something of a square peg in a sinkhole of uncertain dimensions” since “[n]owhere in
the substantial literature on innovation is there a statement that the United States
economy suffers from a lack of innovation in methods of doing business.” Raskind,
supra at 92-93. Instead, “the long history of U.S. business is one of innovation,
emulation, and innovation again. It also is a history of remarkable creativity and
success, all without business method patents until the past few years.” Smith, supra at
178; see also Sfekas, supra at 213 (“While innovation in business methods is a good
thing, it is likely that there would be the same level of innovation even without patents
on [such methods].”).
Business innovations, by their very nature, provide a competitive advantage and
thus generate their own incentives. See Xiang, supra at 813 (“A business entity
improves the way it does business in order to be more effective and efficient, to stay
ahead of [the] competition, and to make more profit.”). The rapid “growth of fast food
restaurants, self-service gasoline stations, quick oil change facilities . . . automatic teller
devices . . . and alternatives for long-distance telephone services” casts real doubt
about the need for the additional incentive of patent protection in the commercial realm.
Raskind, supra at 93.
Although patents are not a prerequisite to business innovation, they are of
undeniable importance in promoting technological advances. For example, the
pharmaceutical industry relies on patent protection in order to recoup the large sums it
invests to develop life-saving and life-enhancing drugs:
[T]he "fully loaded" cost of developing a single new pharmaceutical
molecule, taking it though laboratory and clinical trials, and securing FDA
approval for its marketing is today about $800 million (including the cost of
project failures). Furthermore, fewer than one in five drug candidates that
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