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produced overprotection. The CONTU proposals failed to identify many of the hard issues and thus led the nation too quickly to a commitment to the copyright model. Moreover, in the case count (noted above) of two volumes of the United States Patent Quarterly, only 4 (and arguably fewer) of the 183 patent cases involved biotechnology. In contrast, of the 59 copyright cases, 7 involved software and 3 involved networks.45 In short, the software area, in contrast to biotechnology, is in a state of substantive litigation chaos. Almost certainly, this reflects the doctrinal confusion in the area. Because of the close tie between software issues and network issues, one can expect the litigation chaos to extend to that area. Again, as for biotechnology, the EC processes appear to have been more effective in locating the difficult problems.

The Alternative: Sui Generis Approaches

Although the available examples skirt only the edges of the technologies examined here, sui generis approaches present a strikingly different picture. Two U.S. examples are available.

One is plant variety protection, the sui generis pattern for plant breeding.46 This pattern allows for a certificate of protection on a new variety; the necessary showings are much simpler than those for a regular patent and the expense of obtaining protection is far smaller. The rights gained through protection are also smaller: farmers can reuse their harvested crop as seed, and breeders can use protected materials in competitive breeding programs without infringing the certificate holder's rights. Nevertheless, the system has worked; it is one of the few forms of intellectual property protection that has been shown to increase innovation,47 and many firms in the traditional seed industry have urged use of this system for plants instead of the regular patent system. At the same time, there is forum shopping; some of the firms in the seed industry have attempted to obtain regular patents on materials that seem more appropriate to plant variety protection.48


The difference in proportions of biotechnology and software cases (not including network cases) has a chi square of 7.53 and is significant at better than a 1 percent level.


Plant Variety Protection Act of 1970 (7 U.S.C. sec. 3231 et seq.).


See L. Butler and B. Marion, The Impacts of Patent Protection on the U.S. Seed Industry and Public Plant Breeding, North Central Regional Research Publication 304 (September 1985); R. Perrin, K. Kunnings, and L. Ihnen, Some effects of the U.S. Plant Variety Protection Act of 1970 (August 1983).


See, e.g., Patent 4,812,600, issued March 14, 1989, on a Pioneer Hi-Bred International "inbred corn line PHK 29," and including a claim on use of the line as a hybrid parent. The plant variety system would appear more appropriate and provides comparable protection, 7 U.S.C. sec. 2541. Conceivably, the regular patent obtained in this case provides greater protection against reverse engineering or use of the material for breeding purposes—whether such greater protection should be available poses important policy issues.

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