Technological development has increasingly resulted from cooperative ventures formedbetween and among the private sector, universities, and government entities. (12) Several developments inthe modern research environment have contributed to this trend towards collaboration. One factoris the growth of the communications networks, including the Internet, which collectively have madecollaboration over long distances much easier. (13) The growing complexity of modern technology has ramifications upon the cost of conductingresearch, the specialization of researchers, and the ability to innovate. Cooperation may benefit firmsby allowing them to share risks and costs. High technology research is often expensive, and manyfirms have found limited associations with other entities more cost effective than hiring neededexpertise on a permanent basis. Coupled with reported declines in public financing, cost increaseshave also encouraged academic researchers to find new sources of financial support. (14) The extreme complexity of many modern technologies has also led to the growingspecialization of individual researchers. Because few persons are able to master numeroussophisticated and ever-advancing scientific fields, breakthroughs at the frontiers of scientificknowledge increasingly depend upon interdisciplinary research. (15) Trends for individualresearchers are also reflected within the institutions in which they operate. Even elite, multinationalenterprises may lack the expertise to perform cutting-edge research on their own. They may insteadturn to government laboratories, universities, or other entities in order to gain access to expertise andequipment not readily available elsewhere. (16) Congress has also endeavored to create an environment conducive to research associationsbetween and among public, private, and non-profit entities. Among the legislative initiatives in thisarea is the National Cooperative Research Act, (17) which aimed to encourage companies to undertake joint researchthrough clarifications of the antitrust laws. The Bayh-Dole Act allowed universities, nonprofitinstitutions, and small businesses to obtain title to patents on inventions resulting fromgovernment-funded research. (18) The Stevenson-Wydler Act contained provisions concerningassignment of title to inventions arising from collaborative work between federal laboratories andoutside cooperating parties where no direct federal funding is involved. (19) In addition, Congress hasprovided tax and other incentives to stimulate joint research projects. (20) Although supporters of collaborative research cite its numerous potential advantages, someobservers have voiced concerns over this trend. First, collaboration may effectively reduce thenumber of researchers working on a particular problem. In the manner of an anticompetitivecorporate merger, a joint venture may potentially slow the pace of industrial research. (21) Second, experience demonstrates that joint ventures may be employed to facilitate cartels andother collusive behavior. In particular, as a collaborative research and development project may callfor close, continuing cooperation between two firms, such an arrangement may ultimately decreasethe participants' willingness to act as vigorous rivals in the marketplace. (22) Third, joint ventures mayreduce competition by excluding or hampering outsiders from access to technology or otherresources that are essential to participate in a particular market. (23) Finally, some commentators have viewed government support for particular joint venturesas particularly problematic. Such support has been characterized as "picking winners and losers" inthe marketplace. (24) Others believe that the government has consistently been a poor judge of selecting projects to awardwith federal funding. (25) Despite these concerns, there can be little doubt that collaborative efforts form a significantcomponent of research and development projects in the United States. (26) Joint research sometimes leads to technological breakthroughs that in turn may be subjectto patent protection. This report next reviews both the innovation policies that shape patent lawdoctrines, as well as the practical workings of the patent system as applied to collaborative research. The patent system is intended to promote the production and dissemination of technologicalinformation. Many commentators have argued that the patent system is necessary to encourageindividuals to engage in inventive activity. (27) Proponents of this view reason that, absent a patent system,inventions could easily be duplicated by free riders, who would have incurred no cost to develop andperfect the technology involved, and who could thus undersell the original inventor. The resultinginability of inventors to capitalize on their inventions would lead to an environment where too fewinventions are made. By providing individuals with exclusive rights in their inventions for a limitedtime, the patent system allows inventors to realize the profits from their inventions. The courts have also suggested that absent a patent law, individuals would favor maintainingtheir inventions as trade secrets so that competitors could not exploit them. (28) Trade secrets do not enrichthe collective knowledge of society, however, nor do they discourage others from engaging induplicative research. The patent system attempts to avoid these inefficiencies by requiring inventorsto consent to the disclosure of their inventions in issued patent instruments. (29) There are still other explanations for the patent laws. For instance, the Patent Act of1952 (30) is thought bysupporters to stimulate technological advancement by inducing individuals to "invent around"patented technology. Issued patent instruments may point the way for others to developimprovements, exploit new markets or discover new applications for the patented technology. (31) The patent system mayencourage patentees to exploit their proprietary technologies during the term of the patent. Proponents believe the protection provided by a patent's proprietary rights increases the likelihooda firm will continue to refine, produce and market the patented technology. (32) Finally, the patent law hasbeen identified as a facilitator of markets. Absent patent rights, an inventor may have scant tangibleassets to sell or license, and even less ability to police the conduct of a contracting party. Byreducing a licensee's opportunistic possibilities, the patent system lowers transaction costs and makestechnology-based transactions more feasible. (33) The patent system has nonetheless attracted a great number of critics. Some assert that thepatent system is unnecessary due to market forces that already suffice to create an optimal level ofinvention. The desire to gain a lead time advantage over competitors may well provide sufficientinducement to invent without the need for further incentives. (34) Some commentatorsobserve that successful inventors are sometimes transformed into complacent, established enterprisesthat use patents to suppress the innovations of others. (35) Others assert that the inventions that have fueled some of ourmost dynamic industries, such as early biotechnologies and computer software, arose at a time whenpatent rights were unavailable or uncertain. (36) While these various justifications and criticisms have differing degrees of intuitive appeal,none of them has been empirically validated. No conclusive study broadly demonstrates that we getmore useful inventive activity with patents than we would without them. The justifications andcriticisms of the patent system therefore remain open to challenge. (37) In order to obtain patent protection, innovative individuals and firms must prepare and submitapplications to the U.S. Patent and Trademark Office ("USPTO"). (38) USPTO officials, knownas examiners, then assess whether the application merits the award of a patent. (39) The patent acquisitionprocess is commonly known as "prosecution." (40) Under the Patent Act of 1952, (41) a patent application must include a specification that socompletely describes the invention that skilled artisans are able to practice it without undueexperimentation. This requirement is referred to as "enablement." The patent specification mustalso provide information upon the "best mode" known to the inventor of practicing theinvention. (42) The Patent Act also requires that applicants draft at least one claim that particularly pointsout and distinctly claims the subject matter that they regard as their invention. (43) In practice most patentapplications contain multiple claims. Each claim sets out a distinct proprietary interest that thepatent applicant asserts for himself. While reviewing a submitted application, the examiner will determine whether the claimedinvention fulfills certain substantive standards set by the patent statute. Two of the most importantpatentability criteria are novelty and nonobviousness . To be judged novel, the claimed inventionmust not be fully anticipated by a prior patent, publication or other knowledge within the publicdomain. (44) The sumof these earlier materials, which document state-of-the-art knowledge that is accessible to the public,is termed the "prior art." To meet the standard of nonobviousness, an invention must not have beenreadily within the ordinary skills of a competent artisan based upon the teachings of the priorart. (45) Should the USPTO allow the application to issue as a granted patent, the owner or ownersof the patent obtain the right to exclude others from making, using, selling, offering to sell, orimporting into the United States the claimed invention. (46) Each inventor named in the patent is presumed to be itsowner. (47) If the patenthas multiple owners, each joint owner is presumed to own an undivided interest in the entire patent,and each may exploit the patented invention without the need to obtain permission from any otherjoint owner. As the Patent Act states: In the absence of any agreement to the contrary, eachof the joint owners of a patent may make, use, offer to sell, or sell the patented invention in theUnited States, or import the patented invention into the United States, without the consent of andwithout accounting to the other owners. (48) This ownership arrangement is formally known as a "tenancy-in-common." (49) The term of the patent is ordinarily set at 20 years from the date the patent application wasfiled. (50) Patent titletherefore provides inventors with limited periods of exclusivity in which they may practice theirinventions, or license others to do so. Patent owners bear responsibility for monitoring theircompetitors to determine whether they are using the patented invention or not.