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Burk, Dan L.; Lemley, Mark A. --- "Tailoring Patents to Different Industries" [2011] ELECD 971; in Arezzo, Emanuela; Ghidini, Gustavo (eds), "Biotechnology and Software Patent Law" (Edward Elgar Publishing, 2011)

Book Title: Biotechnology and Software Patent Law

Editor(s): Arezzo, Emanuela; Ghidini, Gustavo

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781849800402

Section: Chapter 1

Section Title: Tailoring Patents to Different Industries

Author(s): Burk, Dan L.; Lemley, Mark A.

Number of pages: 31

Extract:

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 protec-
tion to all kinds of innovation.
Technology is anything but uniform, however, and it displays highly
diverse characteristics across different sectors. A wealth of empirical evi-
dence 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 indus-
tries 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 ...