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A Method for Reforming the Patent System

Peter S. Menell
University of California, Berkeley - School of Law


January 2007

UC Berkeley Public Law Research Paper No. 958089

Abstract:     
The principal recent studies of patent reform (NAS (2004), FTC (2003), Jaffe and Lerner (2004)) contend that a uniform system of patent protection must (or should) be available for anything under the sun made by man based upon one or more of the following premises: (1) the Patent Act requires such breadth and uniformity of treatment; (2) discriminating against any particular field of technology would be undesirable; (3) discrimination among technologies would present insurmountable boundary problems and could easily be circumvented through clever patent drafting; and (4) interest group politics stand in the way of excluding any subject matter classes from patent law or reforming the patent law requirements, duration, defenses, or remedies for a particular subject matter class. As a result, these studies consider and recommend reforms that would apply to all fields of patentable subject matter (systemic reforms) and largely ignore reforms that would either bar particular classes of technology from patent protection (e.g., software, business method, genomic sequences) or afford different classes of patentable subject matter different requirements or remedies (categorical reforms). This article sets forth a method for evaluating and formulating patent policy that considers both systemic and categorical reforms and sketches out how that method could be applied to the current patent crisis.

Keywords: Patents, Intellectual Property, Economic Analaysis, Software, Business Methods

JEL Classifications: K39, O31, O34, O38

Working Paper Series

Date posted: January 22, 2007 ; Last revised: January 31, 2007

Suggested Citation

Menell, Peter S., A Method for Reforming the Patent System (January 2007). UC Berkeley Public Law Research Paper No. 958089. Available at SSRN: http://ssrn.com/abstract=958089


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Peter S. Menell (Contact Author)
University of California, Berkeley - School of Law ( email )
Boalt Hall
Berkeley, CA 94720-7200
United States
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