Most experts in intellectual property believe that the United States patent system is under more strain today than at any time in its 210-year history. The stresses come from many sources, but mainly have to do with challenges posed by developments in biotechnology, information technology and web-based business processes, plus the elevated sense that even long-forgotten patents can be a rich source of corporate revenue. Whatever the causes, the U.S. Patent and Trademark Office, as well as the intellectual property courts, are being swamped by new sets of challenges that have little or no precedent.
To determine whether the system is in crisis or simply passing through an important transition time, the National Research Council in 1999 undertook a 33-month study, under its Board on Science, Technology, and Economic Policy (STEP). The first of two phases was completed in February with a two-day conference attended by almost 500 people. It is probably the most ambitious examination of the patent system ever undertaken by the NRC, the operating arm of the National Academies of Science and Engineering and the Institute of Medicine.
The study's cochairs are Mark Myers, recently retired director of research and technology for the Xerox Corp., and Yale University president Richard Levin. A summary of the main issues brought out during the conference is due for publication this fall, though it may take the form of proceedings on a CD ROM disk.
A second conference will be held early in 2001 and a final report will be issued about six months from then. In the meantime, STEP expects to commission a handful of research studies to better understand how the many constituencies are affected by the current system. The STEP study's first phase cost $500,000 under grants from the National Aeronautics and Space Administration and the Mellon Foundation.
Uniform But Diverse System
Myers, however, tells Research * Technology Management that the system has become so complex that adjustments will be difficult-which is why he believes the NRC study is so important. "One of the things that's very interesting about the system," he says, "is that it is a uniform system, a constitutionally derived system, which makes it an important and powerful system. But it's built up over experience and laws that have been added later. It is a uniform system applied to very diverse market segments. So semiconductors have evolved differently than advanced structural
materials which evolved differently from mechanical devices, and then on to software and biotechnology. All these are quite different industrial sectors around which a uniform system is providing the base."
So it is all pretty complex. Patent and Trademark Office director Q. Todd Dickinson told the conference in his keynote speech that he was quite aware of all the problems that were being discussed. But he said the PTO would handle the transition as it had handled all earlier transitions. "The concern," he said, "is that the intellectual property system `locks up' new knowledge and information, in contrast to the goal of science, which is to gain new information and disseminate that knowledge with little or no cost. But I think these fears that define the tension between the research and intellectual property minds are exaggerated."
The big challenge for the NRC study will be to detect and achieve perspective on the sorts of exaggerations Dickinson alludes to. It will then put into one basket a set of policy principles that apply to several different technological cultures-from the traditional mechanical and
chemical practices to biotechnology and the complexities inherent in the patenting of life forms, to software development and the difficulties of performing searches to determine uniqueness.
An extremely controversial area of intellectual property has become prominent in recent years, that of the software programming that goes into business methods, or the interactive processes that allow business to be transacted via the Internet. …