PENNumbra publishes responses to Foundations of Intellectual Property Reform Symposium
posted by University of Pennsylvania Law Review
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This month, Jonathan S. Masur and Lee Petherbridge respond to panelists who participated in the Law Review’s Foundations of Intellectual Property Reform Symposium.
In PTO’s Future: Reform or Abolition?, Professor Masur responds to the panelists from Intellectual Property Meets Administrative Law: Institutional Reform at the Patent and Trademark Office. In response to Professors Abramowicz and Duffy’s proposal for a competitive marketplace for granting patents, Masur uses the recent failures of the SEC to question whether the PTO could provide effective oversight of the new marketplace. In response to Professor Long’s analysis of the PTO’s efforts to expand its authority over patent law, Masur attempts to explain the Office’s “unholy alliance with intellectual-property-related interest groups and industry lobbying bodies.” Turning to Professor Rai’s article, Masur contrasts Rai’s incremental reforms to the sweeping changes suggested by Abramowicz and Duffy and wonders if implementing Rai’s suggestions might improve the PTO “to the point where a private competitor would not seem to offer such obvious benefits.” Finally, Masur examines Professor Mossoff’s “new defense of Lockean property theory” against Felix Cohen’s seventy-year-old critique. Despite Mossoff’s novel arguments, Masur maintains that an item or idea “has no value to an individual—even in Mossoff’s terms—without some set of enforceable rights.”
Professor Petherbridge offers his insights in response to the panelists from Addressing Patent Quality: The Theory, Practice, and Implications of the Way Patents Are Granted. Instead of commenting on each article in turn, Petherbridge uses his response to take up “some of the issues in the broader scholarly debate about patents, patent quality, and patent-system reform that . . . are put into relief by the present works.” Petherbridge begins by examining how each article addresses (or perhaps, belittles) the problem of “low quality” patents, asking “Are low-quality patents a problem worth the candle?” Next, Petherbridge explores the two “very different views [presented by the three works] about how a patent system might operationalize the exclusive rights that it promises,” focusing especially on Professors Burk and Lemley’s proposal to move back to a central-claiming regime to determine a patentee’s exclusive rights. Despite Burk and Lemley’s “well written and forcefully presented” arguments, Petherbridge offers several reasons why the reader should be cautious in accepting Burk and Lemley’s conclusions “hook, line, and sinker.” Finally, Petherbridge considers the insights of the three works into such “seminal” concepts of patent scholarship as the economic function of patents and whether we should even have our current patent system.
As always, please visit PENNumbra to read previous Responses and Debates, or to check out pdfs of the Penn Law Review’s print edition articles.
September 14, 2009 at 9:03 am
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