In a recent article, Professor Rachel Sachs explores the idea of intermediate innovations. These innovations are technologies that continue to be improved over time. As an example, Sachs refers to pacemaker software that can be continuously updated after the device is implanted in a patient. Sachs explains that certain technology fields are more likely to experience intermediate innovation. This is important because
non-PTO actors, including both the Federal Circuit and other administrative agencies, may interpret patent statutes in ways that permit the law to be applied differently within different fields of technology.
Sach’s paper examines the policy levers that encourage innovation in the life sciences (FDA regulations) and asks whether these levers are suitable for encouraging intermediate innovation. The paper draws lessons from patent law, FDA law, and adaptive management theory to propose a framework for adapting existing laws to incentivize the creation and maintenance of intermediate innovation.