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The Patent Crisis and How the Courts Can Solve It$
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Dan L. Burk and Mark A. Lemley

Print publication date: 2009

Print ISBN-13: 9780226080611

Published to Chicago Scholarship Online: March 2013

DOI: 10.7208/chicago/9780226080635.001.0001

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Levers at Work—the IT Industry

Levers at Work—the IT Industry

(p.156) 12 Levers at Work—the IT Industry
The Patent Crisis and How the Courts Can Solve It
University of Chicago Press

This chapter discusses how policy levers can and do apply in information technology (IT) industries. It concentrates on the software industry, though it also offers some more preliminary thoughts on similar problems in the semiconductor industry. Implementing a rational software policy obviously requires some significant changes to existing case law. A number of policy levers might be brought to bear on this problem. Patents in the semiconductor industry ought to be narrow. Application of the eBay policy lever is likely to find more hardship and less need for an injunction in semiconductor cases than in any other industry. Optimal patent policy depends on assessments of industry characteristics that will always be preliminary and subject to revision. Only courts have the institutional competence and doctrinal flexibility to adapt to those revised assessments and apply them to the industries that drive innovation not just today but in the future.

Keywords:   policy levers, information technology, software industry, semiconductor industry, eBay, patent policy

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