Among the joys of being a professor, as distinguished from practicing law, are the leisure and incentive to think and write about the big picture. Another joy is being able to say what you really think. We professors don\u27t have to focus on attracting clients or maintaining an impression of studied understatement and moderation for judges and juries.
In this talk, I\u27m going to exercise both of these prerogatives. I\u27ve been thinking about the big picture in patents for over a quarter century, and I\u27m more worried than I\u27ve ever been.
Let me begin by making my usual (and truthful) disclaimer. I\u27m not one of those academics who delights in being a gadfly and finding cause for alarm in every new law and every twist and turn of legal history. I\u27m the author of three treatises--on intellectual property generally, licensing, and cyberlaw. I\u27ve spent much of the last thirteen years of my life writing and revising them. Like treatises generally, each largely describes and explains our current intellectual property system, and each finds much to like in what both recent and earlier history have wrought. More fundamentally, I strongly subscribe to the view that the robust intellectual property system of Anglo-American society is in part responsible for our society\u27s extraordinary economic success over the last four centuries.
But the warning signs of excess are everywhere. One need look no farther than the Federal Trade Commission\u27s White Paper that is the subject of today\u27s discussion. Think about it. Congress has clipped the FTC\u27s policy wings so often that it\u27s a wonder the agency can fly at all. Moreover, for the first time in decades, the executive and legislative branches of our government are controlled by Republicans, who have not generally been zealous advocates for aggressive antitrust enforcement and “pruning” the IP laws. Yet even in this very conservative political environment, the FTC--a much-chastened agency--has proposed ten recommendations (fourteen, if you count the subheads) for reining in the patent system. If that isn\u27t a clear sign that something desperately needs attention, I don\u27t know what is.
Therefore I\u27m going to take the premise of my talk--that something is wrong-- for granted. In the short time that I have, I\u27d like to explore three further questions. First, what is wrong? Second, how can we fix it? And third, how important is it that we do so
