United States has persuaded many countries to follow its lead in using copyright protection for computer programs. Yet according to Pamela Samuelson (see Chapter 12), the details of just what copyright protects beyond exact copying of program code in the various national laws remain unclear. Some countries are also following the United States on the patentability of software, but again standards of patentability are unclear.
Sui generis approaches pose their own issues when they move to the international arena. In Chapter 14, Goldberg notes that the sui generis treatment of semiconductor chips in the United states has been difficult to project into the international arena, and he points out that, if copyright had been used, existing treaties could have been employed to secure international protection. In the absence of a treaty, the United States has sought to internationalize the Semiconductor Chip Protection Act of 1984 through reciprocity with countries that protect U.S. mask works on the same basis. Goldberg indicates that this "arm-twisting" approach has brought some positive results, but it may have engendered resentment among other countries that now hinders cooperation in multilateral efforts to harmonize worldwide protection of chip topography.
Small businesses pose special issues in IPR discussions because they are important sources of innovation in many rapidly moving fields and they have special needs with respect to IPRs. In biotechnology, for example, most of the major innovations have been made by small firms. The ability to get intellectual property protection for living organisms in the United States was a key factor in enabling new biotechnology firms to attract the investment necessary to grow and survive.
Some argue that the cost of IPR litigation often bars the use of the system by small companies; if they are able to—or must—use it, litigation diverts funds from research and innovation. Thus, it is argued that high litigation costs work against small businesses and hence new technologies. Although this may be more a result of the general character of U.S. litigation and not of IPRs in particular, the conditions surrounding the emergence of new technologies are probably conducive to high levels of IPR litigation. As Eugene Gordon shows in Chapter 15, when the economic stakes are high, there is more incentive for large firms to use IPRs to stifle small firms. Moreover, when a technology is new, the validity of IPRs may be uncertain and hence more likely to be litigated. Thus, it is important in designing IPRs for new technologies to consider their possible impact on small, innovative firms. It is also important to remember that solutions to IPR problems that require a long time may leave many failed start-up companies in their wake.