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  1. Litigation can probably be discouraged somewhat if rights are defined less broadly.76

  2. Again, if it is, as just suggested, desirable to favor smaller firms, the antitrust and intellectual property misuse doctrines may be helpful to assist them in their defense against litigation and thus to deter litigation against them.

OVERALL IMPLICATIONS

Ability of the System to Adapt to Increasing Innovation Rates

Nothing developed in this analysis provides any reason to believe that increased filing rates have posed fundamental problems for the system. To the contrary, the PTO has, overall, successfully kept up with the rate of innovation.

There are obvious qualifications. The PTO has not been able to hire new types of analytic capabilities rapidly enough; this has led to errors and delays in specific areas, and is likely to do so again and to cut against new technologies. In the biotechnology sector, in particular, the economic loss due to delay has been severe because firms are undertaking competing research projects and do not know which firm wins until a patent issues (and possibly until the patent is litigated). This is almost certainly a strong argument for switching to the global first-to-file system, with the applications made public a reasonable time after filing.77

Specific Doctrinal Implications of the Three Examples

The biotechnology case shows the system to be relatively successful in dealing with change. The critical pervasive problem is defining the point at which a gene becomes patentable; this is an issue that should ideally be

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Note that moderation is compelled by traditional economic analysis of intellectual property incentives. This analysis balances the incentive to innovation created by the monopoly right defined by intellectual property against the economic costs derived from the artificial prices created by the monopoly rent. An additional basis for moderation is suggested by the possibilities that smaller firms are better innovators and also victims of litigation costs. Put more broadly, under certain circumstances a first intellectual property monopoly right may in fact be exercised in a way that decreases incentives to subsequent innovation. For an argument in a similar direction, see Commissioner Hersey's dissent in CONTU, especially at pp. 35-36.

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With a first-to-file system, one can publish patent applications without fear of complicating priority disputes and thus speed the flow of scientific information. The typical European pattern, for example, is to require filing before publication, but then to publish the applications 18 months after filing (European Patent Convention, Articles 54 and 93). The publication conveys a form of interim protection (Article 67).



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