267. For competing views on UCITA (most of them negative), see "Symposium: Intel-
lectual Property and Contract Law in the Information Age: The Impact of Article 2B of
the Uniform Commercial Code on the Future of Transactions in Information and Elec-
tronic Commerce," _Berkeley_Technology_Law_Review_ 13 (1998): 809.

[14-23] L. Ray Patterson, "Understanding the Copyright Clause," _Journal_of_the_Copyright_
_Society_U.S.A._ 47 (2000): 365; L. Ray Patterson and Stanley W. Lindberg, _The_Nature_
_of_Copyright:_A_Law_of_Users'_Rights_ (Athens, Ga.: University of Georgia Press, 1991);
L. Ray Patterson and Judge Stanley F. Birch, Jr., "Copyright and Free Speech Rights,"
_Journal_of_Intellectual_Property_Law_ 4 (1996): 1; L. Ray Patterson, "Copyright and 'The
Exclusive Right' of Authors," _Journal_of_Intellectual_Property_Law_ 1 (1993): 1, 137; L. Ray
Patterson, "Free Speech, Copyright, and Fair Use," _Vanderbilt_Law_Review_ 40 (1987): 1.

[14-24] Litman, 12-14.

[14-25] The law does not ordinarily have an interest in forcing an owner of a property right
to "use it or lose it." For example, I should not have to drive my car all the time to ensure
no one else gets to take it. But where property is not exhaustible, and is nonrivalrous,
then the balance in favor of the "use it or lose it" rule can shift. Litman's rule is related
to a French requirement that if a publisher fails to exploit an assigned right, then, under
certain circumstances, the original author can reclaim the right. See Neil Netanel,
"Copyright Alienability Restrictions and the Enhancement of Author Autonomy: A Nor-
mative Evaluation," _Rutgers_Law_Journal_ 24 (1993): 347, 390-391.

[14-26] On the role of damage remedies in patent infringement cases, see Mark Schanker-
man and Suzanne Scotchmer, "Damages and Injunctions in Protecting Intellectual
Property," _Rand_Journal_of_Economics_ 32 (2001): 199 (in the context of research tools,
damages underdeter infringement, but that nondeterrence may be a good thing for the
patent holder, since it prevents a hold-up problem). Carl Shapiro, "Navigating the
Patent Thicket: Cross Licenses, Patent Pools, and Standard-Setting," in _Innovation_
_Policy_and_the_Economy,_ vol. 1, Adam Jaffe, Joshua Lerner, and Scott Stern, eds. (Cam-
bridge, Mass.: MIT Press, 2001), 8.

[14-27] Professor John Barton, for example, has proposed that Congress (1) raise the stan-
dards for patentability (such that an invention is nonobvious only "when the approach
seemed quite unlikely to work and still proved successful"); (2) decrease the use of
patents to bar research; and (3) improve the U.S. Patent Office to reduce invalid patents.
John H. Barton, "Reforming the Patent System," _Science_ 287 (2001): 1933.

[14-28] See Brian Kahin, comments in response to "The Patentability of Computer-
Implemented Inventions," 2000, 5 (noting that patent attorneys discourage software pro-
fessionals from reading patents to avoid "willful infringement"), available at http://
europa.eu.int/comm/internal_market/en/intprop/indprop/maryland.pdf.

[14-29] See, e.g., Daniel R. Harris and Janice N. Chan, "Case Note: _Wang_Laboratories,_
_Inc._ v. _America_Online,_Inc._and_Netscape_Communications_Corp.,_" _Computer_&_High_
_Technology_Law_Journal_ 16 (2000): 449, 457.

[14-30] See, for example, Robert P. Merges, "As Many as Six Impossible Patents Before
Breakfast: Property Rights for Business Concepts and Patent System Reform," _Berkeley_
_Technology_Law_Journal_ 14 (1999): 577 (poor-quality patents, especially business patents,
reveal need for PTO reform; PTO jobs and incentives should be restructured; third par-
ties, especially the applicant's competitors, should be consulted early and thoroughly
through a European-style opposition system).

[14-31] See A Bill to Amend Title 35, U.S. Code, to Provide for Improvements in the
Quality of Patents on Certain Inventions, H.R. 107th Cong., 1st Sess., 1932, #4 (nonob-

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