Lemley’s response introduces the new term “sequential improvement.” This suggests to us that he has now abandoned many of his claims of “simultaneous invention.” The word ‘sequential’ does not occur a single time in his article. We agree with Lemley’s new description that invention and innovation are often sequential, building in a series of related but different inventions: it is a normal feature of development and does not require a 108 page and 260 footnote article to establish it. Nor does it have radical policy consequences for the patent system which is well-adapted to this feature of real invention. But Lemley’s recommended policy would deny patents to second comers who contribute the key missing ingredient that unlocks an entire field. To Lemley’s credit, he recognizes the benefits of patent races and that the patent system leads to more innovation. But if that is true, Lemley does not explain why the patent system that we actually have is broken. His proposal to deny patents on “the most important inventions” and not grant more patents seems to flow from unreliable scholarship rather than a precise, reliable diagnosis of a problem.
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