The counterplan solves – the Semiconductor Chip Protection Act four part test proves. This card also disproves PDCP.

To provide a working analogy, Part III steps back to the 1980s and reviews how the semiconductor industry was able to persuade Congress to create sui generis intellectual property protection for semiconductor chips. The Semiconductor Chip Protection Act of 1984 (SCPA) contained a reasonable range of exclusive rights and a host of limitations which allowed greater access to semiconductors for research and development. In Part III, I outline how early semiconductor chips were a “misfit” for both the patent and copyright bargains, yet needed alternative intellectual property protection to fill the progress gap.44

Next, I analyze the test promulgated by Congressman Robert Kastenmeier and attorney Michael Remington (“K-R test”) to substantiate why sui generis protection is the only viable mechanism to achieve the constitutional mandate of incentivizing innovation while promoting progress through increased access.45 The four-part K-R test requires Congress to evaluate the following: (1) whether the change (new legislation) fits within the current intellectual property framework without violating existing principles or concepts; (2) whether the new interest clearly defines the scope of property rights provided; (3) whether the benefits of propertization outweigh the costs; and (4) whether the new interest enriches the public domain. I conclude Part III by analyzing how successful the SCPA was in deterring piracy and contributing to the overall growth of the semiconductor industry.

After illustrating the positive impact that the SCPA has had on the semiconductor industry, Part IV applies the sui generis analysis to isolated bioproducts. I apply the four-part K-R test to substantiate that enacting sui generis legislation for isolated bioproducts meets the exceptional standards for Congress to deviate from patent law and provide sui generis protection for this upstream technology. In Part IV, I also detail the lessons learned from the SCPA. Applying these lessons, I then outline which exclusive rights and limitations a model isolated bioproduct statute should contain to provide the “wings,” or stimulus effect, of enhancing research and downstream development while enriching the public domain.

Since patent protection is a prerequisite for venture capitalists seeking to invest in genomics and regenerative medicine, I advocate adopting isolated bioproduct legislation that is more patent-like in scope than the SCPA. Yet, like the SCPA, the proposed Parapatent Act would provide a more limited term of exclusive rights. The legislation would also mirror the SCPA and include some type of limitation, such as a well-defined experimental use and/or compulsory licensing provision, which facilitates access to this technology for parallel upstream research and downstream product development.