Scientific and technological innovations are forcing patent law into the spotlight and revealing its many glaring inadequacies. Take, for example, the patent case that almost shut down the BlackBerry, or the growing phenomenon of patent trolling, in which patents are acquired for the sole purpose of entrapping companies whose products relate to them. And patents on genes have everyone up in armsand our courts confused.
Robin Feldman explains why patents are causing so much trouble. The problem lies in our assumption that patents set clear boundaries for rights to an invention. In reality, they do no such thing. The very nature of inventions makes them impossible to describe unambiguously for all time. When something is so new that we do not understand yet how it works, what it is capable of doing, or how it could be appliedas is often the case in biotechnologydescription is necessarily slippery.
Instead of hoping for clear boundaries, and moaning when we don’t get them, Rethinking Patent Law urges lawmakers to focus on what the law can do well: craft rules that anticipate the bargaining that will occur as rights unfold. By steering clear of laws that distort the bargaining process, lawmakers can help courts answer difficult questions, such as whether genes, software, and business methods constitute patentable subject matter, whether patents in the life sciences should control inventions that have yet to be discovered, and how to resolve the battles between pharmaceutical companies and generics.
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About the Author
Robin Feldman is Professor of Law at the University of California, Hastings College of the Law.
Table of Contents
1 The Bargain Aspect of Patents 9
2 How Modern Patents Operate 40
3 Implications of the Bargain Aspect for Current Debates 75
4 Where Do Processes of Nature End and Processes of Human Inventions Begin? 91
5 The Interaction of Patents with Contracts and Antitrust 136
6 Beyond the State of the Art 179
What People are Saying About This
A beautifully written, engaging account of the bargain aspect of patent entitlements. Feldman's influential theory transforms the way we look at inventions and the laws protecting them. A pathbreaking work that is required reading for anyone wishing to understand how our patent system operates—and how it should change for the future.
Sonia K. Katyal, Fordham University School of Law