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NEED FOR POLICY ANALYSIS

Thoughtful study and analysis can help in the process of adapting IPR systems to new technologies. Barton, in Chapter 11, suggests several instances in which analysis of the economic and innovation incentives of IPR laws and alternatives is needed—for example, when opposing doctrines are at a standoff, as in the controversy over whether a patent should extend to the progeny of patented life form. He also argues that identification of the point at which a gene becomes patentable should be subject to thoughtful analysis before decisions are made on the patenting of genome sequences. Similarly, in Chapter 12, Samuelson suggests that a better understanding of the nature of the innovation process in the software industry and the conditions that have promoted progress in that industry could provide a basis for policy decisions on software patenting.

Barton, in his examination in Chapter 11 of different approaches to adapting IPRs to new technologies, concludes that the European process for adapting IPRs to biotechnology, which involved standing study groups, was more effective at defining critical issues and subjecting them to debate than was the U.S. process, which involved primarily the courts and the Patent and Trademark Office. The keys to the European success were that repeated expert meetings produced substantive proposals that were then subjected to external criticism by all affected parties and the study groups were given enough time for staff work to help identify the new, "hard" issues.

ORGANIZATION OF THE SECTION

The chapters in this section discuss the special challenges to IPRs raised by new technologies and how the intellectual property system has adapted to those challenges. In Chapter 11, Barton evaluates the effectiveness of the IPR adaptation process in the case of three new technologies: biotechnology, computer programs, and integrated information networks. Barton suggests that routinized processes for the reform of IPR law are needed to deal with new technologies and that those processes should be international. He calls specifically for standing study and reform groups with an international composition to consider the issues and suggest appropriate responses on an ongoing basis.

In Chapter 12, Pamela Samuelson provides a detailed case study of the adaptation of intellectual property law to computer programs. After a historical review, she discusses the current legal approaches to protecting computer programs and the controversies surrounding the appropriate protection for the functional, as opposed to the written, aspects of computer programs. Samuelson argues that computer programs directly challenge existing IPR paradigms, and she expresses concern that attempts to protect computer



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