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

3. 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.

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

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