John Duffy on Business Method Patents

duffyBusiness Week features my colleague and friend, John Duffy, in a story focused on the law governing business method patents.  John argues that innovation depends upon expansive intellectual property protection, including for business methods.  These would include financial products and management techniques. 

To critics of such expansive scope, the feature quotes John as follows:  “Precisely because innovations break with the preconceptions of the past, the law should not rely on yesteryear’s notions of technology.   Innovation constantly surprises us and that’s exactly what we should want.”  

Read the whole feature, for more, like John’s views on damages awards and even a tidbit on his personal background, as a blackjack card counter.  Also check out John’s excellent scholarship, including his seminal piece on how administrative patent judges are unconstitutional.

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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.