Defining the Proper Scope of Internet Patents: If We Don't Know Where We Want to go, We're Unlikely to get There

Part I of this Article addresses the appropriateness of protecting Internet innovations under the current patent regime. It concludes that the doctrinal, historical and policy arguments require different outcomes regarding computing (patentable subject matter) and competitive arts (at best a difficult fit) innovation. Part II argues that the new electronic economy has given rise to a particular kind of competitive arts "market failure" (interference with first-to-move lead-time incentives) which must be addressed. It concludes, however, that tinkering with the existing patent or copyright regimes is not only complex, but poses significant risks, and should be avoided.

Part III sketches the outlines of a proposed competitive arts regime, combining the qualification features of patent law with the more nuanced approach to rights and remedies of copyright law. Part IV concludes by outlining a number of interim measures necessary to mitigate the effects of protecting the competitive arts under traditional patent law while awaiting the arrival of the new regime.