IP Paper-Jackie Poapst

Reforming the Patent System
A Controversy Paper Proposal for the 2013-2014 CEDA Season
Submitted By: Jackie Poapst

George Mason University
Special Contributions*
Colin Dailey
Erica Jalbuena
Luke Melton
Alex McVey
Raj Nijjar
DM Woodward
*Alphabetical order
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Table of Contents
Introduction: Reasons the Debate Community Should Debate Patents .................................................................. 3

Potential Resolutions .............................................................................................................................................. 9
Stem #1: Substantive standards for patent eligibility ........................................................................................ 11
Stem #1a – Subject Matter ............................................................................................................................. 13
Stem #1b – Utility .......................................................................................................................................... 17
Stem #1c – Novelty ........................................................................................................................................ 18
Stem #1d – Nonobviousness .......................................................................................................................... 20
Stem #2: Amount of Patents .............................................................................................................................. 27
Potential Negative Ground .................................................................................................................................... 31
Disadvantage Ground ........................................................................................................................................ 32
Politics ............................................................................................................................................................ 33
Industry Specific Disadvantages .................................................................................................................... 34
Counterplan Ground .......................................................................................................................................... 36
Prizes Counterplan ......................................................................................................................................... 37
Procedure Counterplan ................................................................................................................................... 38
Potential Critical Ground ...................................................................................................................................... 39
Author Recommendation ...................................................................................................................................... 51
Helpful Definitions ............................................................................................................................................... 52
Other Sources ........................................................................................................................................................ 61
2
Introduction: Reasons the Debate Community Should Debate Patents
“The battle over "intellectual property rights" is likely to be one of the most important of this
century. It has enormous economic, social, and political implications in a wide range of areas,
from medicine to the arts and culture -- anything where the public interest in the widespread
dissemination of knowledge runs up against those whose income derives from monopolizing it.”
– Mark Weisbrot, co-director of the Center for Economic and Policy Research
I am honestly going to approach this topic paper rather bluntly, so I apologize if you expected beautiful
essay-style writing and do not receive that. Card cutting, not writing, is my specialty. So, I will try to provide
you with the information necessary, but cannot guarantee writing perfection.
Let’s be honest with ourselves. There are not many in the debate community who jump up and down
when they think about a legal topic. The research is a little denser than most domestic/international topic
research and the topic is often seen as stale. But, because of the recent CEDA amendment, we have to debate
one every four years, and this is year number two in the cycle. If we do not choose a legal topic this year, we
have two more years to find a decent legal topic to debate. So, if you are in the minority of legal topic lovers,
vote for a legal topic this year so that your debate dreams can come true! However, if you are like most of us in
the community, the idea of a legal topic may make you a little hesitant. So, instead of delaying the inevitable,
you should take the chance this year when one of the legal topics being offered is timely, has good ground for
both sides, and provides pretty damn interesting education: intellectual property.
In this section I will outline several reasons that a patents topic would be beneficial for the college
debate community: research innovation, societal importance, timeliness, and a diverse literature base.
The difference with a legal topic like patents and other legal topics is that in order to debate the terms of
arts used for solvency advocates in regards to patents, in most cases one needs to forgo Google (gasp!). In
comparison to other topics that could be considered a legal topic, credible patents literature is found through
other means (could it be that debaters may actually have to crack open a book or read through a law review?!).
I think it is a travesty that many debaters leave the activity without having developed necessary legal
research skills beyond understanding how a few Boolean search operators work on lexis and how to operate a
Google advanced search. Having a deep legal topic like patents can function to create a change in research
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practices for debaters (and coaches alike) towards learning how to intensely research legal reviews, delving into
searching through legal code and targeting reading of journals rather than the simple Google search.
A patents topic would also initiate a move away from cutting cards from sources lacking credibility, and could
be the impetus to teaching debaters to actually debate the qualifications of their authors. If you notice while
reading this paper, most of the solvency advocates that I include are from these sources. The great thing about
journals, legal reviews and books in comparison to random New York Times articles written by “Staff Writer”
is that they are not only informed, but are deeply researched and can provide a large amount of evidence for a
position. This last point also answers potential concerns that a topic centered around this type of research
would be too difficult, as one does not require debaters to piece together twenty to thirty different articles in
order to have a whole position.
Not only will this topic usher in new education in regards to legal research, but it is also a fundamental
concept of American history in which the debate community has neglected to focus our attention. According to
the Constitutional Rights Foundation, the framers of the Constitution took strides to ensure that intellectual
property would be included in the United States’ Constitution:
Constitutional Rights Foundation 2008 [Intellectual property, Bill of Rights in Action, WINTER 2008
(Volume 23, No. 4)]jap
Our nation's founders recognized the value of intellectual property, and in the U.S. Constitution, they granted
Congress the power to protect it. From the beginning of our nation, Congress has enacted patent and copyright
laws to protect the works of creative people and to encourage others to be creative.¶ When the American
Revolution ended, the states faced an economic depression. War debts had mounted, and some states could not
pay what they owed. Seven of the 13 states had issued their own paper money, which had little value.
Merchants and wealthy planters who were owed money were becoming angry. The new government of the
United States was based on the Articles of Confederation, adopted during the Revolutionary War. The articles
gave great power to the individual states and little to the central government. With no power to act, the central
government failed to address the war debt and other commercial problems. When the Constitutional Convention
convened in 1787, its members recognized that a new constitution would need to encourage commerce and to
provide the basis for a stable economy.¶ To that end, the framers gave Congress the power to lay and collect
taxes, to pay the debts owed by the United States, to borrow money on credit, and to coin money and regulate
its value. They also gave Congress the power "to Promote the Progress of Science and useful Arts" by giving an
economic incentive to inventors and writers. That power, and the national patent and copyright laws that soon
followed, have stimulated the country's economy for more than 200 years.¶ The framers probably could not
have predicted how important patents and literary products would become to the national economy. But even in
1787, they knew the basic reasons for protecting intellectual property: Society benefits from the products of
original and creative thought. Protecting these products gives their producers an incentive to create more and
thus stimulates greater activity.
4
If one looks to the Constitutional issues that this excerpt outlines, the debate community has neglected to
debate any of these issues. It seems almost counterintuitive that an activity that so often evaluates United States’
governmental policies has overlooked one of the main topics that the Constitutional framers knew must be
included in the Constitution of the United States. Many recent topic papers that address previously debated
issues, such as the energy paper, argue that “tried and true” is something we should strive toward. However, that
view ensures that the community will never grow or learn about arguments outside our comfort zone. As
governmental policy and societal concerns shift, so should we. Yes, this means you may have to put down your
impact back file tubs from ten years ago in favor of new research, but we should see new education as a good
thing rather than a bad aspect of this topic. Also, the opposite fear that this topic may be too new and expansive
is also incorrect. Instead, I believe that it follows a moderate line between harmonizing previous strains of
debate that the community has had with new innovative discussions. For example, many patents deal with
science and technology, something that IS tried and true with the debate community.
You may ask yourself, “Why should we talk about patents?” or “this sounds useless – the patent system
has been around forever, what’s wrong with it?” Well, the fact that the patent system has been around forever
and we haven’t debated how to solve its flaws is incredibly problematic. Patents control large parts of society,
whether that is the manufacturing sector, medical sectors, science/tech sectors, and even art. Yet, it is muddled
and needs extensive work. The current patent system suffers from major holes that allow patent trolls to abuse
the system in their favor – placing high barriers to entry for potential innovators. According to Reuters, despite
previous reforms, the patent process still needs a major overhaul:
Reuters 2/14[Obama says patent reform needs to go farther, http://www.reuters.com/article/2013/02/15/us-obama-patent-
idUSBRE91E03320130215]jap
President Barack Obama, in an unusual foray into patent law, on Thursday said U.S. patent reform needs to
go farther to address the trend of companies that do not manufacture any products aggressively suing
other companies for patent infringement.¶ High-tech companies in particular have complained to
regulators about big patent licensing companies that manufacture nothing but sue long lists of firms, often
using weak patents to do so. Many high-tech firms settle to avoid litigation risk but some, like Google,
fight back.¶ The polite term for these firms is "non-practicing entities" but in private they are more
rudely called "patent trolls."¶ After a years-long fight, Congress passed a patent reform in 2011 which did
little to address the issue.¶ "Our efforts at patent reform only went halfway to the point where they need
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to go," said Obama during an online question and answer session, calling for "smarter patent laws."¶ Long
focused on large corporations because of their deep pockets, these entities have recently turned their
attention to start-ups which are not as established but have raised large amounts of money and often
have substantial revenue.¶ "I'm an ardent believer that what's powerful about the Internet is its openness
and the capacity for people to get out there and just introduce a new idea with low barriers to entry,"
Obama said. "We also want to make sure that people's intellectual property is protected."¶ The increase in
patent lawsuits by these companies is so pronounced that they now constitute the majority of U.S. patent
lawsuits, according to a study by Colleen Chien, a law professor at Santa Clara University and a patent expert.¶
She found that about 61 percent of all patent lawsuits filed through December 1, were brought by patent-
assertion entities, or individuals and companies that work aggressively and opportunistically to assert patents
as a business model. That compares with 45 percent in 2011 and 23 percent five years ago.¶ These firms are
asserting patents that were either originally awarded to them or that they acquired.
“But no!” some in the community may say. “We debated intellectual property in 2003!” False. We
debated a Europe topic that happened to include a crumb of intellectual property education solely about
harmonization with the European Union’s practices towards intellectual property of human DNA. Here is the
Resolution wording:
2003-2004 Resolved: that the United States Federal Government should enact one or more of the
following:
1. Withdrawal of its World Trade Organization complaint against the European Union’s restrictions on
genetically modified foods;
2. A substantial increase in its government-to-government economic and/or conflict prevention
assistance to Turkey and/or Greece;
3. Full withdrawal from the North Atlantic Treaty Organization;
4. Removal of its barriers to and encouragement of substantial European Union and/or North Atlantic
Treaty Organization participation in peacekeeping in Iraq and reconstruction in Iraq;
5. Removal of its tactical nuclear weapons from Europe;
6. Harmonization of its intellectual property law with the European Union in the area of human DNA
sequences;
7. Rescission of all or nearly all agriculture subsidy increases in the 2002 Farm Bill.
Not only was intellectual property a small part of that topic, but this resolution happened a decade ago.
The issues in play with patents and even with human DNA sequences relating to patents are completely
different. Since that topic, our patents system has been harmonized with Europe’s system. However, it is still
ineffective. Deeper reform to the patent system is necessary. There are several barriers to a feasible system now,
such as a large patent backlog, long timeframes for patent approval, patent trolls, and preferential treatment for
large corporations that the recent legislation doesn’t solve.1
1
Brad Plumer (2011) Everything you need to know about patent reform in one post, Washington Post
6
Not only do these reforms not solve, but the United States is also at the point in those reforms where we
are going to start to see the effects of that legislation. The legislation happened three years ago, but the system
has been in effect for a little over one month.2 That means that the literature about a new change in the system
will not only be deep for both sides, but the topic will provide a great amount of timely education.
Another reason I would offer to debate patents is because of its current importance and timeliness.
Currently, there is a patenting case being deliberated in the Supreme Court about gene patenting and whether
gene material cannot be patented because it is from nature3. The case will be decided at the end of June. While
many in the community are attempting to shy away from topics that are “too timely” because of the past few
topics, I believe that this move is a mistake for several reasons. My first point of proof is the nuclear weapons
topic. If we as a community chose to forgo any topics that were too timely, that topic would have been cast to
the way side because of Russian arms negotiations that were occurring during the topic. Second, “too timely”
education is something that the community should strive to achieve so that we can use that education to make a
difference. Why should we desire to debate something that has no relevance on modern day decision-making?
Third, if we are afraid of “too timely” topics, I’m afraid we are going to have to forego debating this year. There
are two affirmative action court cases now. The Supreme Court will hear the Michigan case in its term starting
in October, while a ruling in the Texas case could come at any time, which I guess means that topic is too
timely.4 Obama just submitted his 2014 budget proposal, which included a request of almost one billion dollars
of poverty aid, which I guess means that topic is too timely.5 Obama also said that he is optimistic about CTBT
ratification in his second term, and Senator Kerry has been a devout proponent of LOST ratification, so I guess
that means treaties is gone too.67 Also, the DOMA and Prop 8 cases definitely make many of the other proposed
topics just a little “too timely” as well. So instead of fearing timeliness, we should embrace it and understand
3
http://www.nytimes.com/2013/04/15/business/as-court-considers-gene-patents-case-may-overlook-relevant-
issues.html?pagewanted=all
4
http://www.insidehighered.com/news/2013/03/26/supreme-court-takes-another-case-involving-affirmative-
action-and-higher-education
5
http://www.mcc.gov/pages/press/release/release-041013-president-obama-requests
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http://www.nti.org/gsn/article/obama-official-optimistic-both-ctbt-and-new-arms-cuts-russia-second-term/
7
http://news.investors.com/ibd-editorials/032813-649779-kerry-wants-law-of-the-sea-treaty.htm?p=full
7
the benefits that timely education brings to debate. Besides, the Supreme Court decision for gene patents is only
one aspect of the patents debate that is decided in the middle of the summer, so I don’t think we have to worry
too much.
The final argument that I would make for patents as a debate topic is that the literature base is diverse.
The problems debaters had of debates becoming stale after a few tournaments would not be the case of this
topic. Not only are the advantage areas large and interesting (medicine, engineering, mathematics, chemical,
telecommunications, electronics, scientific research, aerospace, agricultural innovation, critiques of the logic of
property being a few), but there are actually solvency advocates on BOTH sides of the patents debate. For
example, proponents of patents argue that prospect of a market monopoly encourages initial innovation to gain
patents; while opponents of patenting can take the rent-seeking side of the debate, arguing that patents allow the
monopoly holders or monopoly seekers to have a detrimental control of sectors of the market:
Boldrin and Levine 2013

[Michele Boldrin is Joseph Gibson Hoyt Distinguished University Professor of Economics and David K. Levine is John H. Biggs
Distinguished University Professor of Economics, both at Washington University in St. Louis, Missouri. They are also both Research
Fellows with the Federal Reserve Bank of St. Louis. The Case Against Patents, Journal of Economic Perspectives—Volume 27,
Number 1—Winter 2013—Pages 3–22]jap
There is little doubt that providing a monopoly as a reward for innovation increases the incentive to innovate. There is equally little
doubt that granting a monopoly for any reason has the many ill consequences we associate with monopoly power—the most important
and overlooked of which is the strong incentive of a government-granted monopolist to engage in further political rent seeking to
preserve and expand its monopoly or, for those who do not yet have a monopoly, to try to obtain one. These effects are at least to
some extent offsetting: while the positive impact of patents is the straightforward partial equilibrium effect of increasing the
profits of the successful innovator to the monopolistic level, the negative one is the subtler general equilibrium effect of reducing
everybody else’s ability to compete while increasing for everyone the incentive to engage in socially wasteful lobbying efforts.
The case debates on patents going both ways is deep enough to last for a year of debates. Another
example is the ideological market camps. One side of the fence believes that patents are key to the free market,
while another sees patents as destroying the market through legal monopolies:

Finally, political economy can be influenced by how standard terminology frames a problem. Landes and Posner (2004) point out that
there is an “ideological” argument in support of stronger patent rights: supporters of free markets tend to favor institutions of
private property, and patents and copyright are intellectual “property.” Hence, strengthening them is ideologically and
politically consistent with the general principle that “private property is good for growth.” But as we (Boldrin and Levine
2008b) and many others elsewhere have argued, patents are just a monopoly, not property.
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Potential Resolutions
I. Broad, Elegant Wording:
The United States Federal Government should substantially reform substantive standards for eligibility
in its patent system.
While I believe that this wording would enable the affirmative to capture much more ground and
innovation, because the patent system is so complex and diverse allowing the affirmative a resolution that
would permit reform in either direction for eligibility of patents may be unfavorable. While bidirectionality
could provide greater education on different policies, in the case of patent law – we may be biting off more than
we can chew.
II. Narrow Eligibility Wording:

The United States Federal government should reform its patent system by substantially narrowing
substantive standards for patent eligibility in the United States.
This resolution would not be a bad choice for the debate community. However, I believe that there are
many beneficial reasons to include ground for debating about reducing the amount of patents that are given in
the United States, which will be explained in later sections.
II. List Wording:

The United States Federal government should reform its patent system by substantially narrowing
substantive standards for patent eligibility and/or substantially reducing the amount of patents issued in
the United States.
While this proposed resolution is slightly more wordy, the stems provide a large amount of affirmative
flexibility while still giving the negative specific terms of art that ensure predictability and ground as well. This
wording addresses the issues that are currently at the core of the patents debate. In the following sections, I have
included definitions for the key words in this proposed resolution along with a generic explanation of each stem
that I found evidence for solvency advocates. This does not mean that the others were excluded because they do
not have solvency advocates, but because I personally could not find them or did not have the time to research
them.
IV. Alternative Actor Option
The United States Patent and Trademark Office, under policy direction of the Secretary of Commerce,
controls patenting in the United States. This is a specific topic where the community push for an agency actor
9
for the resolution could be achieved. However, this author believes that doing that would detract from the legal
education benefits that can be derived from this topic. Instead, the broad inclusion of the United States Federal
Government in the proposed resolutions allows for affirmatives to also access legal change through the courts,
which is a key part of the patent debate (seen in the history and education section).
V. Affirmative Advantage Breakdown

This list isn’t meant to be exhaustive, but just to get your brain going a little:
Science
Science
Science
Science
Economy
Market things
Innovation
Technology
Computers
Trade
Corporations
Pharmaceuticals
Biotech
Semiconductors
Culture
Critical things about knowledge
Science.
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Stem #1: Substantive standards for patent eligibility
Substantive standards for patent eligibility would allow for debaters to argue for affirmatives that make
it harder to qualify for a patent. This stem would exclude affirmatives that attempt to simply change procedural
standards for patent eligibility (i.e. You included a picture on the patent application), but would allow
affirmatives that raise the standards for what is considered a “useful invention,” a “new” invention, etc…
Patent Eligibility applies to the basic requirement one must meet in order to receive a patent. According
to the USPTO, there are five qualifying factors for patent eligibility (more helpful eligibility definitions related
to patents are in the helpful definitions section): 1. Subject Matter 2. Utility 3. Novel 4. Non-obvious 5. Public
Disclosure:
FindLaw 2013
[Clark and Allen PC, Patent Eligibility Requirements FAQ, http://smallbusiness.findlaw.com/intellectual-property/patent-eligibility-
requirements-faq.html]jap
What are the basic requirements for a patent? ¶ In the United States, there are five elements of patent eligibility. The United States
Patent and Trademark Office (USPTO) states:¶ 1. In order for your invention to qualify for patent eligibility, it must cover
subject matter that Congress has defined as patentable. The USPTO defines patentable subject matter as a ny "new
and useful" process, machine, manufacture or composition of matter . Machines or processes are patentable
subject matter, but the laws of nature are not. So, you can patent a machine for sorting packages, but you can't get a patent for
sunlight.¶ 2. The invention must have a "utility," or in other words, be useful . Note that this requirement is only for utility
patents (see next question, below).¶ 3. The invention must be "novel," or new .¶ 4. The invention must be "non-
obvious," meaning its use or function can't be something that is simply the next logical step of an already
patented invention. Much of the argument between the USPTO and patent applicants revolves around the issue of non-
obviousness.¶ 5. The invention must not have been "disclosed" to the public prior to the application for the patent. For
example, if you've written an article describing the invention before you apply for the patent , the USPTO may
deny the application because you've already disclosed the patent and therefore it's public knowledge.
Using this as a solvency mechanism is founded in the literature, guaranteeing actual solvency advocates.
Many legal scholars argue that raising substantive standards solves patent trolls, reduces backlog and opens up
Patent Office resources, which all improves patent quality:
Seymore 2013
[Sean B. Seymore, Professor of Law, Vanderbilt University Law School. J.D., University ¶ of Notre Dame, 2006; Ph.D. (Chemistry),
University of Notre Dame, 2001;¶ M.S.Chem., Georgia Institute of Technology, 1996; B.S., University of Tennessee, ¶ 1993., The
Presumption of Patentability, Minnesota Law Review. 2012, Vol. 97 Issue 3, p990-1046. 57p., ebsco]jap
The U.S. Patent and Trademark Office ( Patent Office ) has¶ come under fire for issuing patents of questionable quality.2¶
Patent quality can be defined as “the capacity of a granted patent¶ to meet (or exceed) the statutory standards of
patentability—¶ most importantly, to [cover inventions which are] novel, nonobvious, and clearly and sufficiently described.”3
Famous¶ examples of questionable patents include one for a motorized¶ ice cream cone,4 an umbrella to protect beer cans from
sunlight,¶ 5 a method of exercising a cat with a laser pointer,6 and a ¶ method for sending signals faster than the speed of light.7¶
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Aside from being technically invalid,8 commentators have argued¶ that such patents are worthless9 and burdensome on the¶
patent system.10 The quality problem has been ascribed by different commentators ¶ to many different causes. For example, some
assert¶ that the Patent Office’s current compensation system favors issuance¶ over denial11 and rewards throughput over
thorough examination.¶ 12 Perhaps most emblematic of this quality compromising¶ incentive structure is the Patent Office’s
selfdeclared¶ mission to “help [its] customers get patents.”13 Others¶ argue that examiners lack adequate technical information,¶
such as access to the relevant prior art,14 needed to perform a¶ rigorous examination.15 And others contend that the Patent
Office’s limited resources (which contribute to the well- publicized backlog)17 preclude a thorough review of applications.¶ 18¶
Yet, it would be unfair to cast all of the blame for failings ¶ in patent examination on the Patent Office. Several commentators¶ have
long argued that the substantive standards of patentability¶ are too low.¶ 19 Or, put simply, it is too easy to get a¶ (bad)
patent.20 This criticism deserves attention because adjusting¶ these standards is considered the principal tool for modulating ¶
the scope, frequency, and quality of patents.21 Indeed,¶ tightening the standards of patentability has been a major goal of
judicial efforts at patent reform. In a series of landmark decisions, reform-minded courts have trimmed the scope of patent-¶
eligible subject matter,23 made it harder to obtain (and easier¶ to invalidate) patents based on a lack of nonobviousness,24¶ and
reinvigorated the requirement that applicants provide an¶ adequate disclosure of the invention.25¶ Thus, it appears that raising
the substantive standards of¶ patentability could go a long way toward solving the quality ¶ problem. For instance, if the
standards are sufficiently high, an¶ applicant would have a decreased likelihood of getting a patent.¶ This might deter some
persons from filing applications altogether¶ because a robust examination would provide a disincentive¶ for those with low-
quality inventions to file.¶ 26 Ultimately¶ this would reduce the backlog, alleviate the overall strain on¶ Patent Office resources,
and (combined with various changes¶ within the agency)27¶ empower the examiner to conduct an even¶ more robust examination
of docketed applications. All of this would, at least in theory, improve the quality of issued patents.
12
Stem #1a – Subject Matter
The first hurdle one must step through in the eligibility process is the patentable subject matter eligibility
test. This test refers to what the invention is:
FindLaw 2013
What is patentable subject matter?
Patentable subject matter is any new and useful process, machine, article of manufacture or composition of
matter . Following is a non-exhaustive sample of patentable subject matter:
• Business processes
• Machines and electronics
• Fabrics and fabric designs
• Sporting equipment
• Medicines
• Computer hardware
• Computer software programs that have a "useful, concrete and tangible" result
• Man-made bacteria (by contrast, naturally occurring organisms are not patentable)
• Human genes that are identified and isolated are patentable because they are not naturally occurring when isolated.
• Business methods (e.g., FedEx's method of delivering packages overnight)
Subject matter eligibility is an intensely debated issue in patent law – it is currently too broadly defined to
be effective. The literature argues that the product of nature doctrine should be incorporated into the statute:
Parasidis 2010
[Efthimios Parasidis. Assistant Professor of Law, Center for Health Law Studies, Saint Louis University School of Law, A Uniform
Framework for Patent Eligibility, TULANE LAW REVIEW Vol. 85:323]jap
Congress has chosen to keep constant the categories¶ of subject matter that are eligible for patent
Since 1793,
protection.216 This is¶ significant, insofar as intense debate surrounding what subject matter¶ should be eligible for
patent protection has continued to the present¶ day.217 Moreover, despite ample opportunity to do so, Congress has not¶
incorporated the product of nature doctrine into the patent statute,¶ though the congressional record reveals acquiescence to the principles¶ of the
doctrine.218 As such, Supreme Court discussion of the doctrine¶ provides the basis for how the doctrine should be interpreted in¶ relation to the statute. Admittedly, much of the Court’s
discussion is¶ dicta, and thus not controlling authority. Nevertheless, the discussion ¶ provides significant insight into the theoretical foundation for the ¶ product of nature doctrine, and thus is
integral to an understanding of¶ the principles underlying the doctrine and informative in structuring a ¶ practical framework for delineating ineligible subject matter. ¶ Whereas patent law is not
exempt from general rules of statutory¶ interpretation, as with any issue of statutory construction, analysis ¶ must begin with the words of the statute.219 In interpreting the statute, ¶ one must
examine both patent law precedent and nonpatent statutory¶ interpretation precedent.220 As the Court has often remarked, unless ¶ otherwise defined, words are interpreted by their ordinary
and¶ contemporary meaning.221 Likewise, the judiciary “‘should not read ¶ into the patent laws limitations and conditions which the legislature¶ has not expressed.’”222 As a
number of cases highlight, Congress has elected to use¶ broad language to define categories of eligible
subject matter.223¶ Specifically, section 101 defines eligible subject matter as “any new¶ and useful process,
machine, manufacture, or composition of¶ matter.”224 The sole limitation to these four broad categories
arises¶ from the product of nature doctrine.225¶ Simply stated, a framework for defining eligible subject matter¶ need only encompass and define the four
categories outlined in the ¶ statute and the subject matter encompassed by the product of nature ¶ doctrine. Indeed, the recent Bilski opinion highlights this two-part¶ analysis.226 The
historical failure to arrive at an adequate framework¶ for delineating eligible subject matter stems from
the lack of clear¶ definitions for these terms, as well as the juxtaposition of the¶ additional statutory
requirements into determinations of subject matter¶ eligibility.227 As Justice Stevens explained, of central concern in determining¶ subject
matter eligibility for a particular invention is an understanding¶ of what the applicant seeks to protect.228 Coupled with this determination, ¶ however, one must first have a clear understanding
Past opinions have¶ failed to set these parameters adequately and
of the¶ parameters of eligible and ineligible subject matter.
appropriately because¶ they have defined key terms in relation to a particular invention or¶ technology
sector,229 or have arrived at a determination of subject matter eligibility through intuition or
analogy,230 rather than taking a¶ broader look at what factors are essential to something actually being¶
deemed a product of nature.
13
Subject matter eligibility standards must be reformed to ensure an effective patent system – this is the
biggest issue in patent debates:
Parasidis 2010
As recent cases and controversies reveal, there is an immediate¶ need to clarify patent law so as to advance resolution of its
most¶ fundamental question—clear identification of the types of inventions¶ that constitute patent-eligible
subject matter. From repeated¶ comingling of statutory requirements to blatant disregard for¶ controlling authority, courts and the Patent Office have significantly¶ deviated from
the obligation to permit patentable subject matter only¶ where an invention fits into a statutory category and does not violate ¶ the product of nature doctrine.446 Harmonizing
these core principles¶ requires a uniform framework that appropriately integrates the public¶ policy
underlying the patent statute and the theoretical basis for the¶ product of nature doctrine.¶ The Supreme Court has
consistently grounded patent jurisprudence ¶ in historical context,447 declining invitations to abandon long- standing doctrines even in the face of technological change.448 The ¶ same approach
should be adopted in defining patent-eligible subject¶ matter. The proposed framework is comprised of accurate characterizations ¶ of the statutory categories and straightforward questions that¶
properly capture the essence of each product of nature category. In¶ structuring technology-agnostic questions, my goal is to provide a¶ simple and flexible approach for determining whether a
The framework set forth in this Article seeks to recalibrate the¶ debate
particular¶ invention recites patentable subject matter.¶
surrounding how subject matter eligibility is analyzed and¶ determined.449 The framework not only
accurately identifies those¶ inventions that are products of nature, it properly bases patent¶ ineligibility on
the subject matter of the claims. The uniformity of the¶ methodology is evidenced by the similarity of the
questions across all¶ categories.450 Whereas the proposed questions represent one method of¶ defining
each product of nature category, to the extent application of¶ the methodology reveals any limitation,
alternative questions may be¶ adopted.¶ As the Supreme Court has highlighted, patent law does not serve¶
to propertize thoughts, scientific knowledge, or preexisting natural¶ principles or entities. Rather, the
function of patent law is to add to the¶ sum of useful knowledge, and its purpose is to provide an incentive
to¶ disclose information to the public.451 To the extent current patent doctrine produces unintended or
ill-suited consequences, Congress can¶ amend the patent statute so as to further the public policy goals¶
underlying the constitutional mandate.452¶ Defining the contours of patentable subject matter has proven
to¶ be one of the most difficult and controversial issues in patent law.453¶ The challenges raised by
emerging biotechnologies, coupled with a¶ general lack of understanding of science on the part of the
judiciary,454¶ require a practical and robust framework for determining patentable¶ subject matter. The
fundamental objective of the proposed¶ methodology is to guide patent doctrine down the proper path
towards¶ establishing a uniform framework for patent eligibility.
Lack of subject matter clarification makes the current patent system ineffective – clarification would
open the door for emerging biotechnologies
Parasidis 2010
There is a need to clarify patent law so as to advance resolution of its most fundamental¶ question—
delineating the categories of subject matter that are eligible for patent protection.¶ Coupled with the active role
the Supreme Court has taken in examining this precise issue, ¶ individuals and nonprofit organizations have galvanized a public
discourse through¶ constitutional challenges to the issuance of various biotechnology patents. Despite a statutory¶ framework
that has remained constant since 1793, courts have been unable to create a¶ comprehensive test for determining
patent-eligible subject matter that accurately embodies the¶ foundational principles that underlie the
federal grant of patents. I argue that the proximate¶ cause of the lack of an appropriate framework is the
failure of courts to clearly define the¶ statutory categories and the absence of a technology-agnostic method of
analyzing whether an¶ invention claims ownership over a “product of nature.” This Article sets forth a uniform¶
14
framework that addresses patent-eligible subject matter through the creation of a practical¶
methodology that focuses on these two principles. The advantages of the proposed framework¶ are
highlighted through the application of the framework to traditional inventions and emerging¶
biotechnologies.
This article elaborates on this proposed process for about 90 pages, so I will stop the cards here, but it
definitely shows that the literature is extensive and solvency advocates would not have to be contrived.
Narrowing subject matter eligibility could also allow for “patent free zones” in certain fields. Software,
business sectors, and pharmaceuticals are all fields where patent trolls run amuck because patents are too
difficult to wade through – this kills innovation in these sectors:
Dourado 3/18
[Eli Dourado is a research fellow at the Mercatus Center at George Mason University with the Technology Policy Program.
http://www.usnews.com/opinion/blogs/economic-intelligence/2013/03/18/congress-must-enact-more-thorough-patent-reform]jap
Silicon Valley firms have complained about "patent trolls" for years. As nonpracticing entities, trolls acquire patents but don't
produce anything with them except lawsuits against companies that may (or may not) infringe on their patent portfolios. In
recent years, trolls have even become a tool that practicing companies use to stifle competition. By transferring a patent to a troll
and retaining a license, firms can inflict legal pain and distraction on their competitors.¶ To remedy this problem, Reps. Jason
Chaffetz, a Utah Republican, and Peter DeFazio, an Oregon Democrat, have reintroduced the SHIELD Act, which would require
nonpracticing entities who lose such lawsuits to pay for their adversaries' legal fees. While the SHIELD Act may provide some
modest relief for Silicon Valley firms against spurious lawsuits, it doesn't solve the real problem that the Valley and other industries
have—that patents do more harm than good in their particular area of innovation.¶ There is good evidence that patents spur
innovation in some industries, like chemicals and pharmaceuticals. It is easy to find out if a particular molecule has already been
patented, and therefore easy to avoid infringement. And to create a new, not-yet-patented molecule, it is not usually necessary
to license very many other patents.¶ In contrast, to undertake other kinds of innovation, like in software or business methods, it is
much more difficult to know when you are infringing;on someone else's patent. Patents in these areas are vaguely worded, hard
to search for, and subject to honest, mistaken infringement. Furthermore, some products, such as smartphones, require the
assembling of thousands of patent licenses, sometimes from competitors. The cost of negotiation and strategic maneuvering is
significant. While the SHIELD Act is probably better than nothing, it is time for Congress to consider more thoroughgoing
reform of the patent system. In doing so, they should consider the two factors discussed above: 1) how easy is it to avoid
unintentional infringement; and 2) could the patent slow down sequential innovation?¶ One good reform would be to simply
eliminate patents in areas that fail these two tests. This would mean that software algorithms, business methods and even
electronics would be patent-free zones. Innovation would be driven by the desire to get the best products on the market first,
not by grants of monopoly that slow down other potential innovators. Specific software products would still be protected by
copyright law. Meanwhile, patents could be retained in pharmaceuticals, materials science and other chemicals, since these
areas pass the two tests above.
Here is more evidence about the software sector. Patent laws hinder innovation in the software sector –
allowing patent trolls to squash the market. Major reforms are needed to fix what is broken:
AFP 2012
[Electronic Frontier Foundation calls for U.S. patent reform, Agence France Press, June 19,
http://www.rawstory.com/rs/2012/06/19/electronic-frontier-foundation-calls-for-u-s-patent-reform/]jap
SAN FRANCISCO — Internet rights group Electronic Frontier Foundation (EFF) on Tuesday launched a campaign to reform
the US patent system, which it argued has been “weaponized” to attack inventors. ¶ “The software patent system is broken,” EFF
staff attorney Julie Samuels said in a release.¶ “Patents are supposed to help promote new inventions and ideas, but software
patents are chronically misused to limit competition, quash new tools and products, and shake down companies big and
small.”¶ San Francisco-based EFF called on Internet users, inventors, academics and activists to join forces to fix flawed patent
rules.¶ Seven proposed changes and an invitation for people to endorse the effort and provide feedback were posted online at a
15
Defendinnovation.org website.¶ Recommendations included trimming the life of a patent from 20 years to five and having
Congress examine whether software patents help the economy at all.¶ The EFF also suggested letting winners in lawsuits
recover legal costs from losers as a way of discouraging “patent trolls” from pursuing tenuous claims. ¶ The term is a reference
to people or companies that get patents and sit on them with the intent to one day squeeze money out of inventors who actually
put the innovations to use.¶ “The US Patent Office is overwhelmed and underfunded, and issues questionable patents every day
— patents that hurt innovators and consumers alike,” said EFF activism director Rainey Reitman.¶ “It’s time for the technology
community to work together to create a blueprint for reforming the broken software patent system.”
16
Stem #1b – Utility
Only inventions applying for a utility patent (there are three types of patents, one being a utility patent –
see the helpful definitions section) must meet the pass the utility eligibility test. In order to qualify, an invention
must prove that it is useful:
FindLaw 2013
What qualifies an invention as having " utility" or being useful ?
All utility patents must demonstrate that they are useful now, not just potentially useful, or at least have a sound theoretical
basis for being useful. For example, you may be issued a patent for a process that speeds a manufacturing line based on past
processes that have proven successful, but may not be awarded a patent for a drug the effectiveness of which has no scientific
backing. Remember that only utility patent applicants are required to prove the usefulness of the invention.
Many anti patents authors argue for raising utility requirements because patents kill scientific
development and create private monopolies
Reynolds 09
(Graham, Assistant Professor, Faculty of Law, Dalhousie University, Halifax, Nova Scotia. BA (Manitoba), LLB (Dalhousie), BCL, MPhil (Oxon), “Nanotechnology
and the Tragedy of the Anticommons:
Towards a Strict Utility Requirement”, http://www.uoltj.ca/articles/vol6.1-2/2009.6.1-2.uoltj.Reynolds.79-114.pdf, Accessed 4-22-13, LKM)
The second standard represents a strict utility requirement. Advocates of a strict utility requirement take a less
optimistic view of the ability of patents to support innovation. While recognizing the need to provide incentives
for research, they state that in certain circumstances, granting patents for basic research will stifle rather than
support innovation. Patents can stifle innovation in two main ways. First, a broad patent encompassing basic
research may allow a company to block off an entire area of scientific development. Second, granting patents
for basic research may result in the creation of an anticommons. If individuals are unable to bundle the multiple
exclusionary rights in the anticommons, innovation may be stifled. As a result, in order to guard against those
situations where patent protection stifles rather than supports innovation, advocates of a strict utility
requirement argue for more limited patent protection.
17
Stem #1c – Novelty
In order for an invention to pass the novelty test, it must not currently be a patented invention. This
applies to an invention in the United States or a foreign country. The novelty rule also encompasses the public
disclosure rule, as there must be no prior art published about ones invention:
FindLaw 2013
What does it mean for an invention to be "novel"?¶ To
be novel, an invention must not be known or used by
anyone else in the U.S. and must not be patented or described in a printed publication in this or a foreign
country before the date of the patent application. Basically, if there's another invention out there before your patent
application that incorporates all the same elements as your invention, then your invention is not novel and the patent will be
denied.¶ Additionally, the USPTO has a rule that states that if the invention of described in a printed publication in the U.S. or
a foreign country, or in public use or on sale in the U.S. more than one year prior to the date of the patent application, the
patent will be denied. So, if any of these three things happen—1) on sale, 2) public use, or 3) printed publication one year prior
to the application date, you can't apply for a patent.¶ As a result of the "one-year rule," there is a possibility that you could
destroy the novelty of your own invention by delaying the application. For example, if you have someone manufacture or use your
invention to determine if it's patent worthy and end up applying for after a year has gone by, the application may be denied as not
being novel. If you believe this could be a problem you should consult a patent attorney because there are different rules regarding
"experimental" uses of inventions that could get you around the one year rule.
Currently, the novelty standard is too broad with a focus on embodiment over idea – focusing on idea
narrows the awarding of patents and is more economical:
Chiang 12 [Tun-Jen Chiang, Assistant Professor of Law, George Mason University School of Law, "DEFINING PATENT SCOPE
BY THE NOVELTY OF THE IDEA," 2012 Washington University Law Review 89 Wash. U. L. Rev. 1211, lexis]cd
Patent law's traditional disclosure theory focuses on the embodiment disclosed by the specification. Disclosure theory is incoherent
because the same disclosed embodiment can always be characterized at many equally plausible levels of abstraction. Courts then lack any
principle for choosing.¶ The incoherence of disclosure theory is confirmed by the fact that the legalistic rules that emanate from the theory become self-contradictory. In
both the abstract idea doctrine and the § 112 case law, directly contradictory cases stand for either a principle that patentees may claim undisclosed future embodiments,
or that they may not. A citation to one line or the other can justify any outcome. The result is that courts have been forced to pick and choose using extra-legal
mechanisms, such as by surreptitiously using intuitions about the proper economic balance between incentive benefits and monopoly costs. While such direct economic
balancing could in theory produce good economic results, in practice the lack of adequate information dooms the approach to failure, at least in most cases and for most
patents.¶ [*1267] The solution I propose in this Article is to recognize that the patentee's contribution to downstream progress is not an
embodiment but an idea. A patentee's moral claim to royalties from subsequent improvers lies in the fact that subsequent improvers presumably derive principles
and ideas from a patentee's pioneering work, not on replication of the patentee's embodiment, which is usually rudimentary (e.g., in the form of a barely-flying airplane
or a barely-working telephone). It follows that patent protection should extend to all future uses of the patentee's idea, even when the later
infringing embodiment is a much-improved airplane or a much-improved telephone. This moral claim can be stated in economic terms: the core
purpose of patent law is to protect against misappropriation of information goods, and this means the idea and not the embodiment.¶ But in order to be fairly
credited as the inventor of the idea and obtain a monopoly covering all future implementations of that idea, a patentee should be
required to be the first to invent the idea in addition to merely creating one embodiment of it. Inventing an idea means being the first
to articulate the idea. This standard differs radically from patent law's conventional novelty standard, which focuses merely on
whether the patentee is the first to build one embodiment. ¶ The gap that emerges in current law is that the idea that the patentee enforces against
downstream improvers may not have originated with the patentee at all, but was itself taken from upstream inventors. This is made possible by the enablement
requirement for prior art, which excludes all work by prior inventors who did not create embodiments. But if the patentee's downstream contribution is deemed to be the
idea and not the specific embodiment, determining the patentee's contribution vis-a-vis upstream inventors should be done on the same terms. In short, the patentee
should be entitled to the insight that he was the first to articulate.¶ A key point is that every breakthrough invention necessarily contains a new and
non-obvious insight, since that insight is what enables the patentee to succeed when all prior attempts failed. The Wright brothers did
not invent the idea of airplanes, which had long existed. But they did invent the idea of using rudders for flight control, which then
enabled them to build a successful airplane embodiment when all prior attempts failed . The implication of my standard is that the
Wright brothers would receive a patent for their breakthrough idea . This also rebuts the science fiction objection that my proposal would result in no
patent for the inventors of a hyperdrive: like the Wright brothers developing a new insight to achieve an old dream, the future inventor of a working hyperdrive will
18
need to develop a new insight to achieve faster-than-light travel. My standard would then protect the as-yet-unknown insight.¶ [*1268] Adopting this standard has
three major advantages. First, it provides a coherent principle to select among competing levels of abstraction. The Wright brothers are not
able to patent all airplanes, because they did not invent the idea of airplanes. But neither are they confined to their specific embodiment of a barely-flying wooden
glider. Instead, they are given a reasonable middle ground. The second advantage is that my theory provides a much better explanation for actual
historical outcomes than the incoherent disclosure theory. In reality, the Wright brothers received protection that closely matches what my theory would
predict, as did Samuel Morse and Alexander Graham Bell. Under the traditional disclosure theory, by contrast, the seeming contradiction between Morse and Bell has
puzzled patent lawyers for generations.¶ The third advantage is that the middle ground provided by my proposal makes a great deal of
economic sense. Because the economic role of patents is to protect against misappropriation of information goods, protecting the
breakthrough insight comes very close to the economic purpose of the patent system. Of course, as with any legal rule, some amount of
over-and under-inclusiveness error is inevitable. I do not claim that my rule will produce optimal economic outcomes every time, but only that it
produces reasonable outcomes, and that there is no readily administrable legal rule that does better. A direct economic balancing
approach might in theory achieve even more precision in achieving good economic outcomes, but in most cases it would not be
administratively feasible.
Novelty allows for any innovation to be patentable – a model of overarching ideas over small
innovations is more narrowing and optimal
Kultti and Miettunen 8 [Klaus Kultti, University of Helsinki - Department of Political and Economic Studies, and Antti T.
Miettunen, On the Optimal Novelty Requirement in Patent Protection (June 2008). Available at SSRN:
http://ssrn.com/abstract=1098850 or http://dx.doi.org/10.2139/ssrn.1098850]cd
Novelty value is one of the legal requirements for a patentable innovation¶ but it has been given relatively little attention in the literature. It is¶ often abstracted
away by assuming that any innovation is patentable. We ¶ study the optimal novelty requirement in a model where ideas are scarce, ¶
and where turning an idea into an innovation requires resources. We show¶ that all innovations should not be patentable but it is
optimal to have a¶ non-zero novelty requirement. The equilibrium investment in R&D is an¶ inverse-U-shaped function of the novelty requirement.
19
Stem #1d – Nonobviousness
Nonobviousness is the largest portion of the eligibility section because it is the most contested and
subjective in the literature. Because it is subjective, heightened standards are needed to ensure an easier review
process. Nonobviousness refers to whether an invention can be deemed the next step in innovation and therefore
denied a patent:
FindLaw 2013
How is something determined to be "non-obvious"?¶ The non-obviousness test is the most difficult obstacle in the patent
review process. The question the USPTO asks is: knowing what's out there, is the invention an obvious step? If the invention is
simply a combination of several different prior patents, it may be deemed an obvious next step, and therefore denied.¶ The
USPTO will look at "prior art" (a term meaning the state of technological knowledge before the patent application to
determine whether the invention is "obvious to a person having ordinary skill in the art." There must be an inventive leap. In
other words, the invention must have a distance between it and the prior art. ¶ In addition to examining prior art, the USPTO also
looks to secondary considerations to shed light on the level of obviousness at the time of the invention. For example, if your
invention is a commercial success, that may indicate that there was nothing else in the market like your invention and that others failed
to achieve the same result. Or if there was a long period of time between the relevant prior art and the patent at issue, it may indicate
that the patent is not obvious, otherwise there would have been other similar products that tried to fill the void. ¶ Non-obviousness is
the most hotly contested portion of the patent review process because it's the most subjective. One patent examiner may look
at an invention and think it's merely the next logical step up from prior art whereas another examiner may look at the same
prior art and think that the invention shows an inventive leap and is therefore not obvious.
While subject matter eligibility gives affirmatives access to patent free zones, nonobviousness allows the
United States to access the international market of generic pharmaceuticals:
Chen 2013
[Molly, J.D. Candidate 2013, Vanderbilt University Law School; M.S. 2010, Syracuse University; B.S. 2006, B.A. 2006, Rice
University, Reconsidering the U.S. Patent System: Lessons from Generics, Vanderbilt Journal of Transnational Law: Vol 45:1249,
page 1249-1273]jap
Scholars and pharmaceutical industry representatives¶ consider the United States a worldwide leader in¶
pharmaceutical innovation. However, the recent expansion of¶ the international generics market has threatened
the strength of¶ the U.S. pharmaceutical industry. The pressure has led to the¶ U.S. market's overreliance on
a patentability standard that¶ blocks generics competition without contributing substantially¶ to the state
of the art. This Note contrasts the U.S.¶ nonobviousness standard and patent linkage regime with those¶ of generics
giants India and Israel and considers the effects of¶ these policies on the relevant national and international¶ generics industries. This Note proposes that the United
States¶ revise its current approach to patent protection of¶ Pharmaceuticals by adopting a heightened
nonobviousness¶ standard and lengthening the available patent-term-restoration¶ period through modifications to the linkage regime. Only by¶ balancing these two
legal mechanisms will the United States ¶ maintain its status as the international leader in blockbuster¶
Pharmaceuticals.
Increasing specifics on obviousness pulls the US into international compliance and markets which is key
to international trade regimes:
Chen 2013
20
page 1249-1273]jap
Many people criticize brand-name drug manufacturers in the U.S. pharmaceutical industry for
monopolizing drug therapies, thereby limiting global access to life-saving drugs.^ The United States
encourages high-risk research a n d development i n t h e industry b y ensuring strong intellectual
property protection of pharmaceutical technologies domestically through (1) a relatively low standard of
nonobviousness for patentability, and (2) the ability to extend the life of a patent beyond t h e standard term. 2 These pro-
patent tools a r e intended to reduce th e inherent risks associated with costly drug development, motivating U.S. manufacturers to
continue advancing in the field. ^ Indeed, the United States has evolved into a pharmaceutical giant, with its
manufacturers today producing brand- name drugs and technology available in the international
marketplace. * IVieanwhile, patient populations in less wealthy countries often cannot afford to pay the
prices necessary to support the costs of developing pioneer pharmaceutical therapies. ^ Thus, many believe
that the U.S. nonobviousness standard" and patent- term-extension program need readjustment.^
In 1995, members of the World Trade Organization (WTO) signed the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS), which sets forth standardized measures for securing and enforcing patent
protection.^ The agreement seeks to promote international trade while recognizing the "special needs" of
developing countries.» Among other considerations, TRIPS requires that a patentable invention be new,
involve an "inventive step," and be "capable of industrial application."^" IVIore controversially, the
agreement allows developing countries to impose compulsory licenses on pharmaceutical patents, thereby
giving these countries a means to provide medication to citizens that are unable to afford brand-name
medications.!! A later WTO agreement extended this policy, allowing compulsory licensees to supply
drugs to foreign markets.!2
Differences in patent policies between the US and other countries kills relations and TRIPS agreements:
Chen 2013
page 1249-1273]jap
Despite widespread adoption of TRIPS, there remains

great variation among countries' patent policies. On one end,
the United States, by supporting "follow-on" patents and evergreening practices, has allowed
pharmaceutical giants to effectively extend their monopolies on brand-name drugs. !3 Furthermore, the country
has implemented a linkage regime that requires burgeoning generics manufacturers to enter into high-cost litigation proceedings in
order to move their product to market.!* As generics manufacturers gain an increasing presence in the
international marketplace, U.S. pharmaceutical companies have relied on these pro-patent tools to shift
focus away from research and development toward merely maintaining a status quo and protecting
existing technologies against follow-on patents brought by a competitor.!^ However, this system is not self-
sustaining and ultimately requires a shift back toward a steady output of blockbuster products.
Other countries, however, do not necessarily endorse follow-on patents and patent linkage regimes. For example, India has firmly
rejected a patent linkage regime,!« and the country recently upset U.S. pharmaceutical company Bayer
when it issued its first compulsory license.!'' And despite Israel's implementation of a patent linkage
regime, its patent-term restoration is inadequate. !* The variation in patent systems creates tension
between countries and frustrates the purpose of the TRIPS agreement.
The low bar for obviousness allows for a leniency in pharma patents filing called follow on patents.
Instead of new innovative patents, the pharma industry “evergreens” minor changes because of the lax standards
21
in obviousness. The only solution is to raise the bar so that the generics industry is not stifled and true
innovative ideas are created for the market:
Chen 2013
page 1249-1273]jap
lenient approach toward patentability and the introduction of the linkage regime have
In the United States, the
stifled entry of generics into the market and have led to the development of the world's most powerful
brand pharmaceutical industry.!!* By lowering the bar for nonobviousness, whether through the application of secondary
considerations or through a direct, policy-driven exception for the pharmaceutical sector, the United States has become a unique source of follow-
on patents, Ü^ The strategy for filing follow-on patents, also known as evergreening, results in an
effectively perpetual extension of a monopoly on the pioneer patent.¶ Follow-on patents are strategically
used to stunt competition ; such patents often are filed in anticipation of the release of generics into the market, Ü" The trend proves that brand-name pharmaceutical companies
can abuse the system by lengthening their monopolies and prolonging dominance in the market, Ü'' The pharmaceutical-specific, flexible approach to determining obviousness is intended to
evergreening turns innovation into a race
encourage research and innovation, but there is a risk that the standard is actually self-defeating, Ü*The practice of
to secure even the most minor patents, even if a generics manufacturer is merely reserving a place in line
and not planning on using its own invention until an original blockbuster patent expires .¶ Scholarship has indicated that
the U.S. pharmaceutical industry is suffering from "a lack of genuine innovation ." Ü^ Patent overprotection
has led brand-name companies to focus on maintaining patent protection of existing drugs rather than
investing in new therapies.!2" However, this approach only works in the short term; long term stability and growth of the U.S. pharmaceutical industry requires the regular
deployment of blockbuster drugs.!2!¶ Despite the need for new, innovative drugs in the United States, there was a 3.8
percent decrease in blockbuster sales from 2000 to 2008. !22 Although the development of screening technologies has improved, only three out of
every ten drugs that are brought to market actually generate enough revenue to meet or exceed the average cost of research and development.!23Because the average gestational period for a
drug is approximately thirteen years,!2* there is a narrow window of about eight years before the patent expires to recoup the cost of innovation.!25 Therefore, the structure of the U.S.¶ patent
The pharmaceutical sector suffers from both too much and not enough
law system is not currently optimized for inducing innovation.
protection, squelching incentive to seek out the truly blockbuster ideas necessary to keep the industry añoat.
It works- more stringent actions lead to more innovation

Chen 2013
page 1249-1273]jap
Here, whether there was any indication of a probability of success should still be determined from the point of view of the PHOSITA,
with art in this case referencing pharmaceutical technology. The results of adopting this test are that a manufacturer could realize the
particular frustrations of optimizing a drug depending on the use of different nonactive ingredients, but an inventor could not evade
obviousness simply by pointing to the unpredictability of the combination or by suggesting that the nonactive ingredient was in a
different pharmaceutical context, so long as it was applied in some pharmaceutical context. Although this
proposal heightens the nonobviousness standard through the "reasonable probability of success" test, the potential combinations of
prior art should still be restricted to those that fall within an analogous field. Accordingly, Israel's catch-all approach of looking to
even remote fields for prior art should not be followed.
This heightened nonobviousness standard would prevent patent owners from evergreening their existing patents by obtaining follow-
on patents with therapeutically insignificant contributions to the state of the art. There would still be a hmit to the risk involved in
pharmaceutical research and development through the general nonobviousness PHOSITA standard; however, the patent owner should
now have to focus on continuing to innovate rather than
simply blocking generic drugs from entering the market. Ultimately, this will spur genuine innovation and lift the industry out of its
current complacent position. After all, the purpose of the patent system is to reward individual innovation while ensuring the
continued advancement of the technical field. The goals of the patent system are only truly realized if the scientific community has
incentive to continue developing the field. At the same time, the increased standard should lead to the greater distribution and
affordability of drugs in the marketplace.!''"
Reforms is vital for Innovation for actually being successful

Chen 2013
22
page 1249-1273]jap
Scholars criticize the current U.S. patent linkage regime because of the debilitating effect of patent-term restoration on the pursuit of
novel drugs. !»* However, such criticism is unwarranted. An assessment of the business strategies of U.S. pharmaceutical companies
reveals that the most successful companies focus their resources on the development of blockbuster drugs in order to retain their share
of the market and recover the costs of research and development. !»5 Follow-on patents, while certainly a recognizable portion of a
typical company's intellectual property, can just as easily be obtained by generics manufacturers engaged in research protected by the
Hatch-Waxman Act.!»^ Therefore, implementation of a patent
linkage regime is unlikely to result in an increased number of follow- on patents.
Furthermore, the potential innovation-inhibiting effects of patent-term restoration are mitigated by the heightened standard for
nonobviousness. Under the proposed burden-shifting standard, fewer patents for follow-on "inventions" should be granted. Further,
empirical studies suggest a nexus between public health policy and patent policy, illustrating the importance of a patent linkage regime
in the United States.!»'' Congress has determined that the extension of patent terms for pharmaceutical technologies is necessary to
promote innovation in the field.!»» Thus, just as a limited monopoly is
warranted in exchange for the disclosure of protected work, an extended term is necessary to encourage continued investment in
research and development in a field where such investment comes with very high risk.!»^
Reforms are vital to court and separate agency decisions- current law is too difficult to be deciphered
Chen 2013
page 1249-1273]jap
The Supreme Court has been reluctant to endorse any bright- line rules for nonobviousness and has paved the way for an industry-
specific approach.2'' For example, in KSR International Co. v. Teleflex Inc.,^^ the Court rejected a strict application of a bright-line
rule because "[r]igid preventative rules that deny factfinders recourse to common sense . . . are neither necessary
under our case law nor consistent with it." 2^ Following KSR, the Court of Appeals for the Federal Circuit
has instructed that "[e]ach case must be decided in its particular context, including the characteristics of the science or technology."^*
Although some scholars argue that the U.S. nonobviousness standard is changing, it is unlikely that the Federal Circuit's 2009 decision
in In re Kubin^^ will result in a heightened standard of obviousness throughout the pharmaceutical sector.^^ In In re Kubin, the
Federal Circuit upheld a Board of Patent Appeals and Interferences (BPAI) decision, finding the claim for a protein binding site to be
obvious.^^However, the case will likely not have a far- reaching impact outside of the narrow field of gene sequencing. The appellants
failed to argue, and the court failed to consider, the difficulty of locating the range of DNA sequences encrypting the binding site.^*
Instead, the court held that the binding-site sequence was an inherent part of the full protein sequence. ^^ The BPAI considered the
conventional techniques practiced in the field of biotechnology in determining obviousness, but failed to properly analyze the
obviousness of the claimed invention—the specific binding site.^" Therefore, the In re Kubin decision arguably does not diverge from
the Federal Circuit's practice of applying an industry- specific approach to obviousness. In sum, pharmaceutical inventions in the
United States must only pass a low hurdle for nonobviousness to be patentable. Courts in the United States will apply an industry-
specific approach and determine that a pharmaceutical invention is nonobvious even if it is obvious to try.^'' The lax standard for
nonobviousness is intended to incentivize innovation by increasing protection and minimizing risk to pharmaceutical companies.
However, in reality, the standard enables pharmaceutical companies to merely patent trivial adaptations of existing drugs, distracting
companies from focusing on the development of new products and the continued push of drugs through the pipeline.
Restrictions on patent law undermine innovation and action in multiple agencies including
pharmaceuticals- relaxing restrictions
Chen 2013
page 1249-1273]jap
India has a relatively high standard for nonobviousness and applies the standard strictly toward pharmaceutical inventions.^* India's
emphasis on a significant innovative step indicates the country's reluctance to monopolize drug therapies.^^Instead, the country's
pharmaceutical market is built around the generics industry.*" Although India's patent system prevents the extended monopoly of
pharmaceutical products through evergreening, which benefits its consumers, its strict patentability requirements would be overly
burdensome on a pharmaceutical industry focused on high-risk development of breakthrough drugs.
Prior to the TRIPS agreement, India did not provide patent protection for pharmaceutical products. *! Instead, India only protected the
drug manufacturing process, and only for up to a seven- year term.*2 India's first independent Patents Act sought to create a domestic
pharmaceutical market and decrease the cost of medication. *3 Thus, the Patents Act turned away many foreign
23
pharmaceutical companies and resulted in a larger market share for domestically owned companies. ** India fiourished at reverse-
engineering drugs and selling them both domestically and in other developing countries that did not honor patent protection for
pharmaceutical products. *^ However, once TRIPS became fully effective in India in 2005,*« the country was obligated to honor
patent protection of pharmaceutical compositions.*'' India's Patents Act requires that, to satisfy the nonobvious standard, an invention
be nonobvious and either involve the advance of technology or be economically significant.** However, the Patents Act does not
specify the standard that should be used to determine whether technology is advanced or whether the invention is economically
significant. *" While scholars have criticized the definition as "vague and arbitrary," ^o it appears that India
has successfully implemented a high standard of nonobviousness that will enable judicial flexibility in protecting competition
and driving down market costs.^!
When India amended its patent law to comply with the TRIPS agreement, it also added a controversial provision intended to curtail
evergreening of pharmaceutical patents.^^ The provision, § 3(d), bars companies from patenting new forms of known substances
unless the new form demonstrates a significant enhancement in efficacy.5* In January 2006, the Patent Controller in Chennai used §
3(d) in refusing to grant pharmaceutical manufacturer Novartis a patent on its beta crystalline salt form of an existing anti-cancer drug.
5* Novartis argued that the more stable salt form could be absorbed more easily into the bloodstream, resulting in an increase in
bioavailability of up to 30 percent.^^ The Assistant Controller saw the difference as "only" 30 percent and ruled that the free base
form could be used wherever the salt was used.^^ Novartis has challenged the ruhng, arguing that § 3(d) of the 2005 Patents Act does
not comply with TRIPS.5'' The Supreme Court of India's decision, due later this year, will determine the country's position on the
patenting of new forms of already known drugs. Until then, it remains unclear what constitutes a significant enhancement in efficacy.
India's approach to obviousness can provide guidance for the United States as it attempts to address the decreasing production in its
pharmaceutical sector. Although a large degree of judicial discretion would probably not work well in the U.S. pharmaceutical
industry, where the high-risk nature of the industry gives companies reason to shy away from projects that may not win patent
protection, a heightened standard that leaves some room for judicial discretion could be used to push the pharmaceutical sector back
toward higher- risk research investments.
Fixing the Nonobviousnes Standard will massively increase patents used

Chen 2013
page 1249-1273]jap
The nonobviousness standard applied by the courts should not be loosened with respect to the pharmaceutical field, but instead should
become a uniform approach across the entire spectrum of inventions. The standard in fact already takes account of the need for
fiexibility from field to field, as it is judged with respect to a person having ordinary skill in the art. Anything looser than this
approach to nonobviousness would increase the number of patents granted. Granting more patents would be an issue because patents
are difficult to contest in court due to a court's presumption that all patents are valid.!^^The heightened nonobviousness standard also
should include a burden-shifting mechanism that requires the applicant to demonstrate not that the result was merely unpredictable,
but that there was no suggestion of success. This standard, when applied in conjunction with a revised patent-term- extension regime,
should strengthen the integrity of the patent system by ensuring that patent protection is restricted to legitimate
innovation.
Reforming the nonobviousness standard increases effectiveness of the patent agency

Chen 2013
page 1249-1273]jap
Despite the promise provided by a heightened nonobviousness standard, a restriction on patentability alone would likely cause
substantial harm to the U.S. pharmaceutical sector. Alone, such a standard would strip the U.S. market of a significant portion of its
intellectual property protection and open the door to foreign generics competition, driving down prices to a point where U.S.
manufacturers
cannot compete. And if U.S. companies are unable to quickly recoup their losses by releasing new blockbuster drugs, a heightened
standard might ultimately lead to the suppression of innovation. Therefore, the heightened nonobviousness standard should be
implemented in conjunction with a powerful patent-term-extension program. The coupling of these two tools would weed out patents
that hamper the industry and instead "promote the progress of science."!*"
Although a patent linkage regime and a corresponding patent- term-extension program are critical to support an innovation-driven
pharmaceutical industry, particularly one that is restricted by the increased scrutiny of a strict nonobviousness standard, the United
States should not follow in the footsteps of Israel.!*! Although Israel has both a patent Hnkage regime and patent-term-restoration
program, both programs are lopsided in favor of generics manufacturers. !*2 While Israeli pharmaceutical manufacturers are
24
given a safe harbor to execute experimentation for the development of generics, pioneer patent holders are left with a shadow of a
version of the extension program currently in place in the United States.!** Such a model might work for a country that is primarily
invested in the generics industry, but the model is inadequate to support the tremendous risk of pioneering discovery. If anything, the
United States might be better off with a patent-term-extension policy that provides an even lengthier extension than that already in
place in
order to balance the competing interests of a heightened nonobviousness bar.
Reforms key to develop new patent developments and effectiveness

Chen 2013
page 1249-1273]jap
Conversely, hnking regulatory rights to weak patents is detrimental to the patent system because it blocks generics from entering the
market without adding the benefit of greater innovation. Instead, the patent owner is awarded for relatively insubstantial contributions
to the field. An ideal policy for avoiding this situation would not be to limit or eliminate the patent linkage system, but instead to
simply restrict patentability of weaker patents. Under such a system, pioneer firms would still be motivated to continue their search for
blockbuster drugs with the understanding that they would receive an extended monopoly that prohibits generics companies from
marketing similar products.
With the two policies operating in tandem, more drugs would be available for release into the generics market, but companies that
made substantial investments in research and development would be rewarded for their efforts with the prolonged protection of their
blockbuster drugs. Without these measures, companies are not motivated to engage in high-risk research. Thus, a system that
embraces a heightened nonobviousness standard similar to that of
India's and Israel's inventive step requirements, while also maintaining a patent linkage system, would best achieve the goals of
promoting the success of a worldwide pharmaceutical market.
Creates new developments

Chen 2013
page 1249-1273]jap
The United States should modify its current approach to patent protection of Pharmaceuticals. The solution proposed by this Note
provides for a stricter nonobviousness standard for determining patentability—one that requires more than merely some change away
from the prior art, even if unexpected. However, raising the nonobviousness bar alone would only result in damage to the
pharmaceutical industry, which would not be able to profit quickly enough from its narrowed pool of patents to recoup costs incurred
during research and development. Therefore, this Note also proposes
even greater protection through the patent-term-restoration program established under Hatch-Waxman.
By limiting patentability of weaker pharmaceutical patents while simultaneously strengthening protection for those patents that
contribute more substantially to advancing the state of the art, the proposed changes would best further the goals of pharmaceutical
innovation. The proposed policy would shift the volume of patents in favor of those with a true spark of invention while remaining
sensitive to the risk-mitigating needs of the industry. As a result, the United States would maintain a stronghold in the pharmaceutical
sector, and consumers and generics manufacturers would benefit from the increased availability of low-cost drugs resulting from
incremental changes to the original patents. Only by maintaining a balance between these two patent policies can the U.S.
pharmaceutical market resume its renowned development of blockbuster drugs.
25
26
Stem #2: Amount of Patents
Stem #2: substantially reducing or eliminating the amount of patents issued in the United States
This wording provides access to two core issues in the literature about patents. First, while many advocates argue that
reducing patents is very important, others say that patents should be eliminated entirely. Because both of these recommendations are
in the same direction (restricting patents), it does not make sense to make eliminating patents
Large lit exists on both sides for abolishing the system

In 1958, the distinguished economist Fritz Machlup in testimony before Congress famously said: “If we did not have a patent
system, it would be irresponsible, on the basis of our present knowledge of its economic consequences, to recommend
instituting one. But since we have had a patent system for a long time, it would be irresponsible, on the basis of our present
knowledge, to recommend abolishing it.” A proposal to abolish patents may seem “pie in the sky.” Certainly, many interim
measures could be taken to mitigate the damage caused by the current system: for example, properly enforcing the standard
that patents should only be granted for non-obvious insights; requiring genuine disclosure of working methods in patents (the
opposite of certain recent “protectionist” proposals to institute secret patents); and allowing an “independent invention”
defense against claims of patent infringement. But why use band-aids to staunch a major wound? Economists fought for
decades—ultimately with considerable success—to reduce restrictions on international trade. A similar approach, albeit less
slow, should be adopted to phase out patents. Because policy proposals are often better digested and metabolized in small bites, here is
our list of small reforms that could be easily implemented. ¶ 1) Patents are time limited, which makes it relatively easy to phase
them out by phasing in ever shorter patent durations. This conservative approach also has the advantage that if reducing
patent terms indeed has a measurable¶ effect on innovation, the process can be reversed.¶ 2) Stop the rising tide that, since the
early 1980s, has extended the set of what¶ can be patented and has shifted the legal and judicial balance substantially¶ in favor
of patent holders.¶ 3) Because competition fosters productivity growth, antitrust and competition¶ policies should seek to limit
patents when they are hindering innovation. This policy may be of particular relevance for high-tech sectors, from software to
bioengineering, to medical products and pharmaceuticals. ¶ 4) Current international trade negotiations that affect patents often
occur as part of either the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which was signed in
1995 as part of the World Trade Organization negotiations, or as part of the World Intellectual Property Organization, an
agency of the United Nations. The nature of these agreements and organizations is well indicated by the use of the propaganda term
“intellectual property” in their titles. In both cases, these talks are often focused on how to prevent ideas from high-income
countries from being used in low-income countries—what we would characterize as essentially a neo-mercantilist approach
toward free trade in goods and ideas. We should be highly cautious about this agenda. Within a couple of decades, the “balance of
trade in ideas” between the US and European economies and emerging economies in Asia might easily equalize or reverse. Engaging
in “mercantilism of ideas” may seem favorable to certain large US firms now, but such rules may become costly to the US
economy if they are applied to protect patents held in the future by producers in the now-developing Asian economies.¶ 5) If
the US economy is to have patents, we may want to start tailoring their length and breadth to different sectoral needs.
Substantial empirical work needs to be done to implement this properly, although a vast legal literature is already pointing in
this direction. ¶ 6) Patents should not be granted based only on technological insights, but should also take economic evidence
into account. For example, if an invention is easy to copy or has a high fixed cost, then patent protection to provide an incentive
for the inventor may be more suitable. Ultimately, patents should be awarded only when strictly needed on economic grounds,
as spelled out earlier.¶ 7) We [Boldrin and Levine] advocate returning to the rule prior to the Bayh–Dole Act of 1980 according
to which the results of federally subsidized research cannot lead to patents, but should be available to all market participants.
This reform would be particularly useful for encouraging the dissemination of innovation and heightening competition in the
pharmaceutical industry.¶ 8) In several industries, notably pharmaceuticals, it would be useful to rethink all of the government
policies that bear on incentives for invention. The broad point is that there are a number of ways to reduce the risks and cost of
developing new drugs, rather than just trying to ratchet up patent protection. ¶ In general, public policy should aim to decrease patent
monopolies gradually but surely, and the ultimate goal should be the abolition of patents. After six decades of further study
since Machlup’s testimony in 1958 has failed to find evidence that patents promote the common good, it is surely time to
reassess his conclusion that it would be irresponsible to abolish the patent system. The patent system arose as a way to limit the
power of royalty to award monopolies to favored individuals; but now its primary effect is to encourage large but stagnant
incumbent firms to block innovation and inhibit competition.
27
Major reductions or abolishment of the patent system is key to necessary innovation – anything else
leaves innovators bound up within red tape and the legal process
Carter 2/5
[Zach, The Huffington Post's Senior Political Economy Reporter, working out of Washington D.C., Patent Reform, System Should Be
Abolished, Fed Economists Say, http://www.huffingtonpost.com/2013/02/05/patent-reform-economists_n_2623537.html]jap
Two economists at the St. Louis Federal Reserve published a paper arguing to abolish the American patent system, saying
there's "no evidence" patents improve productivity and that they have a "negative" effect on "innovation." ¶ The research
suggests that President Barack Obama's 2011 patent reform legislation -- one of only a handful of major bills to clear
Congress with bipartisan support in recent years -- was wrong-headed.¶ Patents are designed to encourage innovation by
granting inventors long-term monopolies on new products. In recent years, however, several innovators in
high-tech sectors have complained that the large volume of vague patents has become a major barrier to
innovation. When start-ups attempt to unveil a new product, they risk violating a broad, obscure patent.¶
"Our preferred policy solution is to abolish patents entirely," the paper's authors, economists Michele Boldrin and
David K. Levine, wrote. They conclude that problems with patents in fact run much deeper than many critics of
the recent system have emphasized.¶ "The historical and international evidence suggests that while weak
patent systems may mildly increase innovation with limited side effects, strong patent systems retard
innovation with many negative side effects," Boldrin and Levine wrote. "More generally, the initial eruption of
innovations leading to the creation of a new industry—from chemicals to cars, from radio and television
to personal computers and investment banking—is seldom , if ever, born out of patent protection and is
instead the fruit of a competitive environment."¶ The paper also argues that the patent system is damaging
public health by raising the cost of prescription drugs, while failing to generate a plethora of innovative
new treatments for life-saving diseases.¶ "Rather than just ratcheting up patent protection, there are a number of moves we
could make to reduce the risks and cost of developing new drugs," Boldrin and Levine wrote.¶ Those approaches were not taken by the
2011 patent reform bill. Rather than decrease the overall patent load, the legislation sought to expedite the
process and provide more safeguards against awarding low-quality patents. In September, the Obama
administration commemorated the first anniversary of its patent reform bill with a blog post boasting of a faster,
streamlined patent approval system.¶ "The U.S. Patent and Trademark Office is implementing the
legislation in a manner that makes it easier for American entrepreneurs and businesses to bring their inventions
to the marketplace sooner, converting their ideas into new products and new jobs," the post reads. " It will help companies and
inventors avoid costly delays and unnecessary litigation, and let them focus instead on innovation and job
creation."¶ The White House did not immediately respond to a request for comment on the paper. ¶ But the problem of patent
lawsuits has not been mitigated by the law. Since its passage, large tech companies have embroiled themselves
in high-profile cases claiming patent infringement for everything from rounded corners to double-tapping a smartphone screen.¶
Hoping to improve patent quality, Boldrin and Levine say, is a lost cause.¶ "Why use band-aids to staunch
a major wound?" Boldrin and Levine wrote. "Economists fought for decades -- ultimately with considerable success -- to reduce
restrictions on international trade. A similar approach, albeit less slow, should be adopted to phase out patents."
Despite major increases in the amounts of patents and patent law, empirics suggest that patents may have
more of a detrimental effect to overall productivity and innovation
Do Patents Encourage Productivity Growth? If there is to be any rationale for patent systems, with all their ancillary costs, it must
be that they increase innovation and productivity. What is the evidence? Simply eyeballing the big trends shows that patenting
has exploded over the last decades. In 1983 in the United States, 59,715 patents were issued; by 2003, 189,597 patents were
issued; and in 2010, 244,341 new patents were approved. In less than 30 years, the flow of patents more than quadrupled. By
contrast, neither innovation nor research and development expenditure nor factor productivity have exhibited any particular
upward trend. According to the Bureau of Labor Statistics, annual growth in total factor productivity in the decade 1970–1979 was
about 1.2 percent, while in the decades 1990–1999 and 2000–2009 it has been a bit below 1 percent. Meanwhile, US research and
development expenditure has been oscillating for more than three decades in a narrow band around 2.5 percent of GDP. The recent
explosion of patents, in other words, has not brought about any additional surge in useful innovations and aggregate
28
productivity. In new industries such as biotechnology and software—where innovation was already thriving in their absence—
patents have been introduced without any positive impact on the rate of innovation. The software industry is an important case in
point. In a dramatic example of judge-made law, software patents became possible for the first time in the early 1990s. Bessen and
Meurer, in a large body of empirical work culminating in Patent Failure (2008), have studied the consequences of this experiment and
have concluded that it damaged social welfare.¶ Academic studies have also typically failed to find much of a connection between
patents and innovation. In Boldrin and Levine (2008), we conducted a metastudy gathering the 24 studies (including three surveys
of earlier empirical work) we could find in 2006 that examined whether introducing or strengthening patent protection leads to
greater innovation. The executive summary states: “[T]hese studies find weak or no evidence that strengthening patent
regimes increases innovation; they find evidence that strengthening the patent regime increases patenting! They also find
evidence that, in countries with initially weak IP [intellectual property] regimes, strengthening IP increases the flow of foreign
investment in sectors where patents are frequently used.” Actually, the issue of promoting foreign direct investment, while a well-
established empirical consequence of strengthening patent regimes, is entirely beside the point of this essay. There are a number of
ways to strengthen a country’s institutions and infrastructure in a way that would encourage foreign direct investment—and,
in any case, foreign direct investment is not equivalent to innovation.¶ Our conclusion was in keeping with other studies that have
addressed this question. Some studies have failed to find any connection even between changes in the strength of patent law and
the amount of patenting, while others fail to find a connection between patents and some measure of innovation or
productivity. For example, after failing to find a single study claiming that innovation increased as a consequence of the
strengthening of US patent protection in the 1980s, Gallini (2002, p. 139) wrote in this journal: “Although it seems plausible that
the strengthening of US patents may have contributed to the rise in patenting over the past decade and a half, the connection
has proven difficult to verify.” Similarly, Jaffe (2000) also examines many studies and concludes: “[D]espite the significance of the
policy changes and the wide availability of detailed data relating to patenting, robust conclusions regarding the empirical
consequences for technological innovations of changes in patent policy are few. There is widespread unease that the costs of
stronger patent protection may exceed the benefits. Both theoretical and, to a lesser extent, empirical research suggest this
possibility.” 1¶ The Lerner (2002) study is especially notable because he examined all significant changes in patent law in all countries
over the last 150 years. His conclusion: “Consider, for instance, policy changes that strengthen patent protection. Once overall
trends in patenting are adjusted for, the changes in patents by residents of the country undertaking the policy change are
negative, both in Great Britain and in the country itself. Subject to the caveats noted in the conclusion this evidence suggests that
these policy changes did not spur innovation.” This, in summary, is what is currently known as the “patent puzzle”—although
as we will explain, it is substantially coherent with a theory of innovation that emphasizes the gains from competition and first-
mover incentives, rather than benefits from the monopoly power of patents.
There is a large literature base in favor of patent system change on both sides – some argue for reform,
while some even argue that the system is useless and should be abolished
We [Boldrin and Levine] do believe, along with many of our colleagues, that a patent system designed by impartial and
disinterested economists and administered by wise and incorruptible civil servants could serve to encourage innovation. In
such a system, very few patents would ever be awarded: only those for which convincing evidence existed that the fixed costs of
innovation were truly very high, the costs of imitation were truly very low, and demand for the product was really highly
inelastic. (The curious reader may check Boldrin and Levine, 2008, for a more detailed explanation as to why these three conditions
need to be satisfified to make a patent socially valuable). There is little dispute, among these same colleagues, that the patent
system as it exists is very far from satisfying such requirements and it is, in fact, broken. To quote a proponent of patents,
Shapiro (2007): “A growing chorus of scholars and practitioners are expressing concerns about the operation of the US patent
system. While there is no doubt that the US economy remains highly innovative, and there is no doubt that the patent system
taken as a whole plays an important role in spurring innovation, the general consensus is that the US patent system is out of
balance and can be substantially improved.” Actually, we believe the evidence is clear that the patent system taken as a whole
does not play an important role in spurring innovation. But if a well-designed and well- administered patent system could
serve the intended purpose, why not reform it instead of abolishing it?¶ To answer the question we need to investigate the political
economy of patents: why has the political system resulted in the patent system we have? Our argument is that it cannot be otherwise:
the “optimal” patent system that a benevolent economist–dictator would design and implement is not of this world. It is of course fine
to recommend patent reform. But if political economy pressures make it impossible to accomplish that reform, or if they make
it inevitable that the patent system will fail to meet its goals, then abolition—preferably by constitutional means as was the case
in Switzerland and the Netherlands prior to the late nineteenth century—is the proper solution. This political economy logic brings
us to advocate dismantlement of the patent system.
29
Patents have no correlation to productivity or innovation – empirics prove
The case against patents can be summarized briefly: there is no empirical evidence that they serve to increase innovation and
productivity, unless productivity is identified with the number of patents awarded—which, as¶ evidence shows, has no
correlation with measured productivity. This disconnect is at the root of what is called the “patent puzzle”: in spite of the
enormous increase in the number of patents and in the strength of their legal protection, the US economy has seen neither a
dramatic acceleration in the rate of technological progress nor a major increase in the levels of research and development
expenditure.¶ Both theory and evidence suggest that while patents can have a partial equilibrium effect of improving incentives
to invent, the general equilibrium effect on innovation can be negative. The historical and international evidence suggests that
while weak patent systems may mildly increase innovation with limited side effects, strong patent systems retard innovation
with many negative side effects. More generally, the initial eruption of innovations leading to the creation of a new industry—
from chemicals to cars, from radio and television to personal computers and investment banking—is seldom, if ever, born out
of patent protection and is instead the fruit of a competitive environment. It is only after the initial stage of rampant growth
ends that mature industries turn toward the legal protection of patents, usually because their internal growth potential
diminishes and they become more concentrated. These observations, supported by a steadily increasing body of evidence, are
consistent with theories of innovation emphasizing competition and first-mover advantage as the main drivers of innovation,
and they directly contradict “Schumpeterian” theories postulating that government-granted monopolies are crucial to provide
incentives for innovation. A properly designed patent system might serve to increase innovation at a certain time and place—
and some patent systems, such as the late-nineteenth century German system allowing only process but not final product patents,
have been associated with rapid innovation. Unfortunately, the political economy of government-operated patent systems
indicates that such systems are susceptible to pressures that cause the ill effects of patents to grow over time. The political
economy pressures tend to benefit those who own patents and are in a good position to lobby for stronger patent protection,
but disadvantage current and future innovators as well as ultimate consumers. This explains why the political demand for
stronger patent protection comes from old and stagnant industries and firms, not from new and innovative ones. Our preferred policy
solution is to abolish patents entirely and to find other legislative instruments, less open to lobbying and rent seeking, to foster
innovation when there is clear evidence that laissez-faire undersupplies it. However, if that policy change seems too large to swallow,
we discuss in the conclusion a set of partial reforms that could be implemented as part of an incremental strategy of reducing the harm
done by the patent system.
30
Potential Negative Ground
This list is definitely not exhaustive, just a small sampling to show that the literature is out there on both sides. When I
approach this topic as the framer, I see affirmatives that read exclude “x sector from receiving patents” affirmatives. This is especially
grounded in the literature for sectors like biotechnology, pharmaceuticals, business methods and software. The literature to answer
those positions is expansive. Not only is there a deep case debate for the effect of patents on the respective markets, but also advantage
counterplan ground and PIC ground around eligibility reform is fantastic for those cases. Besides exclude affirmatives, I imagine
affirmatives will read blanket reform cases and claim several different sector advantages from that reform (i.e. should substantially
heighten standards for obviousness and claim multiple different sectors benefit from that action). For those cases, the negatives have
access to much more targeted counterplan options. Also, for every part of the topic where I found solvency evidence for the
affirmative heightening standards, there was evidence saying they should do the opposite (refer to the sources section I included at the
end of the document). I have included in the following sections a few examples of literature specific strategies that I have found.
31
Disadvantage Ground
32
Politics
While many argue that politics should not be the central disadvantage strategy that we strive for, it is still a core generic that
is necessary for any given topic, and the links for patents are fantastic. There are large amounts of politically powerful pro-patents
groups, which ensures ground for both politics and other perception disadvantages:

Given this set of players and their incentives, the patent game moves naturally towards its equilibrium, as we have observed
over time. Two centuries or so ago, patents were restricted in their areas of applicability and limited in both depth and
duration over time; they were somewhat “reasonable,” to the extent social gains and costs seemed balanced. But we have
witnessed a steady process of enlargement and strengthening of patent laws. At each stage, the main driving force was the rent-
seeking efforts of large, cash-rich companies unable to keep up with new and creative competitors. Patent lawyers, patent
officials, and wannabe patent trolls usually acted as foot soldiers. While this political economy process is pretty straight-forward in
broad terms, we are still missing an empirical, quantitative analysis of the stakes involved and of the gains and losses accruing
to both the active players and to the rest of society, from the general public to the innovators that never emerged due to
preexisting patent barriers.
Here is more evidence. Patent reform can be controversial – patent lawyers can be a very powerful lobby:

Patent lawyers play a large role in the political economy of patents. According to Quinn (2011), who is a patent attorney, legal
fees for filing a patent run upwards of $7,000 and roughly half are rejected. In 2010, according to the US Patent Office,
244,341 patents were issued, which would imply roughly $3 billion in legal fees per year. Obviously, patent attorneys as a
group have a tremendous incentive to see that more patents are issued. This insight helps us understand better the role of the
courts and their relatively recent reform. In 1982—lobbied by patent lawyers— Congress passed the Federal Courts
Improvement Act, which moved federal patent appeals out of the regular court system to a special court system for dealing
with patents. Naturally, many of the judges for this new court were chosen from the ranks of patent attorneys. For example,
when a court voted, in a 1994 decision, to expand the scope of patents to software (In re Kuriappan P. Alappat, Edward E. Averill
and James G. Larsen 33 F.3d 1526 [ July 29, 1994]), of the six judges who voted in favor, half had previously been patent
attorneys, while of the two that voted against, neither had been. The referee of the patent game is biased both materially and
ideologically. As Landes and Posner (2004, p. 26) write in their discussion of the political economy of patents: “That has been the
experience with the Federal Circuit; it has defined its mission as promoting technological progress by enlarging patent rights.”
33
Industry Specific Disadvantages
Pharmaceutical and biotech prices and r&d
Sharma et al. 2011
[Dr. Neetu Sharma, Dr. Sandeep Batish, Asstt. Professor, Department of Pharmacology ,MMIMSR ,Mullana (Ambala ), India.
Product patent versus process patent in pharmaceutical industry, Journal of Pharmacy Research 2011,4(1),133-135]jap
There are some inventions and discoveries which are not subject to any patent ¶ Issac Newton could not have obtained a patent on laws of gravity even if he was ¶ the
first one to obtain it. Critics of the WTO often cast it as an obstacle to human ¶ health, particularly in the poorest nations. [1] Patents
are particularly
important in¶ the pharmaceutical and biotechnology industries because they provide a mechanism¶ by
which the extremely high product development costs may be recouped. Loss¶ of market share is estimated to be ~40% within
the first year after patent expiration.¶ In addition, the pharmaceutical pipeline is “drying up” (ie, fewer new drugs¶ are entering the market).
Therefore, when the patent on a drug expires, brandname¶ companies are increasingly seeking patent
extension for the drug through¶ innovative products such as clinically superior formulations of the drug
(eg, new¶ drug delivery systems, controlled release) and chemico-pharmacological modifications¶ (ie, improvements in the pharmacokinetics or side effect profiles,
single¶ isomer drugs, prodrugs).[2] Patent
protection is crucial to the innovative pharmaceutical¶ industry. Innovative
companies require the guaranteed period of market¶ exclusivity afforded by patents in order to sustain
drug prices, recoup research and¶ development (R&D) expenditures and finance the development of new
products.[¶ 3] India’s proposed changes to its 35 year old patent laws will deny inexpensive¶ generic drugs to millions of people in India and other developing
countries,¶ international humanitarian agencies and health activists have warned.
IT trade secrets disads

Copyright is open-source now – if patents are removed as an option for IT they will move to rely on trade
secrets protection and political deal making
Prentice 2009
[Brian Prentice is a research vice president and focuses on emerging technologies and trends with an emphasis on those that impact an
organization's software and application strategy, Why We Need Software Patents, July 2009, Gartner, Inc. (NYSE: IT) is the world's
leading information technology research and advisory company. http://www.gartner.com/technology/about.jsp]jap
copyright is in the middle of a transition in information technology. It is becoming primarily a

It is critical to understand that
mechanism to support community-owned assets. It is of rapidly diminishing value in protecting entity-specific assets. And that can be put done to one simple factor – Open
Source Software!¶ What’s been happening over the last decade is simply a re-alignment of asset classes to mirror that reality. If you hope to have a viable,
long-term commercial IT concern you had better be able to protect your ideas from being copied, not just
the specific codification of them. Patents do that. Copyright doesn’t.¶ So, how do we allow entity-specific assets to be protected? That’s
really what’s being debated here. The copyright horse has bolted and will never return . What then happens if software and
business method patents are removed as an option? It will be like trying to burst a balloon by stomping
on it only to watch the air shift out to the ends? All the focus on IP protection will move to the only option
left. Trade secrets .¶ All IT providers are focused today on managing their trade secrets. But what deeply worries me is how
they’ll respond if wholly reliant on it. I feel pretty confident in predicting that the growing lobby power of the IT industry
will shift, like Sauron’s all-seeing eye, towards trade secret legislation. They’ll want it beefed up and armor-plated – just like the media industry did with the
DMCA. And they’ll do this because there is serious money at stake. The market capitalization of these organizations is tied in no small part to their IP, and if its
at risk, tech CEOs will do what it takes to protect it.¶ A trade secret-obsessed IT industry will be focused
on one thing – controlling the flow of labor between organizations. I could well imagine lobbying efforts
to assure the universal enforcement of non-compete clauses in employment contracts. I think we’d see a
lot more cases like Mark Papermaster and Kai-Fu Lee. Of course, if you’re not top talent you can forget
about your hiring employer footing the legal bills. Who knows – IT could end up like the FIFA-governed football (soccer) industry which requires
transfer fees to be paid when contracted players move between clubs.¶ Let’s remember something – patents are a trade-off. An inventor gets an
exclusive right in exchange for the public disclosure of her idea. A functioning patent system (which we don’t have)
supports the proliferation of innovation. Trade secrets, on the other hand, don’t . Software patents aren’t perfect.
There are serious issues which must be sorted out. But in a world where copyright is evaporating as a
way protecting anything other than community-owned assets, software patents are a whole lot less
dangerous than the alternative – aggressively pursued trade secret protection muscled up through
34
political deal making.¶ I would much rather we embrace software patents and water down trade secret
legislation than the other way around.
35
Counterplan Ground
36
Prizes Counterplan
Because most eligibility reform affirmatives will attempt to solve for innovation in the patent system,
the economics literature provides for a broad amount of advantage counterplan ground. One example of a
market counterplan is the prizes counterplan, which allows the government to provide an established market
incentive of a monetary prize to innovators for their inventions. The solvency advocates for this counterplan
function best in relation to biotechnology and pharmaceuticals sectors:
Stiglitz 2007
[Joseph E. Stiglitz, “Pizes, Not Patents”, post-autistic economics review, issue no. 42, 18 May 2007, pp. 48-49,
http://www.paecon.net/PAEReview/issue42/Stiglitz42.htm]jap
There is an alternative way of financing and incentivizing research that, at least in some instances, could do a
far better job than patents, both in directing innovation and ensuring that the benefits of that knowledge are
enjoyed as widely as possible: a medical prize fund that would reward those who discover cures and vaccines.
Since governments already pay the cost of much drug research directly or indirectly, through prescription
benefits, they could finance the prize fund, which would award the biggest prizes for developers of¶ treatments
or preventions for costly diseases affecting hundreds of millions of people.¶ Especially when it comes to
diseases in developing countries, it would make sense for some of the prize money to come from foreign
assistance budgets, as few contributions could do more to improve the quality of life, and even productivity,
than attacking the debilitating diseases that are so prevalent in many developing countries. A scientific panel
could establish a set of priorities by assessing the number of people affected and the impact on mortality,
morbidity, and productivity. Once the discovery is made, it would be licensed.¶ Of course, the patent system is
itself a prize system, albeit a peculiar one: the prize is temporary monopoly power, implying high prices and
restricted access to the benefits that can be derived from the new knowledge. By contrast, the type of prize
system I have in mind would rely on competitive markets to lower prices and make the fruits of the knowledge
available as widely as possible. With better-directed incentives (more research dollars spent on more important
diseases, less money spent on wasteful and distorted marketing), we could have better health at lower cost.¶
That said, the prize fund would not replace patents. It would be part of the portfolio of methods for encouraging
and supporting research. A prize fund would work well in areas in which needs are well known – the case for
many diseases afflicting the poor – allowing clear goals to be set in advance. For innovations that solve
problems or meet needs that have not previously been widely recognized, the patent system would still play a
role.¶ The market economy and the profit motive have led to extremely high living standards in many places.
But the health care market is not an ordinary market. Most people do not pay for what they consume; they rely
on others to judge what they should consume, and prices do not influence these judgments as they do with
conventional commodities. The market is thus rife with distortions. It is accordingly not surprising that in the
area of health, the patent system, with all of its distortions, has failed in so many ways. A medical prize fund
would not provide a panacea, but it would be a step in the right direction, redirecting our scarce research
resources toward more efficient uses and ensuring that the benefits of that research reach the many people who
are currently denied them.
37
Procedure Counterplan
While the literature is diverse as to the need for patent reform, there are many alternative options
suggested internally that would be strategic counterplan ground. For example, while standards of eligibility
need to be overhauled, there are many who also agree that procedural processes also need change as well:
Seymore 2013
[Sean B. Seymore, Professor of Law, Vanderbilt University Law School. J.D., University¶ of Notre Dame, 2006; Ph.D. (Chemistry),
University of Notre Dame, 2001;¶ M.S.Chem., Georgia Institute of Technology, 1996; B.S., University of Tennessee, ¶ 1993., The
Presumption of Patentability, Minnesota Law Review. 2012, Vol. 97 Issue 3, p990-1046. 57p., ebsco]jap
Yet, this is only part of the story. Irrespective of the substantive¶ standards of patentability, procedural aspects of patent¶
examination tip the scales in favor of issuance.¶ 29 An applicant¶ enjoys a presumption of patentability,30 which means that¶ at the
time of filing the application is rebuttably presumed to¶ comply with the utility, novelty, nonobviousness, and disclosure¶
requirements of the patent statute.31 Thus, the Patent Office¶ must issue a patent unless it can affirmatively prove that the¶
invention is unpatentable.32 The scales tip even further toward¶ issuance if the examiner lacks the time, materials, or incentives¶
to conduct a high-quality examination.33 And even though¶ the applicant owes a duty of candor to the Patent Office,34 no¶ one
actually believes that everything that the applicant knows¶ about the invention ends up before the examiner.35 Of course,¶ this
information deficit inevitably allows bad patents to slip¶ through the cracks and further contributes to the patent quality¶
problem.36 The bottom line is that anyone who files a patent¶ application on anything starts off in a very good position.37¶ This
strongly suggests that any plan to improve patent quality must¶ confront the powerful role that the presumption of patentability¶
plays in patent examination.38
38
Potential Critical Ground
I will not claim to be an expert here, so I apologize for my feeble understanding of critical literature. I
did the best that I could considering that I have only started delving into critique research over the past couple
of years, and hope you see redeeming qualities in those efforts. Therefore, if any of my language misrepresents
the way these positions are made or argued, I apologize and honestly say that it was not my intent.
Often in debate, teams are forced to rely on generic critical positions because the literature simply does
not exist for specific critiques on that topic. With patents, that is definitely not the case. Because of the deep
historical roots of property rights and patent law, the critical literature is immense and targeted. I feel like I
could stop this section with the sentence “It’s about PROPERTY RIGHTS” and critical debaters would nod
their heads and agree that there is a wide range of debatable critiques. For example, as this source says, the idea
of property rights lies at the heart of literature on law, economy, the state and culture:
Carruthers and Ariovich

[Bruce and Laura, Department of Sociology at Northwestern, The Sociology of Property Rights, Annu. Rev.
Sociol. 2004. 30:23-46]jap
Property is ubiquitous. The idea of private property suffuses classic liberal thought. Property rights lie at the
intersection of law, economy, the state, and culture. For example, intellectual property rights (IPR) concern
leading-sector industries like biotechnology and computers; property constitutes the foundation for many kinds
of inequality; and property rights preoccupy scholars studying the transition economies of Eastern and Central
Europe. And yet contemporary sociology has said much less about property than its centrality warrants, largely
ceding the topic to economics and law.
However, I think that ending with this blanketed statement would do my paper a disservice. Intellectual
property literature allows for a vast amount of common critical generics that have innovative link debates that
are closer to the heart of their literature than more recent topics have been, as well as its own set of critical
literature specific to intellectual property.
Many people in the community often complain that topics chosen for CEDA neglect to foster innovation
for the common critical positions. However, because the patents debate rings so close to heart of these critique
debates, innovation for the link and impact debates is guaranteed. For example, while many complain that the
capitalism debate has become stale, this would not be the case on a patents topic. Not only would affirmatives
have substantial ground to argue on the link debate about being a move away from reliance on the logic of
39
property, but the negative also has the ability to generate creative reformism links about changing market
structures and capitalism. Here are several examples:
Perelman 2003
[Michael Perelman, professor of economics at California State University at Chico, and the author of fifteen books, The Political
Economy of Intellectual Property, http://monthlyreview.org/2003/01/01/the-political-economy-of-intellectual-property]jap
The dramatic expansion of intellectual property rights represents a new stage in commodification that
threatens to make virtually everything bad about capitalism even worse. Stronger intellectual property
rights will reinforce class differences, undermine science and technology, speed up the corporatization of the
university, inundate society in legal disputes, and reduce personal freedoms.¶ We have no precise measure of
the extent of intellectual property, but a rough calculation by Marjorie Kelly suggests the magnitude of
intellectual property rights. At the end of 1995, the book value of the Standard and Poor (S&P) index of 500
companies accounted for only 26 percent of market value. Intangible assets were worth three times the value of
tangible assets.1 Of course, not all intangible assets are intellectual property rights, but a substantial proportion
certainly is.¶ While the legal protection of intellectual property might seem inseparable from contemporary
global capitalism, until fairly recently capitalists were equivocal about such things. During the first six decades
of the nineteenth century, corporations in the United States were not inclined to respect such intellectual
property rights. For example, they often paid as little as possible, or nothing at all, to inventors. In addition, the
United States did not even recognize international copyrights.¶ The free-marketeers of the nineteenth century
vigorously opposed intellectual property rights as feudalistic monopolies. Their view of intellectual property
rights mostly dominated political economic opinion in the United States until the massive depression of 1870s
weakened faith in market forces. In the context of the economic crisis, business was desperate for anything that
would return profits to what they considered to be an acceptable level.¶ At first, business owners tried forming
cartels and trusts to hobble competitive forces. In response to vigorous protests, Congress passed the Sherman
Antitrust Act. However, corporations were able to use patents, which were perfectly legal, as a convenient
loophole to evade the intent of that law. Through patent pools, they could divide up the market and exclude new
competitors. In this way, intellectual property rights were important in establishing monopoly capitalism.¶ The
strengthening of intellectual property rights accelerated once again as the bloom wore off the post-Second
World War “Golden Age” and the United States’ export surplus disappeared. Behind closed doors, corporate
leaders successfully lobbied the government to strengthen intellectual property rights that would give
advantages to their industries. Just as in the late nineteenth century, business saw property rights as a means of
increasing profits when economic conditions began to sour. The public never had a clue about the extent to
which the government had given away important rights.¶ The Bizarre World of Intellectual Property Rights¶
Today, intellectual property rights claims go far beyond patent protection for useful inventions and copyrights
for new music. Some claims are so outlandish that they would be humorous if the courts did not take them so
seriously. For example, lawyers are now suggesting that athletes should patent the way they shoot a basket or
catch a pass.2¶ The American Society of Composers, Authors, and Publishers (ASCAP), ever on the lookout for
more royalties, was about to sue the Girl Scouts for singing “Row, Row, Row Your Boat” and other songs
around campfires until adverse publicity caused it to relent.3 On the same day that the Girl Scout article
appeared, a Wall Street Journal article reported that the National Basketball Association was engaged in a suit
against America Online over the transmission of game scores and statistics from NBA games in progress.4 In
another case, someone, in all seriousness, patented the correct way of lifting a box.5 In one remarkable case, a
patient found that his doctor had patented genetic material from the patient’s own body without informing him.
The patient sued for compensation, but the courts upheld the doctor’s rights to the intellectual property encoded
in the patient’s genes.6¶ Absurd claims to informational property rights have been expanding by leaps and
bounds. People have successfully convinced the Patent and Trademark Office to grant property rights for
everything from colors to a specific number.7 The Patent and Trademark Office even registered the “frowny”
emoticon as a trademark of Despair.com. Ralph Lauren won a victory in an appeals court in 2000, when his
lawyers forced a magazine, begun in 1975 as the official publication of the U.S. Polo Association, to change its
40
name because Lauren claimed the word “Polo” as intellectual property.8 In a similar case, when educators at the
Australian Institute of Management listed a twenty-year-old course, “Effective Negotiation Skills,” on the
organization’s Web site, a United States training group, Karrass, told the institute to take the course description
off the site because Karrass has a U.S. trademark over the expressions “effective negotiating,” “advanced
effective negotiating,” and “effective sales negotiating.”9¶ One critic of the patent system even succeeded in
winning a patent for Kirchoff’s law, a scientific principle first developed in 1845, proving that the electric
current flowing into a function equals the current flowing out.10 If an individual critic of the patent system is
able to manipulate the Patent and Trademark Office into registering such ridiculous claims, think of how much
profit-maximizing corporations, with enormous resources available for research and legal expenses, are able to
stake out as private property.¶ To illustrate this point, Richard Stallman, winner of a MacArthur “genius”
award, challenged Bruce Lehman, then head of the U.S. Patent and Trademark Office, at a contentious meeting.
Stallman produced a voluminous, unwieldy printout of a computer program he had written earlier with several
colleagues. He explained that the program was currently in use on more than a million computers, including
those of the U.S. Air Force and major companies, such as Intel and Motorola. “Just a few lines of code can be
enough to infringe a patent, and this compiler has ten thousand pages,” Stallman said, gesturing to the
document. “How many patents does it infringe? I don’t know. Nobody does. Perhaps you can read the code and
tell me?” he challenged Mr. Lehman.11¶ The Dual Economy¶ Intellectual property rights change the nature of
competition. Most industries that do not enjoy the protection of intellectual property rights find themselves
involved in intense competition, which lowers their profits. In contrast, companies with intellectual property
rights face limited competition and can enjoy elevated profits.¶ For example, Federal Reserve Board Chairman
Alan Greenspan recently told Congress: “Indeed, a striking feature of the current cyclical episode relative to
many earlier ones has been the virtual absence of pricing power across much of American business, as
increasing globalization and deregulation have enhanced competition. In this low-inflation environment, firms
have perceived very little ability to pass cost increases on to customers.”12¶ Let us decode the Chairman’s
words. For agricultural products, steel, and other commodity-like goods with no intellectual property protection,
competitive forces put powerful pressure on profits. If the entire economy were like those industries, a severe
crisis would engulf it. In particular, those industries that depended on intellectual property would tend to be
especially vulnerable. Reproduction costs for software, pharmaceuticals, or movies are trivial. In the language
of economics, marginal costs are small and fixed costs are high. Without the legal protection of intellectual
property rights, strong competition in such industries would mean certain bankruptcy. Consequently, monopoly
in these sectors is essential, and monopoly is made possible by intellectual property rights protection.¶ A few
years earlier, Greenspan was emphasizing a different part of the economy, breathlessly rhapsodizing about a
weightless economy:¶ The world of 1948 was vastly different from the world of 1996. The American economy,
more then than now, was viewed as the ultimate in technology and productivity in virtually all fields of
economic endeavor. The quintessential model of industrial might in those days was the array of vast, smoke-
encased integrated steel mills in the Pittsburgh district and on the shores of Lake Michigan. Output was things,
big physical things.¶ Virtually unimaginable a half-century ago was the extent to which concepts and ideas
would substitute for physical resources and human brawn in the production of goods and services. In 1948
radios were still being powered by vacuum tubes. Today, transistors deliver far higher quality with a mere
fraction of the bulk. Fiber-optics has [sic] replaced huge tonnages of copper wire, and advances in architectural
and engineering design have made possible the construction of buildings with much greater floor space but
significantly less physical material than the buildings erected just after World War II. Accordingly, while the
weight of current economic output is probably only modestly higher than it was a half-century ago, value added,
adjusted for price change, has risen well over threefold.13¶ Over and above the obvious exaggeration,
Greenspan’s words here appeal to the marvels of high technology. But the so-called weightless economy has
more to do with the legislated powers of intellectual property that the government granted to powerful
corporations.14 For example, companies such as Nike, Microsoft, and Pfizer sell stuff that has high value
relative to its weight only because their intellectual property rights insulate them from competition.¶ In his more
recent testimony, Greenspan noted, however, “a firm is inherently fragile if its value-added emanates more from
conceptual as distinct from physical assets.”15 This possibility would be even more terrifying to holders of
intellectual property was it not for the powerful protection that the state provides. Not a day goes by when some
41
legislature or some courtroom fails to grant new powers to holders of intellectual property.¶ The Costs of
Intellectual Property Rights¶ Intellectual property rights are in the process of corrupting society in a number of
ways. First of all, intellectual property rights will reinforce class differences. Worldwide, the rich have become
richer to an unimaginable extent in recent years. The members of the “Forbes 400,” a compilation of the 400
richest people in the United States, have a combined net worth of $1 trillion-greater than the gross domestic
product of China.16¶ Between 1995 and 1998, the average annual income for a member of this elite group rose
from $50 million to a staggering $110 million. The obscene wealth of a Bill Gates of Microsoft, a Phil Knight
of Nike, and all of the other instant Internet billionaires, alongside the sizable residue of poverty that blights the
contemporary United States, reminds us of the link between the distribution of income and intellectual
property.¶ Emblematic of the extent of this new distribution of property, in 1999 outside of those who have
inherited their wealth, three of the four richest people in the world, according to a Forbes magazine survey,
owed their wealth to Microsoft, one of the major holders of intellectual property rights, befitting the so-called
New Economy in which “DOS Capital” has supplanted Das Kapital.17¶ Perhaps the famous trickle down effect
could justify the obscene maldistribution of wealth if intellectual property rights actually improved productivity.
In fact, intellectual property rights are terribly destructive of productivity on many counts. First of all,
intellectual property rights undermine the very science and technology that they are supposed to promote.
Intellectual property rights are to science what tollbooths are to highway traffic. Both create bottlenecks and
impede forward progress, but in the case of intellectual property rights, innumerable disputes arise about who
gets to collect the tolls and how much the tolls should be. To the extent that the present system of intellectual
property rights constricts the flow of new technologies, it imposes another incalculable cost on society.¶ For
example, virtually no new technology is the product of a single person or even a single corporation. Ideas and
discoveries, what Marx called “universal labor,” draw upon a multitude of sources. Sorting out who deserves
legitimate credit for any technology is impossible. Just consider the complexity of a large software system with
100,000 components. It can use hundreds of previously patented techniques. Because each patent search costs
about a thousand dollars, searching for all the possible patent potholes in the program could easily run well over
$1 million, and that far exceeds the cost of writing the program.18¶ Intellectual property rights spawn a system
of wasteful litigation. Already, by the early 1990s, Intel’s annual litigation budget alone was believed to be at
least $100 million. No doubt it has grown significantly since then.¶ Intellectual property rights also create an
atmosphere of secrecy, which is inimical to scientific progress. Finally, the quest for intellectual property rights
is speeding up the corporatization of the university. Universities now routinely sell to corporations the rights to
the patents developed in university laboratories, often at public expense.¶ Oil or Intellectual Property¶ While
energy sources are the central to maintaining life itself, let alone the capitalist mode of production, intellectual
property rights are now every bit as important in maintaining the international financial balances of the U.S.
economy. Domestic access to oil will remain important, of course, so long as the comfortable classes continue
to ride in their SUVs and heat and cool their mega-mansions, but the energy requirements for the domestic
production of material goods becomes increasingly less important as production moves to low-wage peripheral
areas of the world. Intellectual property rights have become the financial counterweight to deindustrialization,
because the revenues that they generate help to balance the massive imports of material goods. Unfortunately,
this means of payment still remains woefully insufficient to reimburse the rest of the world for the imports to
United States.¶ The strengthening of intellectual property rights is perhaps the most pressing U.S. foreign policy
objective today, possibly even more so than oil. The government’s efforts go well beyond shoring up the legal
rights of holders of this kind of intellectual property. The full weight of its power is brought to bear against all
evildoers who would dare to create knock offs of a Disney cartoon or a Nike “swoosh.” In the words of Thomas
Friedman, perhaps the most enthusiastic proponent of globalization at the New York Times:¶ The hidden hand
of the market will never work without a hidden fist—McDonald’s cannot flourish without McDonnell Douglas,
the designer of the F-15. And the hidden fist that keeps the world safe for Silicon Valley’s technologies is called
the United States Army, Air Force, Navy and Marine Corps….Without America on duty, there will be no
America Online.19¶ Lest the skeptical reader dismiss Friedman’s clever phrasing as nothing more than a
rhetorical flourish, consider the words of William Cohen, the secretary of defense in the Clinton administration.
In February 1999, upon his arrival in Seattle—a city that a few months later became a symbol of resistance to
the policies that he was sent to advocate—to speak to the employees of Microsoft, the secretary told reporters,
42
“I will point out that the prosperity that companies like Microsoft now enjoy could not occur without having the
strong military that we have.”20 Friedman and Cohen have expressed what is probably the central thrust of the
foreign policy of the government of the United States.¶ Intellectual Property and Corporate Control¶ Guarding
the property rights of typical material commodities is relatively simple. Because most commodities are
assembled in stores or warehouses, the owners merely have to watch over the commodities in question to ensure
that unauthorized people do not take possession of them. In the case of intellectual property, the materiality of
the good is irrelevant. A song or a program can be downloaded virtually everywhere by anybody. As a result,
protecting intellectual property requires control over people rather than things. Consequently, the protection of
intellectual property is necessarily more intrusive than for material commodities.¶ Purveyors of intellectual
property implore the government, often with success, to mandate modifications that limit the capacity of
modern technologies to violate intellectual property rights—even if they cause inconvenience to the consumers
whom capitalism is supposed to serve.¶ A frightening, albeit ridiculous, example of this invasiveness came from
a Canadian case in which a farmer was accused of “stealing” Monsanto’s intellectual property by planting
genetically engineered seeds. The farmer protested that he had not planted Monsanto’s seeds. The judge ruled
that even though the court had no evidence to prove that the genetic material had not drifted onto his property in
pollen from other farms, this farmer had the obligation to police his fields to protect Monsanto’s intellectual
property. According to the decision, “the source…is really not significant….Growth of the seed, reproducing
the patented gene and cell, and sale of the harvested crop constitutes taking the essence of the plaintiffs’
invention, using it, without permission. In so doing the defendants infringed upon the patent interests of the
plaintiffs.”21 Of course, to expect farmers to prevent pollen from drifting onto their fields strains credulity—
even in a corporate-dominated society.¶ Conclusion¶ So here is a property right that undermines science,
burdens the economy with expensive litigation, and infringes on personal freedom. To make matters more
absurd, public research forms the basis of the great advances in intellectual property. Yet the leaders of the
capitalist world can find no better way to lift the rate of profit than to promote the expansion of intellectual
property rights.
Trosow 2002
[Samuel E. Trosow, Doctor of Philosophy¶ in Library and Information Science at UCLA, Information for
Society:¶ Towards a Critical Theory of¶ Intellectual Property Policy, dissertation]jap
So long as public goods are conceptualized as a market-failure “problem” that¶ needs to be “corrected,” the
tendency will be towards the promotion of ever more¶ effective exclusion mechanisms. If the exclusion
mechanisms are designed to inhibit¶ what are otherwise socially desirable transfers of information, there is a net
loss to¶ society. This tendency is a hallmark of the information society model. On the other hand,¶ recognizing
the public good qualities of information, and developing policies designed to¶ enhance production and
dissemination through subsidies or public provision characterizes¶ the information-for-society model.
Unfortunately, traditional public goods analysis¶ inevitably justifies policies in the proprietary direction. This
analytical framework fails to¶ adequately account for the negative social costs of restricting the flow of
information¶ resulting from the imposition of artificial exclusion mechanisms. And as Mark Poster¶ pointed
out, it fails to comprehend the distributional potentials enabled by technologies¶ that are able to transcend the
problems of scarcity. While the study of public goods¶ literature provides the important conceptual tools of
non-rivalry and exclusion, the¶ continuing value of this framework for policy analysis must be questioned.
Without¶ losing sight of the importance of the concepts of non-rival consumption and exclusion¶ mechanisms,
traditional public goods analysis would should be replaced with an¶ approach that focuses on the tension
between use-value and exchange-value inherent in¶ the information commodity and the consequent tension
between the forces and relations¶ of production.
Trosow 2002
43
C. Reification and the Information Commodity¶ Before leaving the category of the commodity form, mention
should be made of¶ Marx’s notion of commodity fetishism. In his development of the commodity form,¶ Marx
stresses that commodity production is composed of social relations. At the end of¶ the chapter on the
commodity form, he looks at how these relations appear to society and¶ argues that these social relations are
manifest as existing between the products of labor,¶ not between laborers themselves. Marx presents
commodity fetishism as an example of¶ how capitalism conceals the essence of underlying social relations.¶ “A
commodity is therefore a mysterious thing, simply because in it the¶ social character of men's labour appears to
them as an objective character¶ stamped upon the product of that labour; because the relation of the¶ producers
to the sum total of their own labour is presented to them as a¶ social relation, existing not between themselves,
but between the products¶ of their labour. This is the reason why the products of labour become¶ commodities,
social things whose qualities are at the same time¶ perceptible and imperceptible by the senses…[the
commodity] is a¶ definite social relation between men, that assumes, in their eyes, the¶ fantastic form of a
relation between things.” (Capital, Vol 1, Ch 1, section¶ 4, 1967, p. 72 )¶ Marx makes an analogy to the manner
in which religion bestows an independent¶ status on products of the human thought:¶ “In order… to find an
analogy, we must have recourse to the mistenveloped¶ regions of the religious world. In that world the
productions of¶ the human brain appear as independent beings endowed with life, and¶ entering into relation
both with one another and the human race. So it is in¶ the world of commodities with the products of men's
hands. This I call the¶ Fetishism which attaches itself to the products of labour, so soon as they¶ are produced
as commodities, and which is therefore inseparable from the¶ production of commodities” (id).¶ Marx did not
explicitly return to the subject and the idea was given little attention¶ until George Lukacs resuscitated it
through his theory of reification. Reification is closely related to the concept of commodity fetishism and has
been defined as “the act (or the¶ result of the act) of transforming human properties, relations and actions into
properties,¶ relations and actions of man-produced things which have become independent (and¶ which are
imagined as originally independent) of man and which govern his life”¶ (Petrovic, 1983).¶ Lukacs (1971, p. 83)
argued that commodity fetishism was a central structural¶ problem of capitalism:¶ “The essence of commodity-
structure has often been pointed out. Its basis¶ is that a relation between people takes on the character of a thing
and this¶ acquires ‘a phantom objectivity’, an autonomy that seems so strictly¶ rational and all-embracing as to
conceal every trace of its fundamental¶ nature: the relation between people.”¶ As a concept, reification is
particularly important for purposes of policy analysis¶ because in the reified world the scope of available policy
options becomes artificially¶ constrained. Lukacs describes “the reified world” as the only possible
conceptually¶ accessible world “vouchsafed to us humans” (id, p. 110). Accordingly, reification¶ constricts the
scope of admissible policy options. Peter Gabel (1982, p. 262) argues that¶ legal reasoning itself “is an
inherently repressive form of interpretive thought which¶ limits our comprehension of the social world and its
possibilities.”¶ In his essay on the relative autonomy of law, Isaac Balbus (1977, p. 582-83)¶ raises the similar
point about how legal form itself evades critical review:¶ “The legal form is normally not called into question, I
would argue,¶ because the form itself ordinarily precludes the possibility of performing¶ this critical operation.
The calling into question of the legal order¶ presupposes individuals who conceive themselves as subjects
evaluating¶ an object which they have created and over which they have control. It is¶ just this presupposition,
however, which is nullified by the perverse logic of the legal form; this form creates a fetishized relationship
between¶ individuals and the Law in which individuals attribute subjectivity to the¶ Law and conceive
themselves as its objects or creations. Under these¶ conditions, the calling into question and subsequent
delegitimation of the¶ legal order is literally ‘unthinkable.’”¶ Balbus’ argument, that the legal order appears as
an autonomous subject in itself,¶ runs parallel to Marx's notion of commodity fetishism. In a similar manner,
the¶ information society model assumes a reified form of information and intellectual labor,¶ and is itself a
reified model of reality.
Also, because of the changes away from industrial labor towards “knowledge labor,” most previous
capitalism debate is a thing of the past. Instead, understanding of intellectual labor is key to present a new lens
for the capitalism debate:

44
Trosow 2002
By identifying labor as having the special capacity to create more value than it¶ possesses, Marx is able to break
with the classical political economists who located the¶ source of profit in the realm of exchange. There is
symmetry between the views of¶ classical political economists and information society theorists in that they both
attribute¶ the accumulation of profit to factors other than the exploitation of labor. In the case of the¶ former,
profit derived from selling goods on the market at a higher price than their¶ component costs. In the case of the
later, information technology is seen as an¶ autonomous variable that is capable of creating value in its own right
in the form of¶ knowledge. Marx and his predecessors developed their theory of value in the early stages of¶ the
industrial era. The question naturally arises, how is the labor theory of value¶ applicable in the later stages of
capitalism? How does the theory apply to the “intellectual¶ labor” or “knowledge work” that goes into the
production of the information commodity?¶ Peter Drucker, Daniel Bell and others have claimed that the labor
theory of value is no¶ longer a viable concept. They claim that it has been superseded by the "knowledge theory¶
of value." In Bell's post-industrial society, the crucial variables are information and¶ knowledge, not labor and
capital.
The literature here is not just your typical “x is capitalist” link debate. Instead, one can move away from
static capitalism debates towards a in depth discussion of production, information and market structures. Even
with my proposed resolution which calls for a narrower interpretation of patent law, often the logic behind these
calls for narrowing law by solvency advocates are for a more efficient and workable system for productivity and
innovation. Not only does this give you good links for a capitalism debate, but can also be used to answer
critical affirmatives that claim advantages about capitalism or other critical arguments about their negative state
action.
Not only can debaters access amazing market-based critiques, the literature basis for race and gender
based arguments is spectacular. While previous topics like energy and immigration did give teams good links to
debates about anti-blackness, natives, gender and other types of identity-politics arguments, the fact that patents
is rooted in the ideology of right to property and ownership ensures that the debates center around where all of
that literature historically began – guaranteeing great links. Here are some examples:
Intersectionality
Greene 2008
[K.J. Greene, Associate Professor, Thomas Jefferson School of Law, San Diego CA, J.D. Yale¶ Law School.
Intellectual Property at the¶ intersection of race and¶ gender: Lady sings the blues, Journal of Gender, Social
Policy & the Law, Volume 16 Issue 3 Article 2]jap
The history of the production of cultural property in the United States¶ follows the same pattern as the history of
the racial divide that inaugurated¶ the founding of the Republic. The original U.S. Constitution excluded both¶
45
black women and men from the blessings of liberty. Meanwhile, that same¶ Constitution granted rights to
authors and inventors in what is known as the¶ Patent/Copyright Clause of Article I, Section 8.1 This clause laid
the¶ foundation for intellectual property (“IP”) rights that have become an¶ economic juggernaut not only in the
United States, but globally.2 IP rights¶ are inextricably tied to cultural and scientific production, which
influences¶ all aspects of society. Thus, before the passage of the major civil rights¶ amendments and acts, the
provisions of Article I, Section 8 were¶ unavailable to protect the cultural rights of early black Americans.
Congress enacted laws mandating racial equality and effectively protecting¶ the intellectual property rights of
blacks in the arts and sciences only within¶ the past few decades.3¶ This Article briefly explores how women
artists, particularly black¶ women, have been impacted by the IP system, and compares how both¶ blacks and
women have a shared commonality of treatment with¶ indigenous peoples and their creative works. The
treatment of blacks,¶ women, and indigenous peoples in the IP system reflects the unfortunate¶ narrative of
exploitation, devaluation, and promotion of derogatory¶ stereotypes that helped fuel oppression in the United
States, and in the case¶ of indigenous peoples, both here and abroad. The treatment of women¶ blues artists in the
IP system illustrates the racial and gendered nature of IP¶ rights, and that IP has been central to racial
subordination from both an¶ economic and cultural standpoint. However, examining inequality in the IP¶ context
is not merely a backwards-looking narrative. Racial and gender¶ dynamics offer unique insights that can guide
reforms to the IP system with¶ a view toward benefiting, in Derrick Bell’s words, the least-advantaged¶ “faces at
the bottom” of our society.4¶ Traditionally, IP scholarship and jurisprudence has not focused on race¶ and gender
inequality. However, these issues are receiving renewed¶ attention in feminist scholarship and in critiques of
existing power¶ structures by those concerned with the treatment of people of color,¶ women, and indigenous
peoples in the international arena. Analytical¶ inquiries that explore the rights of minorities, women, and
indigenous¶ peoples enhance the debate about IP reforms. Further, a focus on the least¶ advantaged segments of
society, such as blues women, shifts the debate to¶ focus on the empowerment of artists who create, and not on
empowerment¶ of large conglomerates that control IP in the United States and abroad.¶ Part I of this Article,
briefly discusses the tenets of critical race theory to¶ show that it can be useful in explaining how IP law has
disadvantaged¶ African-American artists and fostered their subordination. Part II explores¶ how feminist critiques
of IP benefit from examining the treatment of black¶ women, using blues women of the 1920s as a focal point.
Part III examines¶ how the treatment of indigenous peoples parallels IP deprivations of blacks¶ and women.
Antiblackness
Harris 1993
[Cheryl, Assistant Professor of Law, Chicago-Kent College of Law, Whiteness as Property, Harvard Law
Review, Vol. 106, No. 8 (Jun., 1993), pp. 1707-1791]jap
The racialization of identity and the racial subordination of Blacks and Native Americans provided the
ideological basis for slavery and conquest. 16 Although the systems of oppression of Blacks and Native
Americans differed in form - the former involving the seizure and appropriation of labor, the latter entailing the
seizure and appropria-tion of land - undergirding both was a racialized conception of property implemented by
force and ratified by law. The origins of property rights in the United States are rooted in¶ racial domination.17
Even in the early years of the country, it was¶ not the concept of race alone that operated to oppress Blacks
and¶ Indians; rather, it was the interaction between conceptions of race¶ and property that played a critical role
in establishing and maintaining¶ racial and economic subordination.¶ The hyper-exploitation of Black labor was
accomplished by treating¶ Black people themselves as objects of property. Race and property¶ were thus
conflated by establishing a form of property contingent on¶ race - only Blacks were subjugated as slaves and
treated as property.¶ Similarly, the conquest, removal, and extermination of Native American¶ life and culture
were ratified by conferring and acknowledging¶ the property rights of whites in Native American land. Only
white¶ possession and occupation of land was validated and therefore privileged¶ as a basis for property rights.
These distinct forms of exploitation¶ each contributed in varying ways to the construction of whiteness¶ as
property.
Critical Race Theory

46
Greene 2008
CRT analysis has “provided important insights into the ways in which¶ anti-discrimination law has not only
failed to address, but [has] further¶ entrenched, ideological and thus material forms of discrimination.”20 An
insight that CRT offers to IP law is that its use in society and legal¶ scholarship, like antidiscrimination law,
also may have served to entrench¶ material forms of discrimination. While individual black artists without¶
question have benefited from the IP system, the economic effects of IP¶ deprivation on the black community
have been devastating. Intellectual¶ property today is perhaps the preeminent business asset.21 Analysts¶
recognize that blacks and other minorities in a market economy “cannot¶ participate as equals unless they too
can deploy the private power generated¶ by ownership and control substantial business assets.”22 The three
core protections of intellectual property at the federal level are¶ copyright, patent, and trademark law.23
Copyright law protects creative¶ output of authors, such as music composers, writers, and choreographers,¶ by
granting limited property rights in their creations. Patent law provides¶ legal protection to inventors of useful
inventions. Trademark law prohibits¶ the use of a valid trademark by third parties where the unauthorized use
is¶ likely to cause consumer confusion in the marketplace.¶ In the past, few legal scholars examined race or
gender in the context of¶ IP. It is only in recent years that scholarship exploring IP has examined it¶ in the
context of social and historical inequality. Only recently have¶ scholars, such as Professor Sunder, recognized
that IP serves not merely as¶ a legal doctrine allocating rights, but “as a legal vehicle for facilitating (or¶
thwarting) recognition of diverse contributors to social discourse.”24 IP¶ scholars such as Keith Aoki and
Shubha Ghosh are now validating the¶ phenomena of the similar divestment of patent protection for black¶
inventors.25 My scholarship was among the first to show how the structure¶ of copyright law, and the
phenomena of racial segregation and¶ discrimination, impacted the cultural production of African-Americans,
and how the racially neutral construct of IP has adversely impacted African-¶ American artists.26¶ The long
omission of an analysis of race in the IP context is glaring¶ given the tremendous innovative contributions of
black authors and¶ inventors to society, and the salience of race “branding” in trademark law.¶ The treatment of
blacks in the IP system has been characterized by two¶ dynamics that have import for racial and distributive
justice. First, black¶ authors and inventors have found their works routinely appropriated and¶ divested.
Second, appropriated and distorted creative works protected by¶ copyright, and trade symbols and imagery
protected by trademark, have¶ promoted derogatory racial stereotypes that facilitate racial subordination.
Feminism
Greene 2008
The impact of both gender andrace in IP has been under-explored until¶ recent years. IP scholars such as Dan Burk
have noted the rarity of¶ “[f]ocused critical examination of pervasive biases of the intellectual¶ property system . .
. .”79 The feminist critique of IP is still in its early¶ stages, but it provides a good foundation for the analysis of
the ways that a¶ seemingly “gender-neutral” regime, such as IP, can in fact reinforce social¶ domination. IP, in
the form of film, theatre, music, and literature provides¶ the raw material for popular culture, and feminist
scholars such as Susan¶ Bisom-Rap have noted that “[p]opular culture is a fertile analytical site for¶ feminist
legal theory.”80¶ A great strength of feminist legal theory is its focus on uncovering¶ subordination hidden in
“neutral” legal regulations.81 Professor Coombe,¶ for example, has recognized that “[i]ntellectual property law
does not¶ function simply in a rule-like fashion, nor is it merely a regime of rights¶ and obligations.”82 Rather, it
exists in a cultural battleground of hegemony,¶ social dominance, and resistance. A feminist critique recognizes
that rights¶ governing cultural production did not arise in a social or cultural vacuum,¶ but in a crucible of gender
and racial subordination, the embers of which still burn today. Authorship, after all “is the foundation of
47
copyright,”83¶ and authorship, like race and gender, is socially constructed.¶ Some analytical commonalities
exist between feminist critiques of IP¶ and those that seek to expose racial subordination in the IP context. This¶
Article seeks to illustrate that there is an invisible—in an Ellsonian sense—¶ dynamic of subordination that
underlies the “race-neutral” regime of IP. In¶ a similar vein, IP scholars using a feminist paradigm have noted
that¶ “intellectual property appears to have been largely overlooked in feminist¶ critiques of the law . . . .”84
Similarly, feminist scholars have recognized¶ that IP scholarship, in the words of Sonia Katyal, has traditionally
“failed¶ to consider how intellectual property, as it is owned, constituted, created,¶ and enforced, both benefits
and disadvantages segments of the population¶ in divergent ways.”85
Gender
Swanson 11 [Kara W. Swanson, Associate Professor of Law, Northeastern University School of Law. B.S., Yale University;
M.A./J.D., University of California, Berkeley; Ph.D., Harvard University, "Getting a Grip on the Corset: Gender, Sexuality and Patent
Law ," works.bepress.com/cgi/viewcontent.cgi?article=1008&context=kara_swanson]cd
The late nineteenth - century corset was also a technological wonder. The corset was an intricate structure, reinforced with bone and steel. Its ability to mold
women’s bodies into an hourglass shape was dependent on technologies of the Industrial Revolution — from metal eyelets, to the sewing machine,
to the steam engine. 6 Like the more celebrated technologies of the era, such as the telephone, the telegraph, and the light bulb, the corset was the product of many inventors,
who made and patented improvements and fought about their rights in court . As American women donned their corsets, they were enacting a daily intimate
relationship with a heavily patent - protected technology. The corset during these decades was deeply embedded both within the social construction of
gender and sexuality, as a marker of femininity and respectability, and within the United States patent system, as a commercial good
in which many claimed intellectual property rights. Getting a grip on the corset, then, offers a way to simultaneously consider gender,
sexuality, and patent law as part of the burgeoning project to analyze intellectual property from a feminist perspective . 7 The admonition to
get a grip on the corset is particularly relevant to this project because in addition to its “starring role” in the history of the Western feminine body, the corset has also played a
starring role in the canon of patent law. In 1881, the Supreme Court issued its opinion in Egbert v. Lippmann , declaring that a corset patent owned by the plaintiff, Frances
Egbert, was invalid. 8 Since then, Egbert has been recognized and repeatedly cited for its foundational explication of the “public use” doctrine in patent law. 9 Reiterating over a
century of reliance on the case , the Court of Appeals for t he Federal Circuit in 2005 cited Egbert as “the classical standard for
assessing the public nature of a use.” 10 The Supreme Court’s opinion is excerpted in virtually every patent casebook today to explain
the public use doctrine. 11 Anyone who has taught or taken patent law is nearly certain to remember what is commonly referred to as
the “corset case.” Despite its established position in the canon, the Egbert decision appeared odd when it was issued, and it is an oddity
today. This oddity arises in part because the Court used a case about underwear to explain the parameters of the public use of an
invention. The Court found that one woman’s use of an improved steel stiffener within her corset was a public use of the improvement. 12 By this ruling, this most private
garment was made legally public. This odd aspect of Egbert was noted by the dissenting Justice at the time, 13 and it remains a startling feature of the case when it is used to
introduce the public use doctrine to contemporary law students. The case also seems odd in the early twenty - first century because it involves a female patent owner as plaintiff and a feminine
The plaintiff Frances Egbert, her corset, and her corset p atent all appear exotic in
garment as the disputed technology, both rare within the patent law canon.
the context of a standard patent law course, which involves “hard,” that is, masculine, technologies such as auto parts, chemicals,
airplanes, and light bulbs, and a steady parade of male inventors and male litigants . 14 The odditi es of the Egbert decision provide rich
opportunities for a feminist analysis of patent law. By paying careful attention to gender and sexuality w hile considering the nineteenth - century corset as invention, 15
we can understand the oddness of Egbert , both to it s nineteenth - century participants and to its twenty - first - century readers.
Traditional knowledge/Indigenous peoples and critical theory

Greene 2008
“Critical” perspectives in the context of international IP law are now¶ emerging.105 Taking up the challenge to
apply the lens of critical race and¶ other “critical theories,”106 scholars such as Margaret Chon contend that¶
globalization and the gap between rich and developing nations of the¶ former colonial period in conjunction
with IP have “injected human rights¶ and social justice debate into a field dominated by commercial¶
instrumentalism and economic rationales . . . .”107 The debate over¶ traditional knowledge reflects tensions
between the developed world and¶ the Third World over culture and control of resources.108 Scholars such as¶
Peter Yu explore the connection between IP and human rights.109 Angela¶ Riley urges making distinctions
between IP rights that further the interest¶ of a mere few but dominant entities, for example the Walt Disney¶
Corporation, “and those that are designed to put indigenous peoples on¶ equal footing with other actors in the
global market.”110¶ The debate over traditional knowledge, indigenous peoples and IP¶ appropriation can
provide insight into the dynamic of African-American¶ cultural appropriation. While African-Americans are not
48
an “indigenous”¶ people to North America, many commonalties exist between the treatment¶ of early blues
artists and native peoples.111 In the area of traditional knowledge (“TK”), asymmetries of power between the
developed and the¶ colonial or developing world in the nineteenth century “led to certain types¶ of knowledge
that were concentrated in the Third World as essentially¶ being deemed public domain resources that were
freely appropriable.”112¶ Although no single definition of TK exists, it has been described as¶ “indigenous and
local community knowledge, innovations, and¶ practices . . . often collectively owned and transmitted orally
from¶ generation to generation.”113 As Paul Kuruk has noted, the group-focused,¶ collective nature of TK
makes it difficult to protect under traditional IP law¶ norms.114¶ Christine Haight Farley was one of the first
scholars to analyze the¶ disadvantages IP imposed on traditional knowledge and indigenous¶ peoples.115
Professor Farley noted that indigenous people in recent decades¶ have attempted to use IP law “to protect their
cultural heritage from¶ external poaching.”116 Traditional knowledge of indigenous peoples, like¶ the works of
early black blues artists, has presented challenges to IP¶ protection, and often for the same reasons. As
Professor Farley noted, the fixation requirement of copyright, for¶ example, can constitute a barrier to
protection because folklore and¶ traditional knowledge “may never be recorded in any tangible form.”117¶
Traditional knowledge, such as folklore, has existed “beyond the reach of¶ conventional IP models of
ownership and moral rights.”118 Daniel Gervais¶ has provided three main areas in which IP has been
incompatible with TK¶ protection.119 One, TK has been under-protected because it is too old and¶ therefore in
the public domain.120 Two, TK does not qualify for IP¶ protection because the author of the material cannot be
identified.121 Three,¶ TK is often created by large, diffused groups, whereas western IP¶ paradigms are based
on creation by individuals.122 In contrast, aboriginal¶ or indigenous cultures seek to protect cultural resources
“in the name of the¶ relevant community.”123¶ Analysts in the TK arena assert that the cultural appropriation
of¶ indigenous people’s works “causes cultural devastation” and reinforces¶ systems of subordination used to
oppress native groups.124 The harm of¶ appropriation in the TK context is exacerbated “because of the spiritual
or¶ sacred element in much indigenous, creative material.”125
Also, idea of economic incentives such as patents for knowledge opens up large debates of the critical
theory of innovation, which is a nice shift from the normal capitalism debates for those who weren’t persuaded
by my previous section on capitalism:
Trosow 2002
The critical theory of intellectual property policy attempts to de-couple the notion¶ of economic incentives from
innovation. Any critical theory of intellectual property must¶ explicitly treat this issue of incentives because of
its centrality as a justification in¶ traditional intellectual property theory. The assumption that direct economic
incentives¶ are a requisite for innovative and productive activity lies at the heart of traditional¶ intellectual
property theory. Marx's theory of alienation provides the conceptual tools¶ needed to show that the incentive
theory of innovation is contingent on certain historical¶ conditions that need not be accepted as universal.¶
Incentives are at the root of utilitarian justifications for intellectual property laws¶ and proponents of
expansionary laws often speak to the need for greater incentives. But¶ they do not adequately consider the
appropriate balance between incentives and costs ofover-protection. As Adam Segal (1997, p. 72) pointed out,
overprotecting intellectual¶ property is just as harmful as under protecting it:¶ “Creativity is impossible without a
rich public domain. Nothing today,¶ likely nothing since we tamed fire, is genuinely new: Culture, like science¶
and technology, grows by accretion, each new creator building on the¶ works of those who came before.
Overprotection stifles the very creative¶ forces it’s supposed to nurture.”¶ While incentives are no doubt a
relevant policy consideration, the question of the¶ minimum level of incentive needed to spur creativity and
progress remains unanswered¶ and mostly unasked. The failure of intellectual property policy analysis to
seriously¶ grapple with this important question is based on the strong coupling between the issues of¶ innovation
49
and economic incentives. It is simply presumed that direct economic¶ incentives are a requisite for innovation in
a strict causal sense. Taking this relationship¶ as an unquestioned starting point results in distortions that are only
complicated by the¶ fact that there are different types of incentives for different sorts of works. As the¶ examples
in the next section indicate, many authors publish the results of their research¶ or engage in software
development work for reasons other than direct pecuniary¶ remuneration.
With a topic that largely focuses on intellectual pursuits, one can critique the specific type of intellectual
field the affirmative highlights. For example, there is a diverse set of “bio-colonialism” literature specific to
biotechnology intellectual property:
Alain 1998
[Potter, Law Department, London School of Economics. The Inscription of Life in Law: Genes, Patents, and
Bio-Politics, The Modern Law Review, Vol. 61, No. 5, Human Genetics and the Law: Regulating a Revolution
(Sep., 1998), pp. 740-765]jap
Pieces of indigenous and remote rural peoples' very bodies are now, without any doubt, the¶ 'intellectual
property’ of the corporations and governments researching them in the North. The Papua New Guinea patent
dramatically underscores why groups like the Human Genome Diversity Project can no longer hide behind
claims to be collecting only for historical, cultural, or medical research. It is now clear that they are also
potentially shuttling the cells, DNA, and other biological materials or people into the intellectual property
portfolios and cashboxes of the life industries.
This is definitely not an exhaustive list, but I hope it shows the reader that critical debate would not
suffer under this topic. For all critical debaters who are trying to ensure that they have access to good critical
ground, think strategically before casting your ballots in favor of the completely critical topics, as you know
most policy debaters will not favorably vote these for them. Instead, aim for the middle ground topic where you
know you still have good access to the debate that you want to have so that it will outvote the far right topics.
Think of your topic process the way you think of your preference sheet.
50
Author Recommendation
While intellectual property has gained a large amount of focus from the legal system in the past few
years, the idea of intellectual property has existed for centuries. The literature is expansive on both sides, and
the current legal debate only provides incentive to choose this topic now. The idea of property will increasingly
become important in debates of United States legal processes, so providing debaters with this education is
imperative. Not only is this education important because of the current legal climate, but also because
intellectual property has only been discussed once in NDT-CEDA Debate. Even that inclusion was only one
plank in the 2003-2004 topic and it was only focused on “Harmonization of its intellectual property law with the
European Union in the area of human DNA sequences.” I can assure you all that debate from a decade ago
about intellectual property law related to human DNA sequences is not sufficient for this community.
In the next stages of the topic process, I would recommend focusing on three things:
1. If the eligibility section of the proposed resolution should have qualifiers (i.e. a list of sectors that can be
focused on) – to eliminate concerns that allowing the affirmative “all of the things” that can get patents may be
too much ground.
2. If the resolution should also include copyright eligibility – I hesitated because that opens the door to an
incredibly large area of literature. However if the first concern is applied (narrowing with a list of qualifiers), I
strongly encourage including copyright eligibility.
3. If the resolution should include reducing the amount of patents issued – I believe this allows for more ground
for critical affirmatives that want to remove patents, but this is definitely something that needs more
investigation.
51
Helpful Definitions
Eligibility for a patent
United States Code 2013
[Appendix L Consolidated Patent Laws, Title 35: Patent Law]jap
35 U.S.C. 102 Conditions for patentability; novelty and loss of right to patent.
[Editor Note: Effective March 16, 2013, 35 U.S.C. 102
as set forth herein (with the exception of subsection (g)*) will not be applicable to any patent application subject to the first inventor to
file provisions of the AIA (see 35 U.S.C. 100 (note)). See 35 U.S.C. 102 (not yet in force) for the law that will otherwise be applicable
after March 15, 2013.]
A person shall be entitled to a patent unless —
(a) the invention was known or used by others in this country, or patented or described in a printed publication in this or a
foreign country, before the invention thereof by the applicant for patent, or
(b) the invention was patented or described in a printed publication in this or a foreign country or in public use or on sale in this
country, more than one year prior to the date of the application for patent in the United States, or
(c) he has abandoned the invention, or
(d) the invention was first patented or caused to be patented, or was the subject of an inventor’s certificate, by the applicant or
his legal representatives or assigns in a foreign country prior to the date of the application for patent in this country on an
application for patent or inventor’s certificate filed more than twelve months before the filing of the application in the U nited
S tates, or
(e) the invention was described in — (1) an application for patent, published under section 122(b),
by another filed in the United States before the invention by the applicant for patent or (2) a patent granted on an application
for patent by another filed in the United States before the invention by the applicant for patent, except that an international
application filed under the treaty defined in section 351(a) shall have the effects for the purposes of this subsection of an
application filed in the United States only if the international application designated the United States and was published under
Article 21(2) of such treaty in the English language; or
(f) he did not himself invent the subject matter sought to be patented, or
(g) (1) during the course of an interference conducted under section 135 or section 291, another inventor involved therein
establishes, to the extent permitted in section 104, that before such person’s invention thereof the invention was made by such
other inventor and not abandoned, suppressed, or concealed, or
(2) before such person’s invention thereof, the invention was made in this country by another inventor who had not
abandoned, suppressed, or concealed it. In determining priority of invention under this subsection, there shall be considered
not only the respective dates of conception and reduction to practice of the invention, but also the reasonable diligence of one
who was first to conceive and last to reduce to practice, from a time prior to conception by the other.
(Amended July 28, 1972, Public Law 92-358, sec. 2, 86 Stat. 501; Nov. 14, 1975, Public Law 94-131, sec. 5, 89 Stat. 691; subsection
(e) amended Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-565 (S. 1948 sec. 4505); subsection (g) amended
Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-590 (S. 1948 sec. 4806); subsection (e) amended Nov. 2, 2002,
Public Law 107-273, sec. 13205, 116 Stat. 1903.)
*NOTE: Effective March 16, 2013 , the provisions of 35 U.S.C. 102(g), as in effect on March 15, 2013 , shall apply to each
claim of an application for patent, and any patent issued thereon, for which the first inventor to file provisions of the AIA
apply (see 35 U.S.C. 100 (note), if such application or patent contains or contained at any time—
(A) a claim to an invention having an effective filing date as defined in section 100(i) of title 35, United States Code, that occurs
before March 16, 2013; or
(B) a specific reference under section 120 , 121, or 365(c) of title 35, United States Code, to any patent or application that
contains or contained at any time such a claim.
Eligibility for Patent

35 U.S.C. 102 (not yet in force) patentability; novelty.

Conditions for
[Editor Note: Effective March 16, 2013, 35 U.S.C. 102 will read as set forth below, and shall apply to any patent application subject
to the first inventor to file provisions of the AIA (see 35 U.S.C. 100 (note)). See 35 U.S.C. 102 (pre-AIA) for the law that will
otherwise be applicable after March 15, 2013.]
(a) NOVELTY; PRIOR ART.—A person shall be entitled to a patent unless—
52
(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to
the public before the effective filing date of the claimed invention; or
(2) the claimed invention was described in a patent issued under section 151, or in an application for patent published or
deemed published under section 122(b), in which the patent or application, as the case may be, names another inventor and was
effectively filed before the effective filing date of the claimed invention.
(b) EXCEPTIONS. —
(1) DISCLOSURES MADE 1 YEAR OR LESS
BEFORE THE EFFECTIVE FILING DATE OF THE CLAIMED INVENTION.—A disclosure made 1 year or less before the
effective filing date of a claimed invention shall not be prior art to the claimed invention under subsection (a)(1) if—
(A) the disclosure was made by the inventor or joint inventor or by another who obtained the subject matter disclosed directly
or indirectly from the inventor or a joint inventor; or
(B) the subject matter disclosed had, before such disclosure, been publicly disclosed by the inventor or a joint inventor or
another who obtained the subject matter disclosed directly or indirectly from the inventor or a joint inventor.
(2) DISCLOSURES APPEARING IN APPLICATIONS AND PATENTS.—A disclosure shall not be prior art to a claimed
invention under subsection (a)(2) if—
(A) the subject matter disclosed was obtained directly or indirectly from the inventor or a joint inventor;
(B) the subject matter disclosed had, before such subject matter was effectively filed under subsection (a)(2), been publicly
disclosed by the inventor or a joint inventor or another who obtained the subject matter disclosed directly or indirectly from
the inventor or a joint inventor; or
(C) the subject matter disclosed and the claimed invention, not later than the effective filing date of the claimed invention, were
owned by the same person
or subject to an obligation of assignment to the same person.
(c) COMMON OWNERSHIP UNDER JOINT RESEARCH AGREEMENTS.—Subject matter disclosed and a claimed
invention shall be deemed to have been owned by the same person or subject to an obligation of assignment to the same person
in applying the provisions of subsection (b)(2)(C) if—
(1) the subject matter disclosed was developed and the claimed invention was made by, or on behalf of, 1 or more parties to a
joint research agreement that was in effect on or before the effective filing date of the claimed invention;
(2) the claimed invention was made as a result of activities undertaken within the scope of the joint research agreement; and
(3) the application for patent for the claimed invention discloses or is amended to disclose the names of the parties to the joint
research agreement.
(d) PATENTSANDPUBLISHEDAPPLICATIONS EFFECTIVE AS PRIOR ART.—For purposes of determining whether a
patent or application for patent is prior art to a claimed invention under subsection (a)(2), such patent or application shall be
considered to have been effectively filed, with respect to any subject matter described in the patent or application—
(1) if paragraph (2) does not apply, as of the actual filing date of the patent or the application for patent; or
(2) if the patent or application for patent is entitled to claim a right of priority under section 119, 365(a), or 365(b) or to claim
the benefit of an earlier filing date under section 120, 121, or 365(c), based upon 1 or more prior filed applications for patent, as
of the filing date of the earliest such application that describes the subject matter.
Eligibility for patent

35 U.S.C. 103 (not yet in force) Conditions for patentability; non-obvious subject matter.¶ [Editor Note: Effective March 16, 2013,
35 U.S.C. 103 will read as set forth below, and shall apply to any patent application subject to the first inventor to file provisions
of the AIA (see 35 U.S.C. 100 (note)). See 35 U.S.C. 103 (pre-AIA) for the law that will otherwise be applicable after
March 15, 2013.]¶ A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not
identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that
the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person
having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in
which the invention was made.¶ (Amended Nov. 8, 1984, Public Law 98-622, sec. 103, 98 Stat. 3384; Nov. 1, 1995, Public Law 104-
41, sec.1, 109 Stat. 3511; subsection (c) amended Nov. 29, 1999, Public Law 106-113, sec. 1000(a)(9), 113 Stat. 1501A-591 (S. 1948
sec. 4807); subsection (c) amended Dec. 10, 2004, Public Law 108-453, sec. 2, 118 Stat. 3596; amended Sept. 16, 2011, Public Law
112-29, secs. 20(j) (effective Sept. 16, 2012) and 3(c) (effective March 16, 2013), 125 Stat. 284.) ¶ (Public Law 112-29, sec. 14, 125
Stat. 284 (Sept. 16, 2011) provided that tax strategies are deemed to be within the prior art (see AIA § 14).)
53
Three types of patents:
1. Utility
2. Design
3. Plant
FindLaw 2013
What are the different types of patents? ¶ There are three general categories of patents. They are:¶ 1. Utility patents¶ 2. Design patents¶
3. Plant patents¶ Utility patents are what most people associated with patents and are the type most frequently granted.
Utility patents cover:¶ Processes—business
processes, computer software, engineering methods, etc.¶
Machines—anything that performs a function¶ Articles of manufacture— a catchall category that covers
anything manufactured¶ Composition of matter—pharmaceuticals, chemical compounds, artificial genetic creations¶ A utility
patent is the most powerful form of protection, but also the most difficult to attain (see requirements below), and last 20 years
from the date of filing.¶ Design patents protect non-functional, purely ornamental designs . For design patents,
applicants don't have to prove "utility," step 3 above. In fact, the design is required to be non-functional. Design patents are
more easily issued, last only 14 years, and offer more limited protection than a utility patent. For example, another design has to
have a virtually identical design to infringe upon a patented design. ¶ Plant patents protect asexually reproduced plants
and sexually reproduced plant seeds. These typically arise from scientific experiments combining different plant
species to create new plants and plant seeds and are the least frequently granted patents. Plant patents last 17 years.
USPTO is the patent actor

35 U.S.C. 1 Establishment.
(a) ESTABLISHMENT.— The U nited S tates P atent and T rademark O ffice is established as an agency of the
United States, within the Department of Commerce . In carrying out its functions, the United States Patent and
Trademark Office shall be subject to the policy direction of the Secretary of Commerce, but otherwise shall retain responsibility
for decisions regarding the management and administration of its operations and shall exercise independent control of its
budget allocations and expenditures, personnel decisions and processes, procurements, and other administrative and
management functions in accordance with this title and applicable provisions of law. Those operations designed to grant and
issue patents and those operations which are designed to facilitate the registration of trademarks shall be treated as separate
operating units within the Office. (b) OFFICES.— The United States Patent and Trademark Office shall maintain its principal office
in the metropolitan Washington, D.C., area, for the service of process and papers and for the purpose of carrying out its functions.The
United States Patent and Trademark Office shall be deemed, for purposes of venue in civil actions, to be a resident of the district in
which its principal office is located, except where jurisdiction is otherwise provided by law. The United States Patent and Trademark
Office may establish satellite offices in such other places in the United States as it considers necessary and appropriate in the conduct
of its business.
USPTO Powers:
35 U.S.C. 2 Powers and duties.
(a) IN GENERAL.— The U nited S tates P atent and T rademark O ffice subject to the policy direction of the Secretary of
Commerce—
(1) shall be responsible for the granting and issuing of patents and the registration of trademarks; and (2) shall be responsible
for disseminating to the public information with respect to patents and trademarks.
(b) SPECIFIC POWERS.— The Office—
(1) shall adopt and use a seal of the Office, which shall be judicially noticed and with which letters patent, certificates of
trademark registrations, and papers
issued by the Office shall be authenticated;
(2) may establish regulations, not inconsistent
with law, which—
(A) shall govern the conduct of proceedings
in the Office;
(B) shall be made in accordance with section
553 of title 5;
54
(C) shall facilitate and expedite the
processing of patent applications, particularly those which can be filed, stored, processed, searched, and retrieved
electronically, subject to the provisions of section 122 relating to the confidential status of applications;
(D) may govern the recognition and conduct of agents, attorneys, or other persons representing applicants or other parties
before the Office, and may require them, before being recognized as representatives of applicants or other persons, to show
that they are of good moral character and reputation and are possessed of the necessary qualifications to render to applicants
or other persons valuable service, advice, and assistance in the presentation or prosecution of their applications or other
business before the Office;
(E) shall recognize the public interest in continuing to safeguard broad access to the United States patent system through the
reduced fee structure for small entities under section 41(h(1);
(F) provide for the development of a performance-based process that includes quantitative and qualitative measures and
standards for evaluating cost-effectiveness and is consistent with the principles of impartiality and competitiveness; and
(G) may, subject to any conditions prescribed by the Director and at the request of the patent applicant, provide for
prioritization of examination of applications for products, processes, or technologies that are important to the national
economy or national competitiveness without recovering the aggregate extra cost of providing such prioritization,
notwithstanding section 41 or any other provision of law;
(3) may acquire, construct, purchase, lease, hold, manage, operate, improve, alter, and renovate any real, personal, or mixed
property, or any interest therein, as it considers necessary to carry out its functions;
(4) (A) may make such purchases, contracts for the construction, or management and operation of facilities, and contracts for
supplies or services, without regard to the provisions of subtitle I and chapter 33 of title 40, division C (except sections 3302,
3501(b), 3509, 3906, 4710, and 4711) of subtitle I of title 41, and the McKinney-Vento Homeless Assistance Act (42 U.S.C. 11301 et
seq.);
(B) may enter into and perform such purchases and contracts for printing services, including the process of composition,
platemaking, presswork, silk screen processes, binding, microform, and the products of such processes, as it considers
necessary to carry out the functions of the Office, without regard to sections 501 through 517 and 1101 through 1123 of title 44;
(5) may use, with their consent, services, equipment, personnel, and facilities of other departments, agencies, and
instrumentalities of the Federal Government, on a reimbursable basis, and cooperate with such other departments, agencies,
and instrumentalities in the establishment and use of services, equipment, and facilities of the Office;
(6) may, when the Director determines that it is practicable, efficient, and cost-effective to do so, use, with the consent of the
United States and the agency, instrumentality, Patent and Trademark Office, or international organization concerned, the
services, records, facilities, or personnel of any State or local government agency or instrumentality or foreign patent and
trademark office or international organization to perform functions on its behalf;
(7) may retain and use all of its revenues and receipts, including revenues from the sale, lease, or disposal of any real, personal,
or mixed property, or any interest therein, of the Office;
(8) shall advise the President, through the Secretary of Commerce, on national and certain international intellectual property
policy issues;
(9) shall advise Federal departments and agencies on matters of intellectual property policy in the United States and
intellectual property protection in other countries;
(10) shall provide guidance, as appropriate, with respect to proposals by agencies to assist foreign governments and
international intergovernmental organizations on matters of intellectual property protection;
(11) may conduct programs, studies, or exchanges of items or services regarding domestic and international intellectual
property law and the effectiveness of intellectual property protection domestically and throughout the world, and the Office is
authorized to expend funds to cover the subsistence
expenses and travel-related expenses, including per diem, lodging costs, and transportation costs, of persons attending such
programs who are not Federal employees;
(12) (A) shall advise the Secretary of Commerce on programs and studies relating to intellectual property policy that are
conducted, or authorized to be conducted, cooperatively with foreign intellectual property offices and international
intergovernmental organizations; and
(B) may conduct programs and studies described in subparagraph (A); and
(13) (A) in coordination with the Department of State, may conduct programs and studies cooperatively with foreign
intellectual property offices and international intergovernmental organizations; and
(B) with the concurrence of the Secretary of State, may authorize the transfer of not to exceed $100,000 in any year to the
Department of State for the purpose of making special payments to international intergovernmental organizations for studies
and programs for advancing international cooperation concerning patents, trademarks, and other matters
USPTO general definitions

55
(b) The term “funding agreement” means any contract, grant, or cooperative agreement entered into between any Federal
agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental,
or research work funded in whole or in part by the Federal Government. Such term includes any assignment, substitution of
parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a
funding agreement as herein defined.
(c) The term “contractor” means any person, small business firm, or nonprofit organization that is a party to a funding
agreement.
(d) The term “invention” means any invention or discovery which is or may be patentable or otherwise protectable under this
title or any novel variety of plant which is or may be protectable under the Plant Variety Protection Act (7 U.S.C. 2321, et
seq.).
(e) The term “subject invention” means any invention of the contractor conceived or first actually reduced to practice in
the performance of work under a funding agreement: Provided, That in the case of a variety of plant, the date of
determination (as defined in section 41(d) of the Plant Variety Protection Act (7 U.S.C. 2401(d)) must also occur during the
period of contract performance.
(f) The term “practical application” means to manufacture in the case of a composition or product, to practice in the case
of a process or method, or to operate in the case of a machine or system; and, in each case, under such conditions as to
establish that the invention is being utilized and that its benefits are to the extent permitted by law or Government regulations
available to the public on reasonable terms.
(g) The term “made” when used in relation to any invention means the conception or first actual reduction to practice of such
invention.
(h) The term “small business firm” means a small business concern as defined at section 2 of Public Law 85-536 (15 U.S.C. 632)
and implementing regulations of the Administrator of the Small Business Administration.
(i) The term “nonprofit organization” means universities and other institutions of higher education or an organization of
the type described in section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)) and exempt from taxation under
section 501(a) of the Internal Revenue Code (26 U.S.C. 501(a)) or any nonprofit scientific or educational organization qualified
under a State nonprofit organization statute.
Patents are property ownership

35 U.S.C. 261 Ownership; assignment.¶ Subject to the provisions of this title, patents shall have the attributes of personal
property.¶ Applications for patent, patents, or any interest therein, shall be assignable in law by an instrument in writing. The
applicant, patentee, or his assigns or legal representatives may in like manner grant and convey an exclusive right under his
application for patent, or patents, to the whole or any specified part of the United States. A certificate of acknowledgment under
the hand and¶ official seal of a person authorized to administer oaths¶ within the United States, or, in a foreign country, of a¶
diplomatic or consular officer of the United States or an¶ officer authorized to administer oaths whose authority is¶ proved by a
certificate of a diplomatic or consular officer ¶ of the United States, or apostille of an official designated¶ by a foreign country
which, by treaty or convention,¶ accords like effect to apostilles of designated officials in ¶ the United States, shall be prima facie
evidence of the execution of an assignment, grant, or conveyance of a patent or application for patent. An assignment, grant, or
conveyance shall be void as¶ against any subsequent purchaser or mortgagee for a¶ valuable consideration, without notice,
unless it is¶ recorded in the Patent and Trademark Office within three¶ months from its date or prior to the date of such¶
subsequent purchase or mortgage.
Right to compensation
35 U.S.C. 183 Right to compensation.

An applicant, his successors, assigns, or legal representatives, whose patent is withheld as herein provided, shall have the right,
beginning at the date the applicant is notified that, except for such order, his application is otherwise in condition for
allowance, or February 1, 1952, whichever is later, and ending six years after a patent is issued thereon , to apply to
the head of any department or agency who caused the order to be issued for compensation for the damage caused by the order
of secrecy and/or for the use of the invention by the Government, resulting from his disclosure. The right to compensation for
use shall begin on the date of the first use of the invention by the Government. The head of the department or agency is
authorized, upon the presentation of a claim, to enter into an agreement with the applicant, his successors, assigns, or legal
representatives, in full settlement for the damage and/or use. This settlement agreement shall be conclusive for all purposes
56
notwithstanding any other provision of law to the contrary. If full settlement of the claim cannot be effected, the head of the
department or agency may award and pay to such applicant, his successors, assigns, or legal representatives, a sum not
exceeding 75 per centum of the sum which the head of the department or agency considers just compensation for the damage
and/or use. A claimant may bring suit against the United States in the United States Court of Federal Claims or in the District
Court of the United States for the district in which such claimant is a resident for an amount which when added to the award
shall constitute just compensation for the damage and/or use of the invention by the Government. The owner of any patent
issued upon an application that was subject to a secrecy order issued pursuant to section 181, who did not apply for compensation as
above provided, shall have the right, after the date of issuance of such patent, to bring suit in the United States Court of
Federal Claims for just compensation for the damage caused by reason of the order of secrecy and/or use by the Government
of the invention resulting from his disclosure. The right to compensation for use shall begin on the date of the first use of the
invention by the Government. In a suit under the provisions of this section the United States may avail itself of all defenses it may
plead in an action under section 1498 of title 28. This section shall not confer a right of action on anyone or his successors, assigns,
or legal representatives who, while in the full-time employment or service of the United States, discovered, invented, or
developed the invention on which the claim is based.
National Applications (Patent)

Code of Federal Regulations
[37 C.F.R. § 1.9 Definitions]
(a)(1) A national application as used in this chapter means a U.S. application for patent which was either filed in the
Office under 35 U.S.C. 111, or an international application filed under the Patent Cooperation Treaty in which the basic national
fee under 35 U.S.C. 41(a)(1)(F) has been paid.
(2) A provisional application as used in this chapter means a U.S. national application for patent filed in the Office under 35
U.S.C. 111(b).
(3) A nonprovisional application as used in this chapter means a U.S. national application for patent which was either filed in
the Office under 35 U.S.C. 111(a), or an international application filed under the Patent Cooperation Treaty in which the basic
national fee under 35 U.S.C. 41(a)(1)(F) has been paid.
International Applications (Patent)

(b) An international application as used in this chapter means an international application for patent filed under the Patent
Cooperation Treaty prior to entering national processing at the Designated Office stage.
Inventor
(d)
(1) The term inventor or inventorship as used in this chapter means the individual or, if a joint invention, the individuals
collectively who invented or discovered the subject matter of the invention.
(2) The term joint inventor or co-inventor as used in this chapter means any one of the individuals who invented or discovered
the subject matter of a joint invention.
Joint research agreement

(e) The term joint research agreement as used in this chapter means a written contract, grant, or cooperative agreement
entered into by two or more persons or entities for the performance of experimental, developmental, or research work in the
field of the claimed invention.
Claimed invention
57
(f) The term claimed invention as used in this chapter means the subject matter defined by a claim in a patent or an
application for a patent.
National security classified

(i) National security classified as used in this chapter means specifically authorized under criteria established by an Act of
Congress or Executive Order to be kept secret in the interest of national defense or foreign policy and, in fact, properly
classified pursuant to such Act of Congress or Executive Order.
Patent application procedure must include 3 things

35 U.S.C. 111 Application.

[Editor Note: Applicable to any patent application filed on or after September 16, 2012. See 35 U.S.C. 111 (pre-AIA) for the law
otherwise applicable.]
(a) IN GENERAL.—
(1) WRITTEN APPLICATION .—An
application for patent shall be made, or authorized to be made, by the inventor, except as otherwise provided in this title, in
writing to the Director.
(2) CONTENTS.—Such application shall include—
(A) a specification as prescribed by section 112
(B) a drawing as prescribed by section 113
(C) an oath or declaration as prescribed by section 115.
(3) FEE AND OATH OR DECLARATION .—The application must be accompanied by the fee required by law. The fee
and oath or declaration may be submitted after the specification and any required drawing are submitted, within such period
and under such conditions, including the payment of a surcharge, as may be prescribed by the Director.
(4) FAILURE TO SUBMIT.—Upon failure to submit the fee and oath or declaration within such prescribed period, the
application shall be regarded as abandoned, unless it is shown to the satisfaction of the Director that the delay in submitting the
fee and oath or declaration was unavoidable or unintentional. The filing date of an application shall be the date on which the
specification and any required drawing are received in the Patent and Trademark Office.
Specification
35 U.S.C. 112 Specification.

(a) IN GENERAL.—The specification shall contain a written description of the invention, and of the manner and process of
making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains,
or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the
inventor or joint inventor of carrying out the invention.
(b) CONCLUSION.—The specification shall conclude with one or more claims particularly pointing out and distinctly claiming
the subject matter which the inventor or a joint inventor regards as the invention.
Oath/declaration
35 U.S.C. 115 Inventor’s oath or declaration.

(a) NAMING THE INVENTOR; INVENTOR’S OATH OR DECLARATION .—An application for patent that
is filed under section 111(a) or commences the national stage under section 371 shall include, or be amended to include, the name
58
of the inventor for any invention claimed in the application. Except as otherwise provided in this section, each individual who is
the inventor or a joint inventor of a claimed invention in an application for patent shall execute an oath or declaration in
connection with the application.
(b) REQUIRED STATEMENTS.—An oath or declaration under subsection (a) shall contain statements that—
(1) the application was made or was authorized to be made by the affiant or declarant; and
(2) such individual believes himself or herself to be the original inventor or an original joint inventor of a claimed invention in
the application.
Oath of applicant
35 U.S.C. 115 (pre-AIA) Oath of applicant .

[Editor Note: Not applicable to any patent application filed on or after September 16, 2012. See 35 U.S.C. 115 for the law otherwise
applicable.]
The applicant shall make oath that he believes himself to be the original and first inventor of the process, machine, manufacture,
or composition of matter, or improvement thereof, for which he solicits a patent; and shall state of what country he is a citizen.
Such oath may be made before any person within the U nited S tates authorized by law to administer oaths, or, when made in a
foreign country, before any diplomatic or consular officer of the United States authorized to administer oaths, or before any
officer having an official seal and authorized to administer oaths in the foreign country in which the applicant may be, whose
authority is proved by certificate of a diplomatic or consular officer of the United States, or apostille of an official designated
by a foreign country which, by treaty or convention, accords like effect to apostilles of designated officials in the United States.
Such oath is valid if it complies with the laws of the state or country where made. When the application is made as provided in
this title by a person other than the inventor, the oath may be so varied in form that it can be made by him. For purposes of this
section, a consular officer shall include any United States citizen serving overseas, authorized to perform notarial functions pursuant to
section 1750 of the Revised Statutes, as amended (22 U.S.C. 4221).
Inventors
35 U.S.C. 116 Inventors .

[Editor Note: Applicable to proceedings commenced on or after Sept. 16, 2012. See 35 U.S.C. 116 (pre-AIA) for the law otherwise
applicable.]
(a) JOINT INVENTIONS.—When an invention is made by two or more persons jointly, they shall apply for patent jointly and
each make the required oath, except as otherwise provided in this title. Inventors may apply for a patent jointly even though
(1) they did not physically work together or at the same time, (2) each did not make the same type or amount of contribution,
or (3) each did not make a contribution to the subject matter of every claim of the patent.
(b) OMITTED INVENTOR.—If a joint inventor refuses to join in an application for patent or cannot be found or reached after
diligent effort, the application may
be made by the other inventor on behalf of himself and the omitted inventor. The Director, on proof of the pertinent facts and
after such notice to the omitted inventor as he prescribes, may grant a patent to the inventor making the application, subject to the
same rights which the omitted inventor would have had if he had been joined. The omitted inventor may subsequently join in
the application.
Contents and term of a patent

35 U.S.C. 154 Contents and term of patent; provisional rights.

(a) IN GENERAL.—
(1) CONTENTS .—Every patent shall contain
a short title of the invention and a grant to the patentee, his heirs or assigns, of the right to exclude others from making, using,
offering for sale, or selling the invention throughout the United States or importing the invention into the United States, and, if
the invention is a process, of the right to exclude others from using, offering for sale or selling throughout the United States, or
importing into the United States, products made by that process, referring to the specification for the particulars thereof.
59
(2) TERM .—Subject to the payment of fees under this title, such grant shall be for a term beginning on the date on which the
patent issues and ending 20 years from the date on which the application for the patent was filed in the United States or, if the
application contains a specific reference to an earlier filed application or applications under section 120, 121, or 365(c), from
the date on which the earliest such application was filed.
60
Other Sources
THE PATENT ELIGIBILITY OF¶ DIAGNOSTIC METHODS AFTER¶ PROMETHEUS'. A REDEFINED TEST¶ FOR
TRANSFORMATION¶ Scott Frederick Peachman, HEALTH MATRDC [Vol. 22:589]
SEEKING A BETTER PRESCRIPTION FOR¶ PHYSICIANS: PATENT ELIGIBILITY FOR¶ DIAGNOSTIC METHODS IN A
POST-BILSKI AND¶ PROMETHEUS ERA¶ Julianne Befeler, SETON HALL LEGISLATIVE JOURNAL Vol. 35:2
Bilski v. Kappos: the US Supreme Court broadens¶ patent subject-matter eligibility¶ William J Simmons. nature biotechnology
volume 28 number 8 august 2010
INCENTIVE FOR INNOVATION OR INVITATION TO INHUMANITY?:¶ A HUMAN RIGHTS ANALYSIS OF GENE

PATENTING AND THE CASE¶ OF MYRIAD GENETICS¶ Laurie E. Abbott, UTAH LAW REVIEW [NO. 1] 2012
Anchoring gene patent eligibility to its¶ constitutional mooring¶ Kenneth G Chahine, nature biotechnology volume 28 number 12
december 2010
Federal Circuit Holds Isolated DNA Is Patent-Eligible - Association for¶ Molecular Pathology v. United States Patent and Trademark
Office (Myriad Illf, American Journal of Law & Medicine, 38 (2012): 755-757¶ American Society of Law, Medicine & Ethics¶
Boston University School of Law
THE PARADOX OF "ABSTRACT IDEAS"¶ Alan L. Durham' UTAH LAW REVIEW [NO. 3] 2011
Texas Law Review¶ Volume 83, Number 4, March 2005¶ Do Patents Facilitate Financing in the Software¶ Industry?¶ Ronald J. Mann
Bilski: Assessing the Impact of a Newly Invigorated Patent-Eligibility¶ Doctrine on the Pharmaceutical Industry and the Future of
Personalized¶ Medicine¶ Christopher M. Holman, Current Topics in Medicinal Chemistry, 2010, 10, 1937-1949
Patent Eligibility of Programming¶ Languages and Tools¶ Sebastian Zimmeck, TUL. J. TECH. & INTELL. PROP. [Vol. 13] 2010
Semiotics 101: Taking the Printed Matter Doctrine¶ Seriously, KEVIN EMERSON COLLINS, INDIANA LAW JOURNAL [Vol.
85:1379]
A COST-BENEFIT APPROACH TO PATENT¶ OBVIOUSNESS¶ TUN-JEN CHIANG^ ST JOHN'S LAW REVIEW [Vol. 82:39]
2008
AN OVERVIEW OF PATENTABLE SUBJECT MATTER AND THE EFFECT OF MAYO COLLABORATIVE SERVICES V.
PROMETHEUS LABORATORIES, INC.
Lambillotte, Veronica. Case Western Reserve Law Review. Winter2012, Vol. 63 Issue 2, p635-651. 17p.
BILSKI V. KAPPOS: SIDELINE ANALYSIS FROM THE FIRST INNING OF PLAY.

By: Abraham, Ebby. Berkeley Technology Law Journal. 2011 Annual Review, Vol. 26 Issue 1, p15-65. 51p.
IN RE BILSKI AND THE "MACHINE-OR-TRANSFORMATION" TEST: RECEDING BOUNDARIES FOR PATENT-ELIGIBLE

SUBJECT MATTER.
By: Moore, Matthew. Duke Law & Technology Review. 4/14/2010, Issue 5, p1-18. 18p.
NOT SO OBVIOUS AFTER ALL: PATENT LAW'S NONOBVIOUSNESS REQUIREMENT, KSR, AND THE FEAR OF
HINDSIGHT BIAS.
By: Lunney, Jr., Glynn S.; Johnson, Christian T. Georgia Law Review. Fall2012, Vol. 47 Issue 1, p41-111. 71p.
SECONDARY CONSIDERATIONS IN NONOBVIOUSNESS ANALYSIS: THE USE OF OBJECTIVE INDICIA FOLLOWING

KSR V. TELEFLEX.
By: Thomas, Natalie A. New York University Law Review. Dec2011, Vol. 86 Issue 6, p2070-2111. 42p.
VISUAL INVENTION.
By: Burstein, Sarah. Lewis & Clark Law Review. Spring2012, Vol. 16 Issue 1, p169-214. 46p. 1 Illustration.
The Inducement Standard of Patentability

By: Abramowicz, Michael; Duffy, John F. Yale Law Journal. May2011, Vol. 120 Issue 7, p1590-1680. 91p.
61
Isn't It Obvious? How Klein's Definition of Analogous Prior Art Conflicts with the Supreme Court's Vision for Obviousness.
By: Rollins, Samantha M. Iowa Law Review. Mar2013, Vol. 98 Issue 3, p1377-1397. 21p.
APPLES ARE NOT COMMON SENSE IN VIEW OF ORANGES: TIME TO REFORM KSR'S ILLUSORY OBVIOUSNESS
STANDARD?
By: Le Duc, Timothy J. Journal of Art, Technology & Intellectual Property Law. Fall2010, Vol. 21 Issue 1, p49-73. 25p.
PATENT TROLLS WHO, WHAT, WHERE & HOW TO DEFEND AGAINST THEM. (cover story).
By: Vrountas, Christopher T.; Loftus, Richard S.; Palmer, Cori Phillips. New Hampshire Bar Journal. Fall2011, Vol. 52 Issue 3, p40-
45. 6p.
Protecting Nanotechnology Inventions: Prosecuting in an Unpredictable World.

By: Mills, Jeffrey K.; Fitzsimmons, Jason A.; Rodkey, Kevin. Nanotechnology Law & Business. 2010, Vol. 7 Issue 3, p223-238. 16p.
THE ROAD TO TRANSPARENCY: ABOLISHING BLACK-BOX VERDICTS ON PATENT OBVIOUSNESS.

By: Ghosh, Indraneel. Berkeley Technology Law Journal. 2011 Annual Review, Vol. 26 Issue 1, p171-195. 25p.
Fast-Tracking Your Way to a Patent.

By: Kunin, Stephen G.; Parthum, Jonathan W. IP Litigator. Jul/Aug2012, Vol. 18 Issue 4, p1-5. 5p.
Reinventing Usefulness.
By: Risch, Michael. Brigham Young University Law Review. 2010, Vol. 2010 Issue 4, p1195-1255. 61p.
Competition Issues in the Seed Industry and the Role of Intellectual Property.
By: Moschini, GianCarlo. Choices: The Magazine of Food, Farm & Resource Issues. 2010 2nd Quarter, Vol. 25 Issue 2, Special
section p1-14. 14p. 2 Charts, 2 Graphs.
Patentable Subject Matter and Institutional Choice.

By: Golden, John M. Texas Law Review. Apr2011, Vol. 89 Issue 5, p1041-1111. 71p.
An "Exclusive" Application of an Abstract Idea: Clarification of Patent-Eligible Subject Matter After.

By: Pulley, Stephen. Brigham Young University Law Review. 2011, Vol. 2011 Issue 4, p1223-1257. 35p.
DRAWING A LINE IN THE PATENT SUBJECT-MATTER SANDS: DOES EUROPE PROVIDE A SOLUTION TO THE
SOFTWARE AND BUSINESS METHOD PATENT PROBLEM?
By: Marsnik, Susan J.; Thomas, Robert E. Boston College International & Comparative Law Review. Spring2011, Vol. 34 Issue 2,
p227-327. 101p.
FORTY YEARS OF WONDERING IN THE WILDERNESS AND No CLOSER TO THE PROMISED LAND: BILSKI'S
SUPERFICIAL TEXTUALISM AND THE MISSED OPPORTUNITY TO RETURN PATENT LAW TO ITS TECHNOLOGY
MOORING.
By: Menell, Peter S. Stanford Law Review. Jun2011, Vol. 63 Issue 6, p1289-1314. 26p.
THE PARADOX OF "ABSTRACT IDEAS.".

By: Durham, Alan L. Utah Law Review. 2011, Vol. 2011 Issue 3, p797-853. 57p.
Gene and genetic diagnostic method patent claims: a comparison under current European and US patent law.
By: Huys, Isabelle; Van Overwalle, Geertrui; Matthijs, Gert. European Journal of Human Genetics. Oct2011, Vol. 19 Issue 10, p1104-
1107. 4p. DOI: 10.1038/ejhg.2011.76.
Successful European oppositions: Analysis for the patent information professional.

By: van de Kuilen, Aalt. World Patent Information. Jun2013, Vol. 35 Issue 2, p126-129. 4p. DOI: 10.1016/j.wpi.2012.12.002.
Making Sense of Prometheus.

By: Goldman, Marc; Lyerla, Bradford. Intellectual Property Litigation. Summer2012, Vol. 23 Issue 4, p9-19. 11p.
Cybermarks.
By: Burk, Dan L. Minnesota Law Review. 2010, Vol. 94 Issue 5, p1375-1416. 42p.
PROCESS PATENT PENDING.
62
By: Angelo, Basil M. Industrial Engineer: IE. Sep2010, Vol. 42 Issue 9, p31-35. 5p. 1 Color Photograph.
RESEARCH EXEMPTION - WHAT IS IT ABOUT?

By: WARDEN-HUTTON, PAUL. Chemistry in Australia. Jul2012, p11-11. 1/2p.
BIOTECH, PHARMA AND CHEMICAL INVENTION PATENT PRACTICE Q&A.

By: Jiancheng Jiang. American Lawyer. Winter2012 Asian Lawyer Supplement, p36-37. 2p.
RETHINKING NOVELTY IN PATENT LAW.

By: Seymore, Sean B. Duke Law Journal. Jan2011, Vol. 60 Issue 4, p919-976. 58p.
DO PATENTS DISCLOSE USEFUL INFORMATION?

By: Ouellette, Lisa Larrimore. Harvard Journal of Law & Technology. Spring2012, Vol. 25 Issue 2, p531-593. 63p. 5 Charts.
Corporate science in the patent system: An analysis of the semiconductor technology.

By: Malva, Antonio Della; Hussinger, Katrin. Journal of Economic Behavior & Organization. Sep2012, Vol. 84 Issue 1, p118-135.
18p. DOI: 10.1016/j.jebo.2012.07.001.
Law machines: Scale models, forensic materiality and the making of modern patent law.
By: Pottage, Alain. Social Studies of Science (Sage Publications, Ltd.). Oct2011, Vol. 41 Issue 5, p621-643. 23p. DOI:
10.1177/0306312711408484.
Semiconductor Chips, Genes, and Stem Cells: New Wine for New Bottles?
By: Rose, Simone A. American Journal of Law & Medicine. 2012, Vol. 38 Issue 1, p113-157. 45p.
Using Patents to Teach History.

By: Guise-Richardson, Cai. OAH Magazine of History. Jul2010, Vol. 24 Issue 3, p45-48. 4p.
Unsettled expectations: how recent patent decisions affect biotech.

By: Simon, Brenda M.; Scott, Christopher T. Nature Biotechnology. Mar2011, Vol. 29 Issue 3, p229-230. 2p. DOI: 10.1038/nbt.1795.
State Neutrality and Patentable Subject Matter: Developing Controversial Biotechnology.

By: Greenbaum, Dov. AJOB Neuroscience. 2010, Vol. 1 Issue 2, p59-61. 3p. DOI: 10.1080/21507741003699363.
Private and public approaches to patent hold-up in industry standard setting.

By: Simcoe, Timothy S. Antitrust Bulletin. Spring2012, Vol. 57 Issue 1, p59-87. 29p.
Patents, Presumptions, and Public Notice.

By: Holbrook, Timothy R. Indiana Law Journal. Summer2011, Vol. 86 Issue 3, p779-826. 48p.
THE MISUNDERSTOOD FUNCTION OF DISCLOSURE IN PATENT LAW.

By: Devlin, Alan. Harvard Journal of Law & Technology. Spring2010, Vol. 23 Issue 2, p401-446. 46p.
Biotechnology and Pharmaceutical Litigation.

By: Linek, Ernie. IP Litigator. May/Jun2010, Vol. 16 Issue 3, p26-29. 4p.
Knowledge disclosure as intellectual property rights protection.

By: Ponce, Carlos J. Journal of Economic Behavior & Organization. Dec2011, Vol. 80 Issue 3, p418-434. 17p. DOI:
10.1016/j.jebo.2011.04.005.
PATENT PROTECTION AND INDIAN PHARMACEUTICAL INDUSTRY.

By: Ghai, Damanjeet. International Journal of Pharmaceutical Sciences Review & Research. Jul-Aug2010, Vol. 3 Issue 2, p43-48. 6p.
The end of trade secrets?

By: Westwood, Joanna. TCE: The Chemical Engineer. Oct2011, Issue 844, p26-27. 2p.
Did R&D Firms Used to Patent? Evidence from the First Innovation Surveys.
By: NICHOLAS, TOM. Journal of Economic History. Dec2011, Vol. 71 Issue 4, p1032-1059. 28p. DOI:
10.1017/S0022050711002233.
Patent Law's Unpredictability Doctrine and the Software Arts.
63
By: Vetter, Greg R. Missouri Law Review. Summer2011, Vol. 76 Issue 3, p763-812. 50p.
PTO eases prior disclosure mandate in first-to-file rule.

By: McCARTY, MARK. Medical Device Daily. 2/19/2013, Vol. 17 Issue 33, p1-9. 2p.
COMMERCIALIZING PATENTS.
By: Sichelman, Ted. Stanford Law Review. Jan2010, Vol. 62 Issue 2, p341-411. 71p.
THE NULL PATENT.

By: Seymore, Sean B. William & Mary Law Review. May2012, Vol. 53 Issue 6, p2041-2105. 65p.
IMPACT OF PATENT SYSTEM ON HUMAN RIGHTS.

By: ARALAPPA, MALLIKARJUN. Golden Research Thoughts. Dec2012, Vol. 2 Issue 6, Special section p1-8. 8p.
Patent Secrecy Orders: Fairness Issues in Application of Invention of Secrecy Act.

By: Maune, James. Texas Intellectual Property Law Journal. Summer2012, Vol. 20 Issue 3, p471-494. 24p.
HOW MANY PATENTS DOES IT TAKE TO MAKE A DRUG? FOLLOW-ON PHARMACEUTICAL PATENTS AND
UNIVERSITY LICENSING.
By: Ouellette, Lisa Larrimore. Michigan Telecommunications & Technology Law Review. Nov2010, Vol. 17 Issue 1, p299-336. 38p.
8 Charts, 3 Graphs.
Chicago neoliberalism versus Cowles planning: Perspectives on patents and public goods in Cold War Economic Thought.
By: Van Horn, Robert; Klaes, Matthias. Journal of the History of the Behavioral Sciences. Summer2011, Vol. 47 Issue 3, p302-321.
20p. DOI: 10.1002/jhbs.20512.
WARF's Stem Cell Patents and Tensions between Public and Private Sector Approaches to Research.
By: Golden, John M. Journal of Law, Medicine & Ethics. Summer2010, Vol. 38 Issue 2, p314-331. 18p. DOI: 10.1111/j.1748-
720X.2010.00491.x.
RESEARCH LOCALLY, DIFFUSE GLOBALLY? AMERICAN UNIVERSITIES, PATENTS AND GLOBAL PUBLIC HEALTH.
By: Sampat, Bhaven N. Journal of International Affairs. Fall/Winter2010, Vol. 64 Issue 1, p69-82. 14p.
The Ethics of Intellectual Property Rights: The Impact of Traditional Knowledge and Health on International Intellectual Property
Law.
By: Kuppuswamy, Chamundeeswari. Asian Medicine. 2010, Vol. 5 Issue 2, p340-362. 23p. DOI: 10.1163/157342109X568847.
REFORMING SOFTWARE PATENTS.

By: Chien, Colleen V. Houston Law Review. Symposium 2012, Vol. 50 Issue 2, p325-390. 66p. 2 Graphs.
Whose knowledge? What values? The comparative politics of patenting life forms in the United States and Europe.
By: Parthasarathy, Shobita. Policy Sciences. Sep2011, Vol. 44 Issue 3, p267-288. 22p. DOI: 10.1007/s11077-011-9133-7.
RETHINKING NOVELTY IN PATENT LAW.

By: Seymore, Sean B. Duke Law Journal. Jan2011, Vol. 60 Issue 4, p919-976. 58p.
RULES FOR PATENTS.

By: Burstein, Michael J. William & Mary Law Review. May2011, Vol. 52 Issue 6, preceding p1747-1806. 61p.
PATENTS VS. STATUTORY EXCLUSIVITIES IN BIOLOGICAL PHARMACEUTICALS-- DO WE REALLY NEED BOTH?

By: Heled, Yaniv. Michigan Telecommunications & Technology Law Review. Spring2012, Vol. 18 Issue 2, p419-479. 61p. 2 Charts.
Patents, Innovation, and Privatization.

By: Albin, Ramona C. Science & Engineering Ethics. Dec2010, Vol. 16 Issue 4, p777-781. 5p. DOI: 10.1007/s11948-010-9234-2.
The biotechnology sector and US gene patents: Legal challenges to intellectual property rights and the impact on basic research and
development.
By: Hemphill, Thomas A. Science & Public Policy (SPP). Dec2012, Vol. 39 Issue 6, p815-826. 12p. DOI: 10.1093/scipol/scs051.
PATENT LITIGATION, PERSONAL JURISDICTION, AND THE PUBLIC GOOD.

By: Belle, Megan M. La. George Mason Law Review. Fall2010, Vol. 18 Issue 1, p43-98. 56p.
64
What Are The Respective Roles Of The Public And Private Sectors In Pharmaceutical Innovation?
By: Sampat, Bhaven N.; Lichtenberg, Frank R. Health Affairs. Feb2011, Vol. 30 Issue 2, p332-339. 8p. DOI:
10.1377/hlthaff.2009.0917.
Prizes for Pharmaceuticals? Mitigating the social ineffectiveness of the current pharmaceutical patent arrangement.
By: Muzaka, Valbona. Third World Quarterly. Feb2013, Vol. 34 Issue 1, p151-169. 19p. DOI: 10.1080/01436597.2012.755009.
Patentable Subject Matter: Morally Neutral and Context Free.

By: Greenbaum, Dov. Recent Patents on DNA & Gene Sequences. Aug2011, Vol. 5 Issue 2, p72-80. 9p. 2 Charts.
Fighting Antibiotic Resistance: Marrying New Financial Incentives To Meeting Public Health Goals.
By: Kesselheim, Aaron S.; Outterson, Kevin. Health Affairs. Sep2010, Vol. 29 Issue 9, p1689-1696. 8p. DOI:
10.1377/hlthaff.2009.0439.
Driving a decade of change: HIV/AIDS, patents and access to medicines for all.
By: Hoen, Ellen 't; Berger, Jonathan; Calmy, Alexandra; Moon, Suerie. Journal of the International AIDS Society. 2011, Vol. 14 Issue
1, p1-12. 12p. DOI: 10.1186/1758-2652-14-15.
QUANTIFYING KNOWLEDGE SPILLOVERS USING SPATIAL ECONOMETRIC MODELS.

By: Autant-Bernard, Corinne; LeSage, James P. Journal of Regional Science. Aug2011, Vol. 51 Issue 3, p471-496. 26p. 2 Charts.
DOI: 10.1111/j.1467-9787.2010.00705.x.
E-participation and e-participants: solving the patent ‘crisis’.

By: Leith, Philip. International Review of Law, Computers & Technology. Mar2012, Vol. 26 Issue 1, p7-24. 18p. DOI:
10.1080/13600869.2012.646783.
Patently Innovative: How Pharmaceutical Firms Use Emerging Patent Law to Extend Monopolies on Blockbuster Drugs and
Intellectual Property, Pharmaceuticals and Public Health: Access to Drugs in Developing Countries.
By: Lee, Stacey B. Journal of Legal Medicine. Jan-Mar2013, Vol. 34 Issue 1, p149-155. 7p. DOI: 10.1080/01947648.2013.768509.
Ensuring credit for original thought.

By: Chaddah, P. Current Science (00113891). 8/25/2012, Vol. 103 Issue 4, p350-350. 1/2p.
Patents Aren't Only for Engineers.

By: VADIVELOO, JAY. New York Times. 5/13/2012, p7. 0p.
Effects of Blocking Patents on R&D: A Quantitative DGE Analysis

Angus C. Chu
Journal of Economic Growth, Vol. 14, No. 1 (Mar., 2009), pp. 55-78
Does Good Science Lead to Valuable Knowledge? Biotechnology Firms and the Evolutionary Logic of Citation Patterns
Michelle Gittelman, Bruce Kogut
Management Science, Vol. 49, No. 4, Special Issue on Managing Knowledge in Organizations: Creating, Retaining, and Transferring
Knowledge (Apr., 2003), pp. 366-382
Evidence from Patents and Patent Citations on the Impact of NASA and other Federal Labs on Commercial Innovation
Adam B. Jaffe, Michael S. Fogarty, Bruce A. Banks
The Journal of Industrial Economics, Vol. 46, No. 2, Inside the Pin-Factory: Empirical Studies Augmented by Manager Interviews: A
Symposium (Jun., 1998), pp. 183-205
Do Patents Over-Compensate Innovators?

Vincenzo Denicolò
Economic Policy, Vol. 22, No. 52 (Oct., 2007), pp. 679+681-729
Don't Fence Me In: Fragmented Markets for Technology and the Patent Acquisition Strategies of Firms
Rosemarie Ham Ziedonis
Management Science, Vol. 50, No. 6 (Jun., 2004), pp. 804-820
The dynamics of the transfer and renewal of patents
65
Carlos J. Serrano
The RAND Journal of Economics, Vol. 41, No. 4 (Winter 2010), pp. 686-708
The Sociology of Property Rights

Bruce G. Carruthers, Laura Ariovich
Annual Review of Sociology, Vol. 30, (2004), pp. 23-46
Intellectual Property: A Chronological Compendium of Intersections between Contemporary Art and Utility Patents
Robert Thill
Leonardo, Vol. 37, No. 2 (2004), pp. 117-124
Fragmented Property Rights and Incentives for R&D

Derek J. Clark, Kai A. Konrad
Management Science, Vol. 54, No. 5 (May, 2008), pp. 969-981
Creativity or Coercion: Alternative Perspectives on Rights to Intellectual Property

Peter Lewin
Journal of Business Ethics, Vol. 71, No. 4 (Apr., 2007), pp. 441-455
Random Drift and Culture Change

R. Alexander Bentley, Matthew W. Hahn, Stephen J. Shennan
Proceedings: Biological Sciences, Vol. 271, No. 1547 (Jul. 22, 2004), pp. 1443-1450
The Hypocrisy of Forgetfulness: The Contemporary Significance of Early Innovations in Intellectual Property
Christopher May
Review of International Political Economy, Vol. 14, No. 1 (Feb., 2007), pp. 1-25
A Pluralistic Account of Intellectual Property

D. B. Resnik
Journal of Business Ethics, Vol. 46, No. 4 (Sep., 2003), pp. 319-335
Citizenship as Inherited Property

Ayelet Shachar, Ran Hirschl
Political Theory, Vol. 35, No. 3 (Jun., 2007), pp. 253-287
Knowledge Sourcing by Foreign Multinationals: Patent Citation Analysis in the U.S. Semiconductor Industry
Paul Almeida
Strategic Management Journal, Vol. 17, Special Issue: Knowledge and the Firm (Winter, 1996), pp. 155-165
Intellectual Property Rights and the Welfare Effects of Agricultural R&D

Giancarlo Moschini, Harvey Lapan
American Journal of Agricultural Economics, Vol. 79, No. 4 (Nov., 1997), pp. 1229-1242
Intellectual Property and the Pharmaceutical Industry: A Moral Crossroads between Health and Property
Nevin M. Gewertz, Rivka Amado
Journal of Business Ethics, Vol. 55, No. 3 (Dec., 2004), pp. 295-308
Democracy and Intellectual Property: Examining Trajectories of Software Piracy

Nicole Leeper Piquero, Alex R. Piquero
Annals of the American Academy of Political and Social Science, Vol. 605, Democracy, Crime, and Justice (May, 2006), pp. 104-127
The Expansion and Restructuring of Intellectual Property and Its Implications for the Developing World
David Lea
Ethical Theory and Moral Practice, Vol. 11, No. 1, Political Ethics and International Order (Feb., 2008), pp. 37-60
An Exploration of the Ideologies of Software Intellectual Property: The Impact on Ethical Decision Making
Matthew K. McGowan, Paul Stephens, Dexter Gruber
Journal of Business Ethics, Vol. 73, No. 4 (Jul., 2007), pp. 409-424
"What Innocent Bystanders?": The Impact of Law and Economics Reasoning on Rural Property Rights
66
Melanie G. Wiber
Anthropologica, Vol. 51, No. 1 (2009), pp. 29-38
Growth via Intellectual Property Rights versus Gendered Inequity in Emerging Economies: An Ethical Dilemma for International
Business
Pallab Paul, Kausiki Mukhopadhyay
Journal of Business Ethics, Vol. 91, No. 3 (Feb., 2010), pp. 359-378
The Critique of Intellectual Property

Jonathan Benthall
Anthropology Today, Vol. 15, No. 6 (Dec., 1999), pp. 1-3
Citizenship as Inherited Property

Ayelet Shachar, Ran Hirschl
Political Theory, Vol. 35, No. 3 (Jun., 2007), pp. 253-287
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Reforming the Patent System

A Controversy Paper Proposal for the 2013-2014 CEDA Season

Submitted By: Jackie Poapst

Introduction: Reasons the Debate Community Should Debate Patents .................................................................. 3

order to have a whole position.

property would be included in the United States’ Constitution:

previous reforms, the patent process still needs a major overhaul:

Reuters 2/14[Obama says patent reform needs to go farther, http://www.reuters.com/article/2013/02/15/us-obama-patent-

large corporations that the recent legislation doesn’t solve.1

Boldrin and Levine 2013

Boldrin and Levine 2013

II. Narrow Eligibility Wording:

the United States, which will be explained in later sections.

II. List Wording:

IV. Alternative Actor Option

V. Affirmative Advantage Breakdown

Patent Office resources, which all improves patent quality:

test. This test refers to what the invention is:

biggest issue in patent debates:

open the door for emerging biotechnologies

difficult to wade through – this kills innovation in these sectors:

must prove that it is useful:

development and create private monopolies

narrows the awarding of patents and is more economical:

innovations is more narrowing and optimal

United States to access the international market of generic pharmaceuticals:

to international trade regimes:

Despite widespread adoption of TRIPS, there remains

innovative ideas are created for the market:

It works- more stringent actions lead to more innovation

Reforms is vital for Innovation for actually being successful

Fixing the Nonobviousnes Standard will massively increase patents used

Reforming the nonobviousness standard increases effectiveness of the patent agency

Reforms key to develop new patent developments and effectiveness

Creates new developments

Large lit exists on both sides for abolishing the system

Boldrin and Levine 2013

Boldrin and Levine 2013

IT trade secrets disads

copyright is in the middle of a transition in information technology. It is becoming primarily a

function best in relation to biotechnology and pharmaceuticals sectors:

Carruthers and Ariovich

literature specific to intellectual property.

structures and capitalism. Here are several examples:

for the capitalism debate:

Critical Race Theory

Traditional knowledge/Indigenous peoples and critical theory

by my previous section on capitalism:

biotechnology intellectual property:

too much ground.

strongly encourage including copyright eligibility.

Eligibility for Patent

35 U.S.C. 102 (not yet in force) patentability; novelty.

Eligibility for patent

USPTO is the patent actor

USPTO general definitions

Patents are property ownership

35 U.S.C. 183 Right to compensation.

National Applications (Patent)

International Applications (Patent)

Joint research agreement

National security classified

Patent application procedure must include 3 things

35 U.S.C. 111 Application.