Bayh-Dole and IP Pluralism

A concise overview of Bayh-Dole and other aspects of US university research commercialisation is provided in 'University Research and Licensing' by Jennifer Carter-Johnson, Jeffrey S. Carter-Johnson and Jorge L. Contreras in Bioinformatics Law: Legal Issues for Computational Biology in the Post-Genome Era ed by Jorge L. Contreras & A. James Cuticchia.

The authors indicate that

 This chapter in an overview of the law of bioinformatics covers the legal issues uniquely facing universities and other research institutions. Among the topics covered are modes of university technology development, the Bayh-Dole Act, the questionable status of the patent research exemption in the U.S., publication and data release, and socially-responsible licensing.

There's a more searching - and for UC intellectual property Honours students more useful - discussion of intellectual property in the 178 page 'Intellectual Property Rights and Institutions: A Pluralist Account' by Michael E. Kenneally

Kenneally comments that

Debates over intellectual property’s justifications tend to treat natural rights and utilitarian accounts as competitors, but they should be seen as complements instead. Lockean and Kantian theories of intellectual property highlight the strong interests that intellectual property creators have in profiting from and exercising some degree of control over their work, but neither theory gives sufficient justification for the full assortment of rights that intellectual property owners have under current law. Utilitarianism’s focus on society’s interests in the production of useful information and creative expression provides an essential supplement to these natural rights theories, but without establishing that intellectual property law should single-mindedly strive only to maximize social welfare. Developing both natural rights-based and utilitarian justifications, this dissertation advances a pluralist account of intellectual property that understands different features of copyright, patent, and trademark law to be serving different normative interests. 

His conclusion states that

It is tempting to look for a possible justification for intellectual property through either the lens of natural rights or the lens of utilitarianism. Either way of focusing on the subject proposes to make it intelligible to us in terms of a single purpose, although of course they each offer competing portraits of that purpose. In the former case, intellectual property is preoccupied with securing what properly belongs to individuals and, in the latter case, with promoting the good of society as a whole. Because of their disagreement of intellectual property’s fundamental purpose, these two accounts are regarded as diametrically opposed. But having scrutinized natural rights and utilitarian accounts of intellectual property in the preceding chapters, I have come to reject the either/or mindset that they pressure us to adopt. Instead of assuming that intellectual property is justified either as a matter of natural rights or on utilitarian grounds, we should consider a pluralist account of intellectual property’s justifications that incorporates what is most appealing in both the natural rights and utilitarian accounts. Intellectual property pluralism avoids the limitations of the natural right and utilitarian perspectives and allows for a richer understanding of the relationship between intellectual property rights and our intellectual property institutions. Natural rights–type justifications of intellectual property ownership do well in highlighting the interests of those individuals who create intellectual goods, but they run the risk of overemphasizing those interests or of underestimating the interests of those whom intellectual property laws place under duties. In particular, natural rights accounts of intellectual property can proceed too quickly from a justification of physical property ownership to a justification of intellectual property ownership, disregarding the differences in the ways that intellectual property and physical property laws affect the relevant normative interests given the differences in the nature of intellectual and physical goods. In Chapter 2, I stressed how Lockean approaches to intellectual property rights are especially susceptible to this danger. A physical property owner’s interests in material gain are greatly imperiled by others’ unauthorized use of her physical property, since such unauthorized use routinely interferes with the owner’s own use of her property. But in focal cases of intellectual property, especially works of creative expression and inventions, others’ unauthorized use of the property generally does not interfere with the owner’s own use of her property. On the other hand, unauthorized use of trademarked symbols that confuses consumers does interfere with the trademark owner’s ability to use the symbol to communicate with the consuming public. And so our discussion of Lockean arguments for intellectual property rights indicated that different intellectual property law doctrines may have different justifications. Locke’s arguments against interference work pretty well in justifying central trademark doctrines but not those of copyright or patent law. The pluralist account of intellectual property that I am defending forsakes a unified theory of intellectual property not only by relying on a plurality of normative considerations, but also by advancing different justifications for different areas of intellectual property law. 

Chapter 3 considered possible Kantian natural rights–type justifications for intellectual property ownership. This discussion went beyond the preceding chapter on Locke’s labor theory by identifying another type of interest of intellectual property owners that is not reducible to Lockean interests in material gain. These other interests are interests in controlling one’s own actions and, relatedly, in having a public reputation that accurately reflects the actions one has chosen to do. I argued against a recent interpretation of Kant’s account of physical property ownership, according to which any unauthorized use of another’s property wrongfully limits that person’s freedom by conscripting her into the pursuit of ends that she has not chosen for herself. But, drawing on Kant’s own writing about copyright, I argued that there are particular ways of using intellectual property that unjustifiably violate the intellectual property creator’s interest in having control over her actions and/or reputation. In particular, falsely claiming credit for someone else’s work or describing someone else as responsible for choices that she did not in fact make would disregard this sort of interest without promoting the legitimate interests of others. Here, too, however, the arguments really only support core doctrines within trademark law—especially rules against passing off counterfeit goods as the real thing, or some instances of so-called “reverse passing off,” in which a person attempts to sell another’s goods as though they were her own. Although copyright law prohibits some examples of plagiarism, in most situations it does so under very general directives not to reproduce or distribute others’ work that do not explicitly refer to copyright owners’ interests in receiving attribution. Originally, however, copyright ownership included a right to decide when to release a new work for the first time, and this right to release can be understood as furthering Kantian interests in having control over one’s actions. 

But the core of patent and copyright law—the parts that prohibit unauthorized copying and distribution of patented inventions and copyrighted works—are justified not by the natural rights arguments that Locke and Kant supply, but by more functionalist lines of thought. Innovators, artists and others who invest in creative endeavors would be reluctant to devote their resources to developing inventions and expressive works in the absence of special encouragement, because it is too easy for others to copy such goods without compensating the people who invested in their development. On this proposal, the crux of copyright and patent law is ultimately justified by the widely shared interests of the members of a society in the availability of new inventions and creative works, not by the interests of inventors or artists themselves. The fact that copyright and patent rights supply socially beneficial incentives has often been considered the heart of the utilitarian argument for intellectual property. I argued in Chapter 4, however, that we should resist the utilitarian label because utilitarianism characteristically directs us to formulate all normative questions in terms of the expected effects on overall amounts of well-being. If social welfare provides the only proper measure of intellectual property’s justifications, policymakers’ appeal to overtly nonutilitarian considerations will always seem like an aberration or even an inappropriate distraction. This is an unwelcome consequence, in my view, because the effects of intellectual property laws on social welfare are somewhat indeterminate and because other sorts of normative considerations are important enough in their own right even if, on balance, furthering them does not prove to maximize social welfare. Consider, for example, the Kantian argument for attribution rights. In light of an author’s interest in controlling her actions and in having a reputation that accurately reflects what she has chosen to do, intellectual property law is justified, according to the Kantian argument, in prohibiting others from falsely claiming credit for her work. It is conceivable, however, that this attribution right would present significant administrative and enforcement costs, and it is also conceivable that very few people would be seriously unhappy to see it go. Likewise, it is conceivable—though I admit, not terribly likely—that social welfare would be increased if the law expressly empowered authors to sell their exclusive right to claim credit to the highest bidder. Even if it turned out that money would be saved or more books would be produced if the right to attribution were not legally recognized or were made transferable, I am not sure it follows that we ought to give up on recognizing a nontransferable version of it in our law. At the very least, it seems to me that we ought not to commit ourselves to designing our right to attribution in whatever way maximizes overall amounts of well-being solely because we think copyright law is primarily justified because of the socially beneficial incentives it provides. 

My endorsement of the functionalist argument and rejection of Lockean and Kantian arguments for copyright and patent rights suggests a noteworthy difference between justifying intellectual property ownership as a matter of natural rights and justifying it as a matter of social convention: the two types of justification do not seem to face the same argumentative burden. Establishing that there are natural rights of intellectual property requires showing that a person or group’s failure to respect the alleged right would warrant disapprobation, unless some sort of special excuse applied. Because failing to respect the particular right in question is presumptively a moral mistake, there must therefore be a decisive reason for respecting it. But for a social institution to have an adequate social convention–type justification, it suffices to establish that the institution serves the common good in an unobjectionable way. The reasons for establishing the particular institution need not be decisive. And yet, as I argued in Chapter 4, once a social institution is justified, even as a matter of social convention, it can have the power to generate new moral rights, respect for which is not completely optional. Our pre-legal or natural rights give shape to our legal institutions, but our legal institutions also give shape to our moral rights. The interplay between intellectual property rights and intellectual property institutions is thus highly complex and, without careful attention to the relevant normative considerations, even a bit mysterious. A pluralist account of intellectual property’s justifications does not eliminate the complexity, but hopefully it unravels some of the mystery.

The Other Offshoring

'Implications for Offshore Processing in Australia: The Case of Plaintiff M70/2011' by Stephanie Constand in (2013) 3 Migration Australia Journal 43-51 comments that

In August 2012, the Migration Legislation Amendment (Regional Processing and Other Measures) Act 2012 (Cth) (‘Migration Amendment Act 2012’) was passed by Parliament to enable the regional processing of the protection claims of offshore entry persons. A significant catalyst for these amendments was the High Court’s decision in Plaintiff M70/2011 v Minister for Immigration and Citizenship, which removed the legal basis for the Malaysian Solution, the government’s former offshore processing arrangement that would have facilitated the transfer of irregular maritime arrivals to Malaysia for the determination of their claims. 

This article analyses the implications of the Migration Amendment Act 2012 for offshore processing and considers possible challenges to this legislation. It also examines the decision of the High Court in Plaintiff M70 to explore why the amendments were considered necessary in order to enable the government to pursue its revised offshore processing regime.

Constand notes that

Although the Migration Act 1958 (Cth) may now provide a legal framework for the implementation of the government’s revised offshore processing scheme, the feasibility of this regime from a practical as well as human rights perspective is questionable. It is estimated that, when fully operational, Nauru will have a capacity of 1500 people, with the combined capacity of the processing centres in both Nauru and Manus Island (PNG) most likely totalling 2100. However, at the time of writing, the number of irregular maritime arrivals that have sought asylum since mid-August 2012 and are currently awaiting transfer to a regional processing centre has already exceeded 4000, a figure that eclipses the combined capacity of Nauru and Manus Island’s asylum seeker processing facilities. This will inevitably lead to overcrowding and significant deterioration in living conditions, a decline in the quality of legal processes and a lack of adequate education and welfare support services. Currently, for example, only two counsellors are provided for in Nauru under the government’s contract with International Health and Medical Services, which is severely inadequate in light of the processing centre’s peak capacity of 1500 people. The United Nations High Commissioner for Refugees has criticised these temporary arrangements as failing to meet international standards for refugee protection. 

The Australian Government, at the time of writing, is also in negotiations with Nauru to amend its legislation to enable a Nauruan Refugee Status Review Tribunal and the Nauruan Supreme Court to hear challenges to refugee status determinations. This would mean that both refugee processing as well as appeals procedures would occur within Nauru. Under the current arrangements, although unsuccessful challenges within the Nauruan legal system may be taken to the High Court of Australia, any claims would still be assessed according to Nauruan, rather than Australian law. These arrangements raise significant concerns due to the continued lack of adequate legal resources and expertise in Nauru to process appeal claims on the scale and complexity that is demanded by the Nauruan offshore processing agreement. It appears that these measures may have been implemented in further pursuit of the Australian government’s policy of actively deterring irregular maritime arrivals through the comprehensive extraterritorialisation of processing arrangements. Although an analysis of the implications of this newly introduced review process is beyond the scope of this article, it can almost certainly be expected that once further details regarding this new system of review are established, it will be subject to significant critical debate and further scrutiny.

Opt-out

'Digital Market Manipulation' (University of Washington School of Law Research Paper No. 2013-27) by M. Ryan Calo comments that

 Jon Hanson and Douglas Kysar coined the term “market manipulation” in 1999 to describe how companies exploit the cognitive limitations of consumers. Everything costs $9.99 because consumers see the price as closer to $9 than $10. Although widely cited by academics, the concept of market manipulation has had only a modest impact on consumer protection law. 

This Article demonstrates that the concept of market manipulation is descriptively and theoretically incomplete, and updates the framework for the realities of a marketplace that is mediated by technology. Today’s firms fastidiously study consumers and, increasingly, personalize every aspect of their experience. They can also reach consumers anytime and anywhere, rather than waiting for the consumer to approach the marketplace. These and related trends mean that firms can not only take advantage of a general understanding of cognitive limitations, but can uncover and even trigger consumer frailty at an individual level. 

A new theory of digital market manipulation reveals the limits of consumer protection law and exposes concrete economic and privacy harms that regulators will be hard-pressed to ignore. This Article thus both meaningfully advances the behavioral law and economics literature and harnesses that literature to explore and address an impending sea change in the way firms use data to persuade.

Propertisation and Privacy

‘Who Owns Our Data?’, a seven page paper by Christopher Rees, argues that "the layman’s answer" lies in the question itself.

The common understanding of people when they talk about information about themselves is that it is indeed “theirs”. Until relatively recently, the law has been content to remain agnostic on the subject. The Common Law in general and English Courts in particular have traditionally avoided philosophical debates about the nature of things, preferring to develop concepts and principles from the results of cases decided on specific facts and circumstances. This approach has been acceptable while we have been winding our way gently up the foothills of the Information Age, but now that we see the towering peak of Big Data standing before us, covered by the ubiquitous Cloud, it is necessary to make a critical examination of some of the basic assumptions which we have hitherto carried with us about the way in which the law should treat rights over personal information. This paper will argue that the correct approach which the law should adopt is a proprietary one. That is to say that the protection of the economic value inherent in personal information should be grounded in property rights acknowledged by the law. 

Rees argues that

The contention of this paper is that, sooner or later, and possibly much sooner than might be thought likely, a judge ... will take the opportunity to lay down some ground rules for what might be loosely termed this new Law of Information. In the same way that Lord Atkin did, with such clarity and resonance in the landmark case for the law of negligence in Donoghue v Stevenson [1932] AC 563 it will then be seen that what has been creeping up, almost unnoticed, through the undergrowth has emerged into the bright and ever accommodating light of the Common Law is a fully articulated brand new branch of Property, called Personal Information. 

If the property model for Personal Information were to be adopted then far from becoming redundant, data protection laws will assume even greater relevance than hitherto. The reason for this is that search engines, data aggregators and social media sites who up to now have assumed that they own the data which they are harvesting will recognise that they have a vested interest in making sure that they following best practice in the way in which they acquire and use the information about individuals. What it will mean is that those data protection laws will not need to be so detailed and bureaucratic in their approach. Nor will one have vainly to try to rationalise the competing regimes for data protection which have grown up in the U.S, Europe and Asia. Property is a concept that all legal regimes recognise, so relying on the property right inherent in personal information will solve many of the current drafting problems for the legislators in this field. 

The property right approach will also save both industry and individuals money and energy. There will be no need for long winded privacy policies; there will just be a shared understanding of the trust based nature of the relationship between the in rem rightholder and the in personam collector of information. In this way, there will be created a healthier balance of risk and obligation as between owners of personal information and those whom they allow to process it on their behalf. The ownership paradigm will encourage the use of privacy enhancing technologies and state of the art security measures to protect data. Those who hold vast quantities of personal information will realise the risks inherent in losing the property of vast numbers of third parties and the risk of consequent class actions for damages for having done so. This will not eradicate the occurrence of security breaches, but it will encourage the use of better processes and systems for the protection of personal information, which was one of the fundamental aims of data protection law in the first place. And, the law of Information will have taken a significant step forward towards the sunlit uplands that await us in this ever fascinating Information Age.

Website Privacy Statements

The Office of the Australian Information Commissioner (OAIC) has announced "the results of a ‘privacy sweep’ of the websites most used by Australians".

As you might expect, both the results and the OAIC response are rather lame.

The OAIC states that

Almost 50 website privacy policies were assessed for accessibility, readability and content. The websites were also assessed against new transparency requirements in the Privacy Act that will come into effect on 12 March 2014. 

Australian Privacy Commissioner, Timothy Pilgrim, said the results of the sweep were mixed with 83% of the sites having one or more issues in the following areas: 'easy to find', 'easy to read', 'contacts for further information', relevance and length. 

'It is a concern that nearly 50% of website privacy policies were difficult to read. On average, policies were over 2,600 words long. In my view, this is just too long for people to read through. Many policies were also complex, making it difficult for most people to understand what they are signing up to,' Mr Pilgrim said. 

'We did see some instances where organisations provided both a simplified and full policy to assist their customers to understand what will happen to their personal information. This attempt to use 'layered' privacy policies is encouraging.' 

The statement notes that

Over 65% of the [47] privacy polices provided information that was not relevant to the handling of personal information, and was potentially confusing. One website did not have a privacy policy.

There's no indication of whether the Commissioner has responded with carrot, stick or a simple urgent 'please explain' to the operators of that site.

The Commissioner's own site - recently but very belatedly updated - has attracted strong criticism for low usability, with documents being hard to find (in some instances disappearing altogether), confusingly-described and not provided on a timely basis. It is thus encouraging to see that the Commissioner

also reminded organisations that, in addition to readability and length, it was important to consider accessibility issues. 

'Privacy policies need to be accessible by all users. This means that policies should be in formats that can be read by people using assistive technologies like a screen reader,' Mr Pilgrim said. 

The OAIC backgrounder indicates that

• 15% had a privacy policy that was hard to find on the website 
• 9% of sites reviewed either listed no privacy contact or it was difficult to find contact information for a privacy officer 
• Almost 50% of policies raised 'readability' issues, ie they were considered to be too long and difficult to read 
• The average reading age of the policies was 16. None of the full privacy policies met the OAIC's preferred reading age level of 14. The OAIC used the Flesch-Kinkaid Reading Ease test 
• More than 65% of privacy policies raised concerns with respect to the relevance of the information provided. For example, some sites with .au domain names were unclear about whether the site complied with the Privacy Act 1988.

The statement comments that

'With only 8 months to go until new privacy laws commence, organisations should be looking at their privacy policies now to ensure they comply with the new requirements. Organisations need to focus on these requirements and be open and transparent about their privacy practices. This will give people a better understanding of how their personal information will be handled so that they can make an informed decision about doing business with the organisation.' 

To comply with new Australian Privacy Principle 1, organisations must have a clearly expressed and up to date privacy policy.

That compliance is, of course, in the eye of the Commissioner - with the PC/OAIC historically tending to be quite permissive. The statement indicates that the OAIC will use the findings "to inform the development of guidance about privacy policies for organisations in the lead up to March 2014".

In a forthcoming article I suggest that we need to be more positive and do more. We could for example mandate accessibility, along the lines of the Australian Spam legislation and the US Financial Services Modernization Act (Gramm-Leach-Bliley Act).

Copyright CEOs

CEO Compensation in the Copyright-Intensive Industries [PDF], a 53 page report by Jonathan Band and Jonathan Gerafi at InfoJustice notes that -

In June 2013, we produced a study on the profitability of copyright-intensive industries. We compared the performance over the past ten years of five leading firms in three copyright-intensive industries -- motion pictures, publishing, and software -- with the performance of five leading firms in three other industries: construction, transportation, and mining. We found that the firms in the copyright-intensive industries were more profitable than the firms in the other industries in every period examined.

In this study, we compare the compensation of the chief executive officers of these same 30 firms over the past six years. We found that in each year, the CEOs of the firms in the copyright-intensive industries received significantly higher compensation than the CEOs of the firms in the other industries. For example, in 2012, copyright-intensive industry CEOs received $22.9 million in compensation on average, while the CEOs in the other industries received $7.4 million on average. In other words, the 2012 compensation of copyright-intensive industry CEOs was more than triple the compensation of CEOs in the other industries. During the entire six-year period, copyright-intensive industry CEO compensation on average was 2.8 times higher than CEO compensation in the other industries. Moreover, between 2007 and 2012, CEO compensation in the copyright-intensive firms grew by 45%, while it increased by only 8% in the other industries.

Additionally, CEO compensation as a percentage of revenue was more than twice as high in the copyright-intensive industries as in the other industries. CEO compensation as a percentage of revenue in the publishing industry was four times higher than in the transportation industry, almost three times higher than the non-copyright average, and twice as high as in the motion picture industry.

In the copyright policy debates, the labor unions representing workers in copyright-intensive firms have joined with management in demanding greater intellectual property protection. Indeed, copyright policy is one of the few areas where the AFL-CIO and the U.S. Chamber of Commerce routinely agree with one another. They contend that copyright infringement is causing job loss in the United States. Nonetheless, during this period when the copyright-intensive industries purportedly are losing jobs because of attacks by pirates, CEO compensation has increased dramatically, both in absolute terms and relative to CEO compensation in other industries. These generous compensation packages belie the suggestion that the copyright industries confront an existential threat from infringement. Moreover, these upwardly trending compensation levels demonstrate that the copyright-intensive industry CEOs are not sharing the pain infringement allegedly causes their employees.

Genre

'Patents as Genre: A Prospectus' by Dan L. Burk and Jessica Reyman in 25 Law & Literature (Forthcoming) argues that

 Like other forms of intellectual property, patents have increasingly been the subject of controversy regarding their successes and failures in promoting and channeling innovation. But unlike other forms of intellectual property, patents are constituted and defined in terms of officially sanctioned texts. As a consequence, patents are deeply embedded in communities of composition, interpretation, and practice. In this paper we outline how genre analysis can be applied to interrogate the "typified rhetorical action" of the patent system and its constituent communities. We argue and demonstrate that understanding the rhetorical work of patents is key to addressing current criticisms of the patent system.

They comment that

What might the rhetorical features of patent documents reveal about the workings of the patent system and the underlying ideologies of the patent community?7 One method for further exploring the role of rhetoric in the patent system is genre theory methodology. In this paper, we argue that the modern patent is a compelling subject for such genre analysis and that genre analysis points the way to a better understanding of the social role played by patents. We begin by sketching the general outline of the patent as a document, its distinctive characteristics, the unique community that drafts and processes the document, the agencies and institutions that have developed around the document, and the other features relevant to genre analysis. We discuss both linguistic characteristics of the patent document as well as its social character as the product of a community of patent practitioners. In doing so, we trace the connections between the production of patents and the development of the patent community, concluding that this interaction is key to understanding the unique role of patents. 

In doing so we are mindful of both the influence of the document on its associated communities, and the concomitant influence of the communities on the document. These communities of course overlap and intercalate to varying degrees. But here we focus on the community most responsible for the determining the structure and composition of the patent document, the community of patent practitioners registered to practice before the Patent Office. We expect that examining both the text and context of the patent genre will help shed light on the norms, ideologies, and values circulating among patent practitioners, as well as upon those embedded in the patent document itself. ... 

... the social action of patents is not so much about innovation as it is about communal understanding and rhetorical performance. This conclusion differs radically from the assumptions underlying current patent debates, which focus on the economics and technological acumen of firms that produce inventions. But the system we describe here is a system for producing certified texts, rather than a system for producing innovation, which may be a different undertaking altogether. 

Genres are the textual sites at which a discourse community’s work is accomplished. We have in this preliminary study begun to sketch the contours of the patent genre and its associated community, showing the interplay between document and discursive community, and the social action that flows from that interplay. In doing so, we hope to have laid the foundation for future exploration of a rich field of rhetorical activity that has compelling currency for social policy. Such further studies might include analysis of additional features of the document, examination of the written interaction between Patent Office and reviewing courts, consideration of the structure of other types of patents besides the basic utility patent we have described here, or detailed investigation the intricate genre ecologies of the file wrapper. 

Such topics are worthy of detailed study in their own right, but may also have broader implications. For example, we have mentioned the historical influence that the patent community has had on the development of the patent document and its standards for certification; this interaction is not merely a historical curiosity, but a contemporary reality. In addition to specialty groups within state bar associations, patent practitioners also have their own very active national professional organization, the American Intellectual Property Law Association, which has historically been dominated by patent lawyers. Through such organizations the community has been active in advocacy and lobbying activity, including vocal involvement in the recent package of statutory reforms constituting the America Invents Act. Thus the community of patent drafters has shaped the form of the patent document, not only directly through evolving compositional practice, but by formal lobbying and informal influence over the regulations and statutes governing the patent. Consequently, the evolution of a different text – the patent statute – becomes an important mediating node between the patent community and the shape of the patent document. Similarly, the shape and formation of institutions such as the Patent Office and the Federal Circuit, which certify and interpret patents, have been influenced by the practice community. 

In each of these contexts, the community reflected in and shaped by the patent genre displays distinguishing characteristics which may be better understood by considering patents as genre. As the importance of patents, and need for closer examination of patents rises, it is worth investigating the interplay of documents used to establish patents and the methods used for writing and reading them. While we have not attempted to outline any sort of reform or recommendations for the patent system, we do conclude that genre study heightens our understanding of the patent community’s norms, epistemology, and ideology; and such information tells us a good deal about the meaning of patents and the social role that we have assigned to them. Understanding these dimensions of patenting lays a critical foundation for discussions of patent practice and patent reform.