Cover Image


View/Hide Left Panel

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-

The National Academies | 500 Fifth St. N.W. | Washington, D.C. 20001
Copyright © National Academy of Sciences. All rights reserved.
Terms of Use and Privacy Statement