¹ None of this is to suggest, however, that "there is no new thing under the sun."³⁸² The view that pioneering inventors have crafted, and will continue to craft revolutionary advances should not be rejected. No doubt exists that some inventions are more important, and more worthy of reward, than others. The important point is that we should pay heed to broader policy concerns when deciding which inventions we should reward with generous technological protection.

This argument is not a novel one; as previously noted, it has existed in some form since the beginning of the United States patent system in the utility requirement. Indeed, the suggestion of this Article may be seen as little more than a robust interpretation of Justice Story's utility standard in the pioneer invention context-limiting broad protection to those inventions "which may be applied to a beneficial use in society, in contradistinction to an invention injurious to the morals, health, or good order of society . . . ."³⁸³ Regrettably, the utility standard has become increasingly attenuated over the years,³⁸⁴ and, at least according to some commentators, was abolished by the 1966 Supreme Court decision, Brenner v. Manson.³⁸⁵

But perhaps we should reconsider commentators' interpretations of the Manson decision, and the utility requirement as well. In Manson, an inventor appealed from the PTO's rejection of his application for its failure to disclose a specific, known usefulness for his invention. His application described a chemical process for producing steroids although it did not provide evidence of a specific use for those steroids, but rather only a hypothetical utility based upon structural similarity to another chemical compound. The Court upheld the PTO rejection, indicating that an invention must produce "specific benefit . . . in currently available form"³⁸⁶ in order to be eligible for a patent. Writing for the Court, Justice Fortas was distinctly unimpressed with Justice Story's standard, indicating that:

The Court of Customs and Patent Appeals, predecessor court to the Federal Circuit, had occasion to consider, at least in passing, the possibility of a patent policy that steps beyond technical considerations in In re Hartop.³⁹⁰ Here, the PTO rejected for want of utility an application claiming an anesthetic that included certain acidic compounds, stating that the inventor had not demonstrated that these compounds were safe for human use. The court overturned the PTO's rejection, indicating that existing anesthetics possessed potentially dangerous side effects and that safety, particularly in the medical arts, was a relative matter. Stating that it "anticipated" arguments regarding congressional purpose with respect to the patent statute, the court went on to provide in dicta that:

Contemplation of Manson and Hartop, two cases concerning the utility requirement, leads to the obvious possibility that we should reconsider utility as well. If the pioneer invention doctrine should embrace nontechnical concerns, then a reinvigoration of the utility requirement for patentability, and thus for all inventions, may also seem appropriate.³⁹⁶ The reinstatement of this requirement leads to certain benefits, given the lengthy delays currently prevailing in patent prosecution. Notoriously overworked examiners must currently consider inventions clearly bereft of positive social worth, and even those which cannot be marketed due to law or regulation. Devotion of scarce examiner hours to such technologies presents a puzzling allocation of resources.

However, several important factors weighing against increases in prosecution efficiency indicate that maybe the current scope of the utility standard should not be expanded. The first factor is technological disclosure, one of the primary goals of a patent system.³⁹⁷ The technical community is interested in learning about inventions even if their present use does not improve on existing technologies or would not comport with public policy. Later technical developments or changes in social mores may make an invention far more useful, rendering it environmentally sound or allowing society to accept or neutralize its harmful side effects. Further, inventions with no currently known end uses could serve as a bridge to later, more socially beneficial technological developments.³⁹⁸ In contrast, concerns over disclosure do not play an independent role in the pioneer invention inquiry. As an inventor has already obtained a patent and is attempting to enforce it, the scope of protection of the claims becomes the primary concern.

A second factor is that an enhanced utility requirement might present considerable difficulties for patent applicants in relation to a purely technological patentability standard. Forecasting is as difficult with respect to technology as it is in other fields, and a requirement that patent applicants explain the possible impact of their inventions may simply present an impossibility. Consider the example of Thomas Edison, who thought his newly invented phonograph would best serve as a dictation machine. He paid far less heed to its use as a medium for music and initially resisted this use as demeaning to the technology.³⁹⁹ Again, however, arguments about forecasting carry less weight with respect to whether a court should designate a particular invention as a pioneer. By the time infringement litigation has commenced, the ability of patent owners to consider the nontechnological consequences of their inventions should be greatly enhanced.

Other concerns counsel against a broadly focused utility standard. For example, an assessment of an invention's societal impact draws far more from the social sciences than the technological arts in which the corps of PTO examiners received its training. The competence of an examiner to complete this inquiry during an ex parte patent prosecution therefore remains questionable. Extensive safety and performance testing requirements, which are today more typical of regulatory agencies than the PTO, would also be a time-consuming burden during prosecution. Additionally, in the absence of international agreement placing the utility requirement within a nontechnological domain, any lone jurisdiction adopting this approach would impose a particular liability to its domestic applicants in the current era of global patent harmonization.⁴⁰⁰

As even this brief review reveals, whether the utility requirement should also reflect broad social concerns raises thorny issues, implicating both the procedural limits of prosecution and the fundamental purposes of the patent system. Judicial experience with a similarly focused pioneer invention standard would be the best testing ground of the merits of a more broadly oriented patentability determination. If the historical analysis and critical thinking this Article has reviewed endure in this setting, experience should show that the law will enrich our understanding of technology by accepting it within its broadest human context, rather than merely within a narrowly focused celebration of technical skill.

A consideration of the pioneer invention doctrine suggests that the patent law has lost its way in a fundamental sense. The pioneer invention doctrine's moorings are unsteady: if its central premises of technological neutrality and inevitability are upset, then the focus of the patent law's reward structure seems significantly misaligned.

Few would doubt we live in an age uniquely marked by its technology. Nor does much debate persist over the role of patent law as one of the shapers of our nation's central technology policies. Indeed, the patent system is likely the technological program most accessible to each citizen, a remarkable trait in a society where crucial technological decisions are often claimed to fall to a ruling technocratic elite.⁴⁰¹ Astonishingly, however, all meaningful dialogue about the value of technology on a level beyond the technical has been stripped from patent law.

An alternative vision of the patent system suggests a radical new role for the PTO, the courts, or the Congress. Patent law could, and perhaps should, serve as a clear vehicle for technological policy making. We would be wise to question patent grants for inventions such as handguns, machines for processing chewing tobacco, and ozone-depleting spray canisters. At the least, courts should consider the social impact of patented technologies when they decide to elevate those technologies to pioneer status. Courts should also more broadly weigh the extraordinary problems of technological description underlying any written summary of an invention when reaching patent infringement decisions.

Hopefully, this Article has struck the reader as something more than a romantic reaction to the current literature on the pioneer invention problem, draped as these analyses are in the quantitative language of economics.⁴⁰² This Article has purposefully avoided an economic orientation, however, out of a belief that economic theories are particularly unsuited to determining how we should form our world.⁴⁰³ It has instead argued that the patent law should appreciate and reflect its own role in the shaping of society by technology. Considerations of technology as a philosophical concern can assist in this process of technological evaluation, which ought to be central to our patent system, with the potential to invigorate patent law scholarship and perhaps the regime of patents itself.