Papers presented by Steven Usselman since 2019

2020 Charlotte, North Carolina

"Courts as Collaborators: Ninth Circuit Patent Law and Western Boosterism"

Abstract:

This paper examines how the Ninth Circuit Court of Appeals sought to promote West Coast industrial development at the turn into the twentieth century. Drawing on transcripts, evidence, and opinions from all 150 patent cases heard by the appeals court from its creation in 1890 through 1925, the paper reveals how judges consistently favored local interests over those from outside the circuit. While upholding the patent rights of innovative West Coast firms, judges frequently absolved West Coast consumers and manufacturers from alleged infringement of patents held by Easterners and other outsiders. The regional bias in Ninth Circuit patent law persisted through the First World War. It diminished thereafter as a new generation of appeals judges, taking its cues from newly installed Chief Justice William Howard Taft, sought to bring Ninth Circuit rulings into conformance with national standards. My research makes novel contributions to our understanding of how patent law functioned in the era of corporate ascendance. As with recent scholarship on antitrust, it reveals how the transition to a national market dominated by large private and public administrative institutions was more gradual than is often presumed. Even the patent system, established under the federal constitution and administered in the federal courts, exhibited a strong regional flavor, as circuit judges exercised considerable autonomy. For the purposes of this conference and its theme of collaboration, my talk will highlight the ways in which the appeals court and its handful of judges served as active collaborators in an agenda of regional development. Business communities along the Pacific Coast, including small cohorts of patent lawyers, came to understand that the appeals courtrooms operated as forums for structuring innovation, enterprise, and competition in their region.

Keywords: