Thursday, June 21, 2007

Criticism of Jaffe/Lerner's Innovation and Its Discontents

The work of Jaffe and Lerner is somewhat criticized in a law review article by Peter Menell formatted as a patent application (13 Mich. Telecomm. Tech. L. Rev. 487). At the beginning, one has the text: This Article is fashioned as a patent application to illustrate the patent system's shift away from subject matter limitations and highlight the need for a neutral, comprehensive framework for patent system reform. To the extent that the style of this Article creates any misimpression about its purpose, any ideas contained herein are dedicated to the public.

Within, Menell writes: Given their comprehensive discussion of the economics of patent policy, n23 it is remarkable that they so readily reject categorical reform
choices. Their position is based less on a careful analysis of the costs and benefits
of such policy options and more on a variety of cursory objections. Although
they include the expansion of patentable subject matter among the causes for
the overbroadening of patent protection, n24 they seem resigned to the view
that patent law must extend to "anything under the sun that is made by man."
n25 They confront this issue more directly [page 497] in their recommendations
chapter. Although recognizing that "the major problems" in the patent system are
perceived to be in the areas of "software, business methods, and certain aspects
of biotechnology such as genetic sequences," they assert without further
explanation that these problems are merely transitional n26 and "manifestations
of the broader problems of the system as a whole." n27 They worry that
technology-specific reforms would open up the patent system to a
Pandora's box of special pleading. n28

Footnote 23 appears as:
n23. Id. at 25-77.

Within footnote 36, one notes that Menell does NOT note the authorship of the NAS report as involving STEP: Nat'l Research Council, Nat'l Acads. of Sci., A Patent
System for the 21st Century (Stephen A. Merrill, Richard C. Levin & Mark B. Myers
eds., 2004) [hereinafter "NAS Report"]. In fact, at footnote 39, Menell obscures the true nature of the involvement of economists in the NAS/STEP report: Given the composition of the Committee on Intellectual Property Rights in
the Knowledge-Based Economy, which included several corporate and
patent professionals, it is not surprising that the group declined to question
the dogma that patents should be available for "anything under the sun made
by man."

The type of criticism of Jaffe and Lerner by Menell is akin to saying Genghis Khan was a bad person because he had dirty fingernails.

In passing, at a talk at Temple University, Menell repeated the urban legend about the inventors of the transistor.

**In passing, of Mark B. Myers:

Myers appeared before the Berman sub-committee in Feb. 2007.

Statement of Mark B. Myers Sr. Vice President, Corporate Research and Technology
Xerox Corporation Committee on House Judiciary Subcommittee on Courts,
the Internet, and Intellectual Property February 15, 2007 Good afternoon,
Chairman Berman and members of the subcommittee. I am the former senior
vice president for research and technology of the Xerox Corporation. Together
with Richard Levin, President of Yale University, I chaired the Committee
on Intellectual Property Rights in the Knowledge-Based Economy of the National
Academies, comprised of the National Academy of Sciences, National Academy
of Engineering, and the Institute of Medicine,

[Jaffe also appeared before Berman.]


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