Today Professor Mark Lemley spoke at the law school on the current state of patent law for the field of biotechnology. It was the first chance I've gotten to hear him speak since he arrived from Boalt Hall this year, and he is a pretty engaging and thought-provoking speaker.
Basically, his talk centered on the proposition that patent law is "technology specific" -- that despite the fact that a U.S. patent grant is a "one size fits all" solution, the rules of the patent game differ tremendously whether you are applying for a software patent or a biotechnology patent, because of the body of common law judicial decisions validating or invalidating patents in a given field. Lemley thinks that in general, this technology-specific approach is a decently responsive way to tailor the patent process to the ideal conditions each field needs to incentivize innovation, and to adapt to technology that often changes too quickly for legislation to be relevant. However, he also thinks that in the field of biotechnology, the rules laid down by the courts are not optimal, which has led to something he calls the “Biotech Uncertainty Principle.”
If you're interested, the ideas laid out in his talk can be found in several law review articles that he's co-written with Dan Burk. See: Is Patent Law Technology-Specific?, 17 Berkeley Technology Law Journal 1155 (2002); Policy Levers in Patent Law, 89 Virginia Law Review 1575 (2003); and Biotechnology's Uncertainty Principle, in 50 Advances in Genetics: Perspectives on Properties of the Human Genome Project 305 (2003).