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Global Dimensions of Intellectual Property Rights in Science and Technology
cannot be filled by stretching these paradigms. Solving this problem does not necessarily lead to a plethora of sui generis laws; rather a single law could be developed to deal with this type of innovation.
Members of the audience clearly recognized that the sui generis issue is highly political. They also recognized that the passage of sui generis laws is likely to increase the level of IPR litigation for some time until the new legal issues and questions are settled. Nonetheless there seemed to be considerable opinion that new proposals for IPRs should be examined and that such examination should be conducted with scientific objectivity and impartiality.
A key question in the consideration of alternatives to current IPR forms is whether the current IPR system handles new technology properly. On the one hand, the current system was criticized on the grounds that it creates fuzziness in interpreting the laws. On the other hand, it was suggested that any attempt to define technologies crisply in IPR laws would fail because new technologies typically evolve more rapidly than the intellectual property system is capable of accommodating.
The optical fiber patent dispute between Corning Glass and Sumitomo (described in Chapter 9 by George McKinney) was discussed as an example of the debate over the adequacy of the current IPR system in dealing with new technology. In the opinion of one knowledgeable observer, Corning's optical fiber patent ran into trouble in Japan over a problem of language. This person thought that the invention was not described properly in the patent specification. Another view was also expressed, namely, that the Corning dispute is precisely the type of situation that exemplifies the failure of the system. In this view, if a team of qualified lawyers cannot describe a major invention in a manner that is satisfactory to patent authorities, it is clearly a failing of the patent system.
Another issue raised in the discussion was whether ''use-it-or-lose-it" laws should apply more generally than they currently do. Unlike in some countries, U.S. patent law generally does not require the owner of an intellectual property right to exercise that right through manufacturing. However, U.S. law requires universities and not-for-profit research institutions that obtain IPRs stemming from government-funded R&D to exercise those rights within a certain period of time or risk the government taking them away. One discussant noted that the rationale for this provision is to promote the rapid diffusion of the benefits of government-sponsored R&D to the public at large. The point was also made, however, that manufacturing is not the only economically valuable use of patents. A corporation's use of patents for freedom of action and for access to other advances in technology—through cross-licensing, for example—is very important to that corporation. For this reason, it could be inappropriate and perhaps counterproductive to require firms to manufacture using their intellectual property.