Economics Confronts the Economy
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Abstract
The authors' positions on these issues demonstrate the limited ,scope of their analysis. If their arguments are taken as toward a more effective balance of interests in the existing system then the contribution is laudable. That is to say, the specific task of ensuring protection where appropriate, yet affording no more power than necessary, has been dealt with well. However, the material submitted is far from sufficient to speak to contemporary controversies such as the extension of patent protection. into new domains (e.g. biotechnology, software, business method), the inherent efficacy of intellectual property rights, and so on. Such matters could have been left for another time, leaving just the issues of patent quality (validity) and litigative power. The bulk of the reforms proposed in Innovation and its Discontents is directed at the PTO and includes the use of third party information in the review process and a tiered system of reexamination. The aim of such reforms would be fewer patents of dubious validity and thus less litigation and greater certainty among firms. To be sure, some of the proposed reforms appear only to move problems from the CAFC to the PTO where they can more practically be managed. The presumption of validity at trial, for instance, which is in part responsible for a patent holder's advantage in court, is retained in the authors' proposal. The improved review process is expected to make the presumption correct and reduce lawsuits to those in which the patent is more likely valid. Much of the argument relies heavily on constructing a more rigorous review process, and on this front, the authors have made a significant contribution. In spite of the above objections, this accessible volume has many merits. The authors should be applauded for their straight-forward approach and their focus on definite practices such as the patent application process. With elucidating, often entertaining examples this book would be appropriate as supplemental text for students and scholars of intellectual property rights.