A Comparative Review of New Developments
- New Directions in Patent Law series
Edited by Emanuela Arezzo and Gustavo Ghidini
1. Tailoring patents to different industries* Dan L. Burk and Mark A. Lemley INTRODUCTION Patent law is our primary policy tool to promote innovation, encourage the development of new technologies, and increase the fund of human knowledge. To accomplish this end, patent statutes create a general set of legal rules that govern a wide variety of technologies.1 In theory, we have uniform national patent systems that provide technology-neutral protection to all kinds of innovation. Technology is anything but uniform, however, and it displays highly diverse characteristics across different sectors. A wealth of empirical evidence demonstrates deep structural differences in how industries innovate. There is no reason to assume that a unitary patent system will optimally encourage innovation in the wide range of diverse industries that it is expected to cover. This seeming paradox – a monolithic legal incentive for wildly disparate industries – is resolved by the realization that, despite the appearance of uniformity, patent law is actually as varied as the industries it seeks to foster. A closer examination of patent law demonstrates that it is unified only in concept. In practice the rules actually applied to different industries increasingly diverge. As a practical matter, it appears that although patent law is technology-neutral in theory, it is technology-specific in application. The differential application of patent standards to different industries correlates with a larger theoretical confusion in patent law. While most theorists agree on a general utilitarian framework of patent law – that is, they agree on the goals the patent statute is...
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