If the patented gene is not absolutely essential for use by a downstream researcher, in that there are substitutes available to work with or ways in which the patent in question could be circumvented, clearly the patented gene will not block the downstream researcher. In this sense, while the first part of the title, “Block Me Not,” expresses the blocking concern in general (the thousand-mile journey), the latter part, “How ‘Essential’ Are Patented Genes?,” is the more specific question that this Article seeks to address (the first step in this long and arduous journey).

The FCC now has the opportunity to deliver additional consumer benefits through comprehensive intercarrier compensation reform. Given the complexity of the issues, any reform effort undoubtedly will involve significant further rulemaking and litigation. In the din of competing interests, it may be difficult to remain focused on what is arguably the most important goal: promotion of consumer welfare.16 Even if reform incorporates other goals, decision makers need a solid analysis of consumer welfare so they can understand when other goals might conflict and identify tradeoffs.

This Article examines the impact on consumer welfare of the current system and several major elements of proposed reforms. Part II assesses the extent to which the current system may enhance consumer welfare by addressing a genuine market failure. Part III identifies the distortions and inefficiencies created by the current system. Part IV assesses elements of proposed reforms, and Part V concludes by offering some recommendations based on that assessment. If regulators, courts, and (dare we hope) interested parties can keep this analysis in mind, the ultimate result may yet make consumers better off.

                          Notes