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The Patent Crisis and How the Courts Can Solve It

Patent law is crucial to encourage technological innovation. But as the patent system currently stands, diverse industries from pharmaceuticals to software to semiconductors are all governed by the same rules even though they innovate very differently. The result is a crisis in the patent system, where patents calibrated to the needs of prescription drugs wreak havoc on information technologies and vice versa. According to Dan L. Burk and Mark A. Lemley in The Patent Crisis and How the Courts Can Solve It, courts should use the tools the patent system already gives them to treat patents in different industries differently. Industry tailoring is the only way to provide an appropriate level of incentive for each industry.

Burk and Lemley illustrate the barriers to innovation created by the catch-all standards in the current system. Legal tools already present in the patent statute, they contend, offer a solution—courts can tailor patent law, through interpretations and applications, to suit the needs of various types of businesses. The Patent Crisis and How the Courts Can Solve It will be essential reading for those seeking to understand the nexus of economics, business, and law in the twenty-first century.

232 pages | 6 tables | 6 x 9 | © 2009

Law and Legal Studies: General Legal Studies

Political Science: Public Policy


“There is no disputing that The Patent Crisis and How the Courts Can Solve It is a descriptive tour de force. No one else has done as comprehensive a job of summarizing today’s patent theories nor done more to bring them together than Burk and Lemley. This book will certainly be a success on almost any terms.”

Thomas B. Nachbar, Professor of Law and Class of 1963 Research Professor, University of Virginia School of Law

“Burk and Lemley offer the right diagnosis of the illness (i.e. sectorial shortcomings) of the patent system and suggest the right sectorial therapies, as well the right doctors—judges. This book should be carefully read, not only by the doctors, but by all players in the field, who soon may be facing the Burk and Lemley therapy.”

Joseph Straus, Director of the Max Planck Institute for Intellectual Property, Competition, and Tax Law

“Every chief patent counsel in a major U.S. company should read this book by Dan Burk and Mark Lemley. It provides the first comprehensive explanation of why the patent system is perceived by different industries in fundamentally different ways. Burk and Lemley make a credible case that the courts might be more effective than Congress in achieving some reforms, by tailoring patent law to specific industries through more than a dozen ‘policy levers’ and common law doctrines that are enumerated in the book.”

Herbert C. Wamsley, Executive Director, Intellectual Property Owners Association

"A fascinating introduction to a scholarly literature that, at least so far, raises as many questions as it answers."

Rebecca S. Eisenberg | Science

"[The authors’] book is a must-read because of its provocative ideas. More importantly, their ideas provide a beacon of reason and intelligence in what has been a complex mess of patent reform. Published in a year that has shown how convoluted legislative reform often is, this engaging book shows how it is possible to have politics and reform that is potentially free of the byzantine web of influence and diatribe."

Shubha Ghosh | IP Law Book Review

Table of Contents


Part I    The Problem

1    The Gathering Storm

2    Foundations of the Patent System

3    Cracks in the Foundation

Part II  The Diagnosis

4    The Diversity of Innovation

5    The Industry-Specific Nature of the Patent System

6    Heterogeneity in Patent Theory: Why We Can’t Agree Why We Patent

7    Parts of the Elephant: How Industry Perspective Drives Patent Theory

Part III The Solution

8    Why Courts and Not Congress Offer a Way Out of the Crisis

9    Policy Levers in Existing Patent Cases

10  More We Can Do: Potential New Policy Levers

11  Levers in a Specific Industry--Biotechnology

12  Levers at Work--the IT Industry

Conclusion: New Directions



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