John Duffy on Business Method Patents

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2 Responses

  1. A.J. Sutter says:

    I think one contestable point is about how necessary IP protection is for “innovation”. When innovation is measured in terms of patent applications, this is rather circular. Most derivatives contracts, as well as the classical 1980s M&A techniques, did not depend on “expansive” IP protection. Indeed, the bread and butter of practicing lawyers isn’t proprietary IP but know-how (in the US, not EU, sense of that term), since the sources of law are accessible to all; yet there are plenty of innovative lawyers. Moreover, technological innovation occurs in all cultures, whether IP is available or not. A nice book speaking to that point is John Powell’s The Survival of the Fitter.

  2. Frank says:

    AJ, those are interesting insights, and there are many legal scholars now addressing them. A conference at Fordham called “Worlds Colliding” featured the work of many of them, including Mike Madison, Brett Frischmann, and Kathy Strandburg.

    I agree, IP protection must be carefully calibrated to the real need for innovation in a particular industry. The Sprigman/Raustiala vs. Hemphill/Suk debate on the fashion industry in the Stanford L. Rev. is an indication of the direction of scholarship in the field–as predicted in Michael Carroll’s work on “uniformity costs” of IP.