May 2006 Vol. 104 No. 6 THE REVIEW

Jaffe & Lerner: Innovation and Its Discontents: How Our Broken Patent System Is Endangering Innovation and Progress, and What to Do about I

Rochelle Dreyfuss

Pathological Patenting:
The PTO as Cause or Cure

Innovation and Its Discontents: How Our Broken Patent System Is Endangering Innovation and Progress, and What To Do About It. By Adam B. Jaffe and Josh Lerner. Princeton and Oxford: Princeton University Press. 2004. Pp. ix, 236. $29.95.

The Patent Act was last revised in 1952. The hydrogen bomb was exploded that year, vividly demonstrating the power of the nucleus; in the ensuing postwar period, the Next Big Thing was clearly the molecule. Novel compounds were synthesized in the hopes of finding new medicines; solid-state devices exploited the special characteristics of germanium and other semiconductors; as investments in polymer chemistry soared, advice to the college graduate soon boiled down to “one word . . . just one word[:] . . . Plastics.”

Over the next half-century, things changed dramatically. “Better living through chemistry” has begun to sound dated (if not sinister). Genomics and computer science have come into their own. The molecule is still valued, but not so much for its reactivity as for its informational content. Even the business of knowledge production has evolved. Once the border between science and technology was clear; now it is a blur. There are scholars who patent fundamental research, and commercial firms that are run like academic departments. And while knowledge has always grown cumulatively, the relationship among inventions has become more complex as products have become interoperable, functionality has converged, and markets have globalized. With the character of inventiveness changing so drastically, the need to reexamine the patent system has become evident. In the last three years, the Federal Trade Commission, the National Academy of Sciences, and even the Patent and Trademark Office (“PTO”) have suggested that it is time for reform. As I write, Congress is contemplating significant revision of the system.

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