Vol ## THE PROBLEM OF UNIFORMITY COST and-economics literature, the problem of social cost in intellectual property law often is discussed at a very high level of abstraction. The literature surrounding the optimal length of a patent is a typical example Neoclassical economic models concerning an optimal patent term often hold that optimality is conditional, implicitly recognizing that efficiency might dictate varying terms from patent to patent. Other analysts make the point more explicitly. But these economists offer no suggestion for how variable patent terms might be implemented, and those who contemplate the matter find the administrative difficulties intractable These economists apparently have recognized and despaired over, the problem of uniformity cost in intellectual property law. This despair is premature. Economic analysis can help identify situations in which uniformity costs are particularly high, but it will require pragmatic legal analysis to identify ways in which the legal system can competentI redress the problem 1. The Problem Legal scholars only recently have begun to analyze the social costs or uniform rights as a general problem in intellectual property law Analyzing U.S. patent law, Professor Lunney has advanced a formal economic model of uniformity cost that assesses the trade-offs between strictly uniform rights, rights tailored to individual innovations, an certain intermediate options. At bottom he shows"[e]ven where an innovative product represents the most valuable use of available resources in Speeches by Lord Macaulay with his Minute on Indian Education 156, 162(G M Professor John Duffy argues that the mobility of capital makes analysis causal connection between rights and investment levels unstable. See John F Intellectual Property Isolationism And The Average Cost Thesis, 83 TEX. L. REV 1078-89(2005). But, Professor Lemley rightly responds that because intellectual property rights distort the market away from competitive equilibrium, entry will not necessarily compete away supracompetitive returns. See Lemley, What is Different, supra note Xx at 1102-03 i9 See infra notes XX and accompanying text( discussing economic literature on patent See infra notes XX and accompanying text(discussing recognition of uniformity cost in the literature) 2I See Lunney, Quiet Revolution, supra note XX, at 6(stating that uniformity costs rise as gap between optimal uniform level of protection and level needed for individual innovation increases) 2 See Lunney, Quiet Revolution,, supra note XX, SIVVol. ##] THE PROBLEM OF UNIFORMITY COST 8 and-economics literature, the problem of social cost in intellectual property law often is discussed at a very high level of abstraction. The literature surrounding the optimal length of a patent is a typical example. Neoclassical economic models concerning an optimal patent term often hold that optimality is conditional, implicitly recognizing that efficiency might dictate varying terms from patent to patent.19 Other analysts make the point more explicitly.20 But these economists offer no suggestion for how variable patent terms might be implemented, and those who contemplate the matter find the administrative difficulties intractable. These economists apparently have recognized and despaired over, the problem of uniformity cost in intellectual property law.21 This despair is premature. Economic analysis can help identify situations in which uniformity costs are particularly high, but it will require pragmatic legal analysis to identify ways in which the legal system can competently redress the problem. 1. The Problem Legal scholars only recently have begun to analyze the social costs of uniform rights as a general problem in intellectual property law. Analyzing U.S. patent law, Professor Lunney has advanced a formal economic model of uniformity cost that assesses the trade-offs between strictly uniform rights, rights tailored to individual innovations, and certain intermediate options.22 At bottom he shows “[e]ven where an innovative product represents the most valuable use of available resources in Speeches by Lord Macaulay with his Minute on Indian Education 156, 162 (G.M. Young ed., 1935). Professor John Duffy argues that the mobility of capital makes analysis of the causal connection between rights and investment levels unstable. See John F. Duffy, Intellectual Property Isolationism And The Average Cost Thesis, 83 TEX. L. REV. 1077, 1078-89 (2005). But, Professor Lemley rightly responds that because intellectual property rights distort the market away from competitive equilibrium, entry will not necessarily compete away supracompetitive returns. See Lemley, What is Different, supra note XX, at 1102-03. 19 See infra notes XX and accompanying text (discussing economic literature on patent length). 20 See infra notes XX and accompanying text (discussing recognition of uniformity cost in the literature). 21 See Lunney, Quiet Revolution,, supra note XX, at 6 (stating that uniformity costs rise as gap between optimal uniform level of protection and level needed for individual innovation increases). 22 See Lunney, Quiet Revolution,, supra note XX, § IV