In an article published online Monday for the The National Law Journal Dan L. Burk and Mark A. Lemley, authors of The Patent Crisis and How the Courts Can Solve It, deliver an interesting critique of current patent law, arguing that because of the conflicting needs of different industries in the patent system, Congress should leave it up to the courts to dynamically interpret patent law on a contextual basis, rather than trying to tailor the statutes themselves.
The need for patent system reform has become more visible recently because of the controversy over corporations’ ability to patent human genomes, a practice which was challenged in a suit filed by the American Civil Liberties Union Tuesday. The ACLU litigation cites the story of breast cancer survivor Genae Girard, who was denied a second opinion on her cancer diagnosis because only one company owns the patent on the genes associated with breast and ovarian cancer, prohibiting other corporations from developing similar tests, and stifling competitive innovation in the field. According to a recent article in the NYT, the company makes the counterargument that the current patent system already promotes innovation by giving companies a temporary monopoly that rewards their substantial investment in research and development.
But what is perhaps most clear from the argument, as Burk and Lemley’s article points out, is that the patent regulations for biogenetics should not necessarily be the same as those for, say, software or semiconductors, and that there is a pressing need for patents to be calibrated to the specifics of particular industries.
Read Burk and Lemley’s article on The National Law Journal‘s website, or find out more about their new book, The Patent Crisis and How the Courts Can Solve It.