WASHINGTON, D.C. -- The Manufacturing Institute has seven words for the rising number of academic and legal critics assailing the nation's intellectual property (IP) system: It ain't broke, so don't fix it. "The current uneasiness about IP makes it necessary to address head on the common objections lodged against the current law," Richard Epstein writes in Intellectual Property for the Technological Age, a report released today as part of the Institute's Manufacturing Innovation series. The Manufacturing Institute is the research and education arm of the National Association of Manufacturers. "The most prominent theme, which appears in multiple guises, is that today's IP law frustrates the very innovation that it's supposed to achieve," writes Epstein, a professor at the University of Chicago School of Law. "Every system of property rights necessarily creates some winners and some losers. Does the IP law supply excessive protection to inventions, writings and the trade secrets intended to promote technological innovation? Some of these objections hit the mark," Epstein conceded in a press conference here today. Nonetheless, Epstein's basic message was crystal clear: "Any modifications of basic law should take the form of incremental adjustments to the current framework," he declared. Over the course of 216 years, that framework has experienced the good, the bad, and the ugly. But rarely have so many been so disenchanted. Today's report may do little to quell their frustration. Michael Ryan, director of the George Washington University Law School's Creative and Innovative Economy Center, attributes the rising level of criticism to academic and legal scholars who contend that the patent system is unwieldy, cumbersome, and grants too many lousy patents.

(For more background, see The IP Wars; The_Verdict_on_IP_Protection; and Cognex Takes Preemptive Strike at Patent Infringement Claim.)

"Logically, I shouldn't have to say what I'm about to say," Ryan said. "This [protecting our IP system] ought not be seen as a partisan issue." But in Washington, logic doesn't always apply, he continued. "The dangers are that the academic debate is penetrating Congress and that the policy makers will be swayed by these critiques," Ryan warned. Small manufacturers should be vigorously defending the status quo because they would have the most to lose if the patent system were revamped, he added. Enforcement and licensing procedures protect these companies from potential abuse by larger companies, which means that smaller companies likely have a bigger stake in maintaining those IP laws on the books, Ryan noted. According to the report, those wanting change object to the IP system on the following grounds:

• More IP rights should be placed in the public domain
• Patents confer unjustified monopoly rights on their holders
• The antitrust law does not sufficiently supervise the creation of monopolies in intellectual property
• The current system of patent and copyright law creates a serious anticommons problem that works to block innovation

While acknowledging in today's press conference that some critics have valid concerns about the current IP terrain, Epstein's report rebuts what he defines as some of the most common complaints concerning "the internal operation of IP law." He concludes that as a matter of overall doctrinal design, the IP rules do as good a job as could be expected in protecting property rights without stifling competition. "We can reject with comfort the frontal assaults on the overall system," he writes. The practical side of the story is not so rosy. Epstein recommends hiring additional staff at the Patent and Trademark Office to speed the process and improve the quality of patent examinations, while taking strong administrative steps to stop the systematic piracy of IP. "The perceptual bias is always to look at the failures," Epstein said. "But we wanted to look at the successes. And once we get the patent system completely right, we won't have to have meetings like this anymore."