Mr. Burk illustrates that federal courts have diverged along industry-specific paths when deciding patent cases. Burk highlights courts' disparate treatment of the biotechnology and computer software industries within the uniform patent statute. Due to industries' differing requirements for innovation and development, Professor Burk argues that the currently general patent statute and its incentive to innovate may be improved by tailoring it to specific industries. Burk creates a dialogue on what kinds of statutory schemes promote innovation. Citing the Supreme Court's statement in Diamond v. Chakrabarty that the patent statute is meant to cover anything under the sun made by man, Burk explains that courts are responsible for applying the patent statute to all new kinds of technology that Congress could not have fully anticipated when it passed the statute. Burk compares the U.S. approach to that of Canada, where certain new technologies will not be covered by its patent statute unless Parliament affirmatively legislates the matters. Essentially, Burk asks, what statutory scheme best promotes innovation? The author agrees with Chakrabarty in that the judiciary is the best place for this industry-specific tailoring to take place. Courts already use different policy levers in patent law, such as the obviousness and disclosure standards, to tailor to each industry. Professor Burk suggests that courts make more calculated uses of these tools to better promote innovation.
Dan L. Burk,
Tailoring Patent Policy to Specific Industries,
7 Marq. Intellectual Property L. Rev. 1
Available at: http://scholarship.law.marquette.edu/iplr/vol7/iss1/1