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

in The Patent Crisis and How the Courts Can Solve It

Published by University of Chicago Press

Published in print May 2009 | ISBN: 9780226080611
Published online March 2013 | e-ISBN: 9780226080635 | DOI:
Why Courts and Not Congress Offer a Way Out of the Crisis

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This chapter addresses the dangers of legislating industry-specific statutes. It also defends the proposition that courts, rather than Congress or the Patent and Trademark Office (PTO), are the right place to implement those policy levers. Congress has spent the last four years, from 2005 to 2008, in an ultimately futile effort to reform the patent system. The pharmaceutical and biotechnology industries opposed virtually all elements of patent reform directed at abuse. It suggests that, as a general principle, a flexible common-law approach of ongoing judicial oversight will best accommodate new and different technologies within the general framework of a patent statute. The legal standards for patentability have remained squarely with the court. The separation of functions in the patent context may yield the best of both institutions; the expertise of the agency tempered by the independence of judicial review.

Keywords: courts; Congress; patent system; pharmaceutical industry; biotechnology industry; legal standards; patentability; judicial review; Patent and Trademark Office

Chapter.  5689 words. 

Subjects: Intellectual Property Law

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