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Discussion

Conference discussion of the chapters in this section focused on the choice between traditional intellectual property paradigms and alternative approaches to protecting intellectual property in new technologies. Increasingly, important new technologies seem to fall in the interstices between the traditional paradigms. Perhaps the fundamental issue can be stated as, What should be done about nonpatentable, noncopyrightable innovation?

Concern was expressed that some of the most economically important technological changes in the twenty-first century will consist of incremental innovation that is easily reproduced. In biotechnology, for example, many of the most important future developments may not be patentable because technically they will not meet the criterion of nonobviousness. The cure for cancer may also be unpatentable because of the nonobviousness criterion. This problem, which is very difficult to deal with, is likely to be serious for biotechnology and other advanced technologies in the twenty-first century.

Opinion on the wisdom of sui generis approaches was split. In one view, sui generis systems can be used to protect things that do not involve an inventive step but yet have economic value. This view suggests that other values besides inventive step or expression, such as lesser discoveries, deserve protection. Paradigms exist for this kind of protection, in the German copyright law, the law of petty patents, or the old German Gebrauchsmuster.

On the other hand, concern was expressed that sufficient attention has not been given to the problems inherent in sui generis statutes. Critics of such approaches commented that courts are needed to interpret even the



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Global Dimensions of Intellectual Property Rights in Science and Technology Discussion Conference discussion of the chapters in this section focused on the choice between traditional intellectual property paradigms and alternative approaches to protecting intellectual property in new technologies. Increasingly, important new technologies seem to fall in the interstices between the traditional paradigms. Perhaps the fundamental issue can be stated as, What should be done about nonpatentable, noncopyrightable innovation? Concern was expressed that some of the most economically important technological changes in the twenty-first century will consist of incremental innovation that is easily reproduced. In biotechnology, for example, many of the most important future developments may not be patentable because technically they will not meet the criterion of nonobviousness. The cure for cancer may also be unpatentable because of the nonobviousness criterion. This problem, which is very difficult to deal with, is likely to be serious for biotechnology and other advanced technologies in the twenty-first century. Opinion on the wisdom of sui generis approaches was split. In one view, sui generis systems can be used to protect things that do not involve an inventive step but yet have economic value. This view suggests that other values besides inventive step or expression, such as lesser discoveries, deserve protection. Paradigms exist for this kind of protection, in the German copyright law, the law of petty patents, or the old German Gebrauchsmuster. On the other hand, concern was expressed that sufficient attention has not been given to the problems inherent in sui generis statutes. Critics of such approaches commented that courts are needed to interpret even the

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Global Dimensions of Intellectual Property Rights in Science and Technology most seemingly obvious statutes. The more an intellectual property right (IPR) statute departs from traditional patent and copyright law, the more years it will take for the courts to complete the initial round of interpretation. By then, it may be time to reconsider whether the statute has been overtaken by changing technology. A member of the audience who was involved in drafting the Semiconductor Chip Protection Act (SCPA) of 1984 underscored the problems with sui generis law that arise from not being in the mainstream of intellectual property law. The uncertainty of developing new intellectual property law leads legislators to be very cautious and makes them reluctant to speculate about possible future new technologies. A staff member of the House Judiciary Committee offered a series of contrasting perspectives on the SCPA of 1984. He noted that the sui generis approach to semiconductor chips was proffered by the intellectual property community, which feared "distortion by shoehorn." He recalled that the reverse engineering provisions in the law were offered by the semiconductor industry itself. He argued that the reciprocity provisions of the SCPA have succeeded in achieving bilateral relationships with all other semiconductor-producing countries. Finally, in his view, the Washington Treaty (for semiconductor mask work protection) was not really a failure; it led to increased discussion and refinements that are now a part of the IPR discussions in the Uruguay Round of the General Agreement on Tariffs and Trade (GATT). One of the concerns expressed about sui generis approaches is that they would lead to a piecemeal approach to legislation. Clearly, technology-by-technology sui generis laws would not be helpful. Such an approach is not necessarily the only alternative, however. A law professor in the audience argued that the legal profession has had 200 years of experience with cases concerning the protection of technologies that do not meet the requirements of the major IPR paradigms. This is arguably sufficient to derive a conceptual basis for a new IPR paradigm for nonpatentable, noncopyrightable innovation. Another issue concerned the principles that should guide the choice between sui generis or existing statutory provisions. Different principles arise, depending on whether the goal is to protect the property of the generator of new technology or to increase social benefit from the new technology. One person gave as an example the protection of computer program interfaces, which leads to a lack of standardization and reduced value to end users of much of the new technology. In the traditional formulation of the IPR policy question as a trade-off between the innovator and imitators, sight may be lost of the interests of the public. It was suggested that with respect to protection of the user interface and perhaps more broadly, intellectual property law should balance the rights of the consuming public, initial inno-

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Global Dimensions of Intellectual Property Rights in Science and Technology vators, and competitors. It was further noted that it is very difficult to address these kinds of issues within existing legal and theoretical frameworks. The question was raised whether sui generis approaches and international harmonization of IPR laws are contradictory, particularly given that the United States and Japan did not accept the Washington Treaty. One response to this concern was that sui generis approaches are somewhat at odds with harmonization, but that there are going to be problems in harmonization even if the traditional paradigms are used, because courts in different countries may not reach the same decision. Professor Barton's recommendation that IPR reform be handled through standing study groups or commissions might alleviate this problem. International agreements on sui generis IPRs could be sought by establishing such study groups and making them international in composition. Another response was that the ability of the European Community (EC) to negotiate a software directive has demonstrated the possibility of attaining multilateral protection for sui generis rights. (Observers making this argument view the EC software directive as a sui generis approach, although it is formally a copyright approach.) Chapter 11 raises concerns about the effects of IPRs on small businesses. Would narrower patent claims be antithetical to small businesses? Would large companies dominate international commissions of the type envisioned by Professor Barton? To assess the first question, it is necessary to balance the scope of the claims of a small business against that of patents already issued. One view offered at the conference was that, given the costs of litigation, the disadvantage to a small business of broader claims held by others would be greater than the benefit of its own broader claims, which it might not have the capability to exploit. With respect to the second question, although it is possible that large companies might dominate, at least in the commission context activities would be much more visible. Another point that came out in discussion is the politically controversial nature of IPR issues and the roots of that controversy in strong economic interests. Any body of law in the IPR area significantly affects the rights of various players. For example, if the law is changed to give strong protection to computer interfaces, those who control large computer networks are given significantly greater power and economic rents. There is probably no way of avoiding this. The question for public policymakers is, How far should the monopoly go? One audience member commented that legal cultures and traditions have evolved worldwide over hundreds of years and in different cultural contexts. The challenge as viewed by this person is to put in place over several decades a worldwide system that would be amenable to all countries. To

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Global Dimensions of Intellectual Property Rights in Science and Technology date, efforts have consisted mainly of propagating a Western cultural view of IPRs as broadly as possible. Some non-Western countries have voluntarily adopted Western-style IPR laws in the race to modernize, but the West cannot count on this continuing. The negotiating positions of Brazil and India in the GATT talks on IPRs prefigure this change. If the goal is a lasting and stable global order, nations must move beyond imposition or adoption of one particular country's model to reach a consensus about a model or variety of models that respect cultural differences. Another broad question from the audience was whether the IPR legal system has to solve all resource allocation problems generated by new technology. The implication was that too much of a burden may be put on the IPR system, and concomitantly not enough emphasis on other areas of public policy, to deal with the economic issues arising from new technology. This question leads to the topic of Section VI, which attempts to put IPR issues in a global perspective.