Not the same as generic sui generis

The proposal set out below44 inttroduces 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 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 diseases51), where market limitations inherently restrict the incentives flowing even from an exclusive right.52.