Mueller, Nicole Sigrid, Should Research Tools Be Patentable? Troubles & Chances of Patenting Research Tools in Biotechnology and Nanotechnology (August 31, 2008). Available at SSRN: http://ssrn.com/abstract=1265731
Mark A. Lemley, Ex Ante versus Ex Post Justifica tions for Intellectual Property, 71 U. CHIC. L. REV. 129, 149 (2004).
Dan L. Burk & Mark A. Lemley, Policy Levers in Patent Law, 89 VA. L. REV. 1576, 1648-1652 (2004).
Jay P. Kesan & Mark Banik, Patents as Incomplete Contracts: Aligning Incentives for R&d Investment with Incentives to Disclose Prior Art, 2 WASH. U. J. L. & POL'Y 23 (2000).
Anita L. Allen, Social Contract Theory in American Case Law, 51. FLA. L. REV. 1, 33-35 (1999).
Murray, Fiona. Stern, Scott. June 2005. Do Formal Intellectual Property Rights Hinder the Free Flow of Scientific Knowledge? An Empirical Test of the Anti-Commons Hypothesis. Prepared for NBER Academic Science and Entrepreneurship Conference. Working Paper No. 11465. http://imio.haas.berkeley.edu/WilliamsonSeminar/stern111705.pdf
http://books.google.com/books?uid=1933395611543063473
The only thing that is missing (in my humble opinion) are the early volumes of the Reports of Patent Case (RPC). C'mon Google (or someone else - get it on!
]]>I do not wish to overstate the threats posed by economists and the possible takeover of intellectual property policy by departments such as finance and treasury. However, I would suggest that in the endeavour to become socially interesting, intellectual property lawyers need to seek conceptual clarity about their objectives.Are they human rights lawyers or are they economic utilitarians? Are they protecting the product of human creativity or advancing economically useful incentives?
An economic evaluation of free speech must be met with mixed reviews. There is much that a proper view of economics can bring to this field of constitutional law. Economics can be useful when it is viewed as a science which examines the decisionmaking process, the study of optimization behavious subject to constraints. Economics cannot be helpful if it is viewed as a precise tool that can mechanically and independently determine the outcomes of complex problems. As a method, economics can lend valuable insight to the technical process of constitutional decisionmaking. In this capacity it can be used to assist in the framing of issues and in isolating the appropriate factors for judicial consideration. Economics is not helpful, however, in the inherently subjective process of weighing and quantifying competing concerns. It is wrong not to recognize this limitation, and it is dangerous to assume that difficult, value-laden decision areas in areas such as free speech can be decided mechanically by appealing to an economic formula. Difficult constitutional choices cannot be avoided by viewing first amendment issues through the lens of an economic perspective.
that it exemplified "a progressive tendency to forget all of the belief except the formularies, or to give it a dull and torpid assent, as if accepting it on trust dispensed with the necessity of realising it in consciousness, or testing it by personal experience".
It is, of course, correct that Congress, not the courts, must define the limits of patentability; but it is equally true that once Congress has spoken it is “the province and duty of the judicial department to say what the law is.” Marbury v. Madison,1 Cranch 137, 177 (1803). Congress has performed its constitutional role in defining patentable subject matter in §101; we perform ours in construing the language Congress has employed. In so doing, our obligation is to take statutes as we find them, guided, if ambiguity appears, by the legislative history and statutory purpose. Here, we perceive no ambiguity. The subject matter provisions of the patent law have been cast in broad terms to fulfill the constitutional and statutory goal of promoting “the Progress of Science and the useful Arts” with all that means for the social and economic benefits envisioned by Jefferson. Broad general language is not necessarily ambiguous when congressional objectives require broad terms.
It is argued that this Court should weigh these potential hazards in considering whether respondent’s invention is <447 U.S. 317> patentable subject matter under §101. We disagree. The grant or denial of patents on microorganisms is not likely to put an end to genetic research or to its attendant risks. The large amount of research that has already occurred when no researcher had sure knowledge that patent protection would be available suggests that legislative or judicial fiat as to patentability will not deter the scientific mind from probing into the unknown any more than Canute could command the tides. Whether respondent’s claims are patentable may determine whether research efforts are accelerated by the hope of reward or slowed by want of incentives, but that is all. What is more important is that we are without competence to entertain these arguments – either to brush them aside as fantasies generated by fear of the unknown, or to act on them. The choice we are urged to make is a matter of high policy for resolution within the legislative process after the kind of investigation, examination, and study that legislative bodies can provide and courts cannot. That process involves the balancing of competing values and interests, which in our democratic system is the business of elected representatives. Whatever their validity, the contentions now pressed on us should be addressed to the political branches of the government, the Congress and the Executive, and not to the courts.