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cess open to outside criticism and lobbying (particularly by the firm or interest group that can point out an important missed issue).

These differences in timing and in opportunity for outside criticism are probably the important differences between the intellectually unsatisfying CONTU process and the more appealing WIPO expert pattern. CONTU was appointed in late July 1975 and first met in October of that year. Its first hearings were in May 1976, and its final report was filed in July 1978, three years after its creation.52 Certain of the important issues were raised in Commissioner Nimmer's concurrence and Commissioners Hersey's and Karpatkin's dissents;53 it is very plausible that the commission did not have adequate time to deal with the issues posed by these dissents. In contrast, the WIPO Committee of Experts, which published the results of its deliberations as it went along, met four times over the period November 1984 to October 1988 and may meet again.54 The critical transition, at which consideration went from analysis based heavily on the previous state of the law to discussion of the new hard issues, appears to have been in the staff work between the second session in February 1986 and the third session in July 1987.55 Thus, it took two years to identify these questions and to begin to deal with them; by that time, CONTU must have had to concentrate a significant portion of its attention on its final report.56

EVALUATION: THE RIGHTS-GRANTING PROCESS

Doctrinal changes are only part of the system's response; the operational performance of the system in terms of providing mechanisms for obtaining and enforcing intellectual property rights is just as important.

By way of introduction, one could hypothesize an intellectual property system's response to any technological perturbation. In the first instance, the system struggles with what rights to grant. If examination is needed as

52  

CONTU, supra at 3-8.

53  

Id. at 26-27, 27-37, and 37-38.

54  

Committee of Experts, supra.

55  

Compare Committee of Experts on Biotechnological Inventions and Industrial Property, Industrial Property Protection of Biotechnological Inventions; Report prepared by the International Bureau (prepared for the Second Session), WIPO BioT/CE/II/2 (November 5, 1985); with Committee of Experts on Biotechnological Inventions and Industrial Property, Industrial Property Protection of Biotechnological Inventions; Revised Report prepared by the International Bureau (prepared for the Third Session), WIPO BioT/CE/III/2 (April 8, 1987). The report of the Second Session reflects consideration of some of these issues. See Committee of Experts on Biotechnological Inventions and Industrial Property, Second Session, Report; Adopted by the Committee of Experts, WIPO BioT/CE/II/3 (February 7, 1986).

56  

The current Advisory Committee on Patent Law Reform has only two years from creation to final report.



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