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delay (which is especially significant in biotechnology where a number of firms have been pursuing the same product)62 but also errors. Almost every expert has a story of patents in new areas that were almost certainly granted only because the examiner was not really familiar with the state of the art in the technology or because there had not yet evolved a data base within which a search could be conducted.63 These patents can severely complicate the economic development of the relevant field, although it is possible for a sensitive court to choose not to enforce them. Nevertheless, the overall evaluation of the rights-granting process has to be relatively favorable.

EVALUATION: THE RIGHTS-ENFORCING PROCESS

Intellectual property rights are meaningless unless enforced (and for software copyright, where the grant of rights is essentially automatic, enforcement is the only context in which litigation comes to the surface). Enforcement is, in the first instance, a litigation issue, but litigation is so expensive that its economics shapes the effective scope of intellectual property rights. A patent that its holder cannot afford to defend is worthless; likewise, a patent claim can be significantly stretched against a firm unable to afford defensive litigation. Equally important, intellectual property licenses—whose pattern differs radically from industry to industry—dramatically shape the real-world impact of these rights.

Judicial Enforcement

Patent litigation is extremely expensive; rumor suggests a cost of $0.5 million per claim litigated per side. There is little reason to anticipate a significantly different number for copyright, save perhaps for the possibility that some of the disputes are less fact intensive and more law intensive. (The costs of fact discovery and proof are especially high.) This is a nearly absolute bar to use of the system by small firms: where they must use the system, as in the biotechnology industry whose pharmaceutical products are

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There are sectors in which patentees would prefer delays in patent issuance because the market is growing faster than the interest rate so that a later monopoly is more valuable than an earlier one. This might even be true of biotechnology—except for the facts that development costs are so large, that development takes as long as the patent application processing time, and that these ongoing expenditures will be wasted if a competitor gains the patent rights.

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''Practically once a month, the nation's computer networks are abuzz with news of another patent issued on a fundamental concept that is widely used." S. Garfinkel, R. Stallman, and M. Kapor, Why patents are bad for software, 7 Issues in Science and Technology 50-55, 51 (1991).



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