Diversifying without Discriminating: Complying with the Mandates of the TRIPS Agreement

Since the Patent Act was revised in 1952, patent law has expanded to cover an array of novel endeavors--new fields of technology (notably computer science and business methods) as well as the activities of researchers engaged in fundamental scientific discovery. These changes have been accompanied by shifts in the organizational structure of the technological community, with smaller firms and universities emerging as important players in the patent system, and by new marketplace expectations arising from consumer demand for interoperable technology and converging functionality. As a result of these developments, structural flaws in the legal order have become evident. Although the technological community was once fairly united in its needs, the recent debate over patent reform has made it clear that this is no longer the case. The broad patents available for basic science present different problems from those associated with the thickets of narrow rights awarded in fields where advances are incremental.[...] In the last few years, it has become increasingly difficult to believe that a one-size-fits-all approach to patent law can survive