Why do we have more than one form of intellectual property rights? Why are the structures of patent and copyright forms so different? What factors influence the optimal structure of each form? We can move toward addressing some of these enduring puzzles and understanding the effects of the differences between intellectual property forms by examining the presence and distribution of information costs in the propertarian relationship. In this article, I explore the relationship between the nature of protected intellectual goods and differences in the structures of patent and copyright. Intellectual property rules in patent and copyright can make it easier or more difficult for parties to gather and comprehend information regarding protected goods. The literature on the law of organizations has recognized that it is most efficient to align transactions, which differ in their attributes, with organizational forms, which differ in structural ways, so as to minimize transaction costs. I argue that similarly, when intellectual property forms are structured to minimize information costs they are more efficient, all else equal, than when they are not so structured. Examining the presence and distribution of information costs can suggest ways in which we might increase efficiency in intellectual property.
Issue 2
Racial Equality: Progressives’ Passion for the Unattainable
In the 2008 presidential race, the debate as to the role of race in past and present American life would benefit enormously had all the citizenry read The Lost Promise of Civil Rights, Professor Risa L. Goluboff’s extensively researched and impressively presented history of racial discrimination and the only partially successful efforts to combat it by a small group of government and private lawyers and those who supported them. In my review, I express doubt with her thesis that more progress might have been possible had civil rights advocates devoted more of their limited resources to litigation challenging employment discrimination. Refuting her position, though, enhanced my understanding of why in the abstract we Americans have more that unites than divides us. For that truth is, even today, too easily diluted by fears, suspicions, and deep-seated beliefs about the legitimacy of dominance by whites over people of color.
The Low Written Description Bar for Software
This Note focuses on the application of 35 U.S.C. � 112�s �written description� disclosure requirement to software. After tracing the contours of the modern written description requirement, it addresses the seemingly-inconsistent treatment of software and biotechnology inventions under � 112. The Note argues that while functional written descriptions are generally held to be insufficient for biotechnology or DNA inventions (�Gene X does Y� does not pass muster), courts will allow inventions involving software to be claimed via functional descriptions (�Program X does Y� is sufficient)�a much lower descriptive bar. The note concludes that the relative predictability of software development as well as the inherently functional nature of software description account for this differing treatment, and that biotechnology inventions will require less burdensome disclosure as the predictability of that field increases.