Here are some examples:

The proposal set out below44 introduces a codified liability rule that would impose a built-in compulsory license favoring subpatentable innovators. Unlike patents or other exclusive rights regimes, however, this proposal does not give rise to the blocking effects of a regime of exclusive rights, nor does it discriminate against fields of technology, as is the case with most sui generis regimes.45 So far, intellectual property policy has proved to be a poor fit for certain types of socially valuable innovations that depend on market-based results, thereby often yielding chronically inadequate incentives at the outset. This occurs when would-be investors in innovative and socially valuable products cannot or do not anticipate recouping their front-end costs owing to the risk of unbridled free competition,46 which may obviate any suitable reward for their initially risky investments.47 One recent example in the public [footnote omitted] spotlight was the “structure, sequence and organization” of computer programs,48 which in most non-patentable cases may no longer qualify as copyrightable subject matter in the aftermath of the recent Supreme Court decision in Google v. Oracle. 49 In other subject matter areas, even when an intellectual property right becomes theoretically available, incremental innovation in certain socially valuable goods may remain subject to a risk of underfunding and underproduction through current market conditions. A noteworthy example of this latter situation arises in research and development (“R&D”) on certain chronically underfunded diseases (e.g., neglected tropical diseases50 and rare [footnote omitted] diseases51), where market limitations inherently restrict the incentives flowing even from an exclusive right.52

In still other cases, there are subpatentable (or non-copyrightable) goods “bearing know-how on their faces”53 that are so easily copied that investors cannot even rely on traditional lead time advantages to recover their costs or enable profits.54 The classic example is that of sui [footnote omitted] generis design protection laws.55 These laws traditionally give industrial designers an exclusive right that confers relatively short-term protection, with a pathway to trademark protection, which in turn can potentially last forever.56 Design protection requires a certain amount of creativity and innovative capacity that most people lack while recognizing that, once designs enter the market, they are easily duplicated because each design typically bears the designer’s know-how on its face.57 This factor can even drive the initial innovator out of the market when competitors have greater market power. Hence, in order to stimulate sufficient investment in innovative designs, diverse laws in different countries give designers a period of lead time on the market, which can last as little as three years (as is the case under European [footnotes omitted] Union law for unregistered designs)58 or as long as at least ten years under the TRIPS Agreement.59