Digital Commons Network^™

International Knowledge Flows And Technological Advance: The Role Of International Migration, Kacey N. Douglas

College of Business: Dissertations, Theses, and Student Research

Immigration is a major aspect of globalization. As the world becomes increasingly integrated, it becomes important to learn more about the effects of immigration on global economic growth. According to Robert Solow’s long run growth model, technological advance is the only form of economic growth sustainable in the long run. Those who contribute to technological advance – highly skilled labor – however, increasingly emigrate from lesser developed to more developed countries in a process known as brain drain. This process has been shown to lead to a permanent increase in income and growth in the host country relative to the …

Technology Transfer And Innovation Policy At Canadian Universities: Opportunities And Social Costs, Samuel Trosow, Michael B. Mcnally, Laura E. Briggs, Cameron Hoffman, Cassandra D. Ball, Adam Jacobs, Bridget Moran

FIMS Publications

This report, supported by a Social Sciences and Humanities Research Council (SSHRC) Knowledge Synthesis Grant, critically examines the role of universities in transmitting knowledge in the forms of technology transfer mechanisms, intellectual property agreements and other knowledge diffusion policies. In reviewing and synthesizing the recent literature on the topic, we seek to provide some initial evidence-based policy recommendations in order to generally strengthen Canada‘s innovation ecosystem and more specifically to maximize the return on the nation‘s investment in higher education research and development.

Antitrust And The Movement Of Technology, Herbert J. Hovenkamp

All Faculty Scholarship

Patents create strong incentives for collaborative development. For many technologies fixed costs are extremely high in relation to variable costs. A second feature of technology that encourages collaborative development is the need for interoperability or common standards. Third, in contrast to traditional commons, intellectual property commons are almost always nonrivalrous on the supply side. If ten producers all own the rights to make a product covered by a patent, each one can make as many units as it pleases without limiting the number that others can make. That might seem to be a good thing, but considered ex ante it …

Modifying Rand Commitments To Better Price Patents In The Standards Setting Context, Kyle Rozema

Scholarship@WashULaw

This Article addresses a single problem: how can we allow engineers and scientists from different institutions to collaborate to set the best technical standards possible, not considering intellectual property (“IP”) rights, and then establish the royalty rates for each patent owner after the standard is set? The current system attempting to solve this problem requires patent owner participants to sign a Reasonable and Non-Discriminatory (“RAND”) commitment. These RAND commitments require the participants to agree an ante, i.e., before the standard is actually set, to license whatever patent rights they may ultimately have in the standard on terms that are reasonable …

Markets In Ip And Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

The purpose of market definition in antitrust law is to identify a grouping of sales such that a single firm who controlled them could maintain prices for a significant time at above the competitive level. The conceptions and procedures that go into “market definition” in antitrust can be quite different from those that go into market definition in IP law. When the issue of market definition appears in IP cases, it is mainly as a query about the range over which rivalry occurs. This rivalry may or may not have much to do with a firm’s ability to charge a …

Antitrust And Patent Law Analysis Of Pharmaceutical Reverse Payment Settlements, Herbert J. Hovenkamp

All Faculty Scholarship

Patent settlements in which the patentee pays the alleged infringer to stay out of the market are largely a consequence of the Hatch-Waxman Act, which was designed to facilitate the entry of generic drugs by providing the first generic producer to challenge a pioneer drug patent with a 180 day period of exclusivity. This period can be extended by a settlement even if the generic is not producing, and in any event all subsequent generic firms are denied the 180 day exclusivity period, significantly reducing their incentive to enter.

The Circuit Courts of Appeal are split three ways over such …

“Enemies Of Life In The Name Of Life”: Seed Patents, Gm Crops, And The Global South, Patricia Arenson

Anthropology Department Honors Papers

In the past few decades agribusiness in the global North has developed a booming industry in genetically modified (GM) crops; industry giants have secured patents and aggressively protected them to maximize profits. This new technology has been exported to the Global south, where its introduction has caused a cascade of horrific problems for farmers and non-­‐farmers alike. GM crops and seed patents have exacerbated poverty, accelerated the loss of indigenous knowledge, and threatened to destroy ecosystems through the loss of biodiversity. This honors thesis explores these issues with a focus on the situation in India, where Vandana Shiva has led …

Antitrust And Innovation: Where We Are And Where We Should Be Going, Herbert J. Hovenkamp

All Faculty Scholarship

For large parts of their history intellectual property law and antitrust law have worked so as to undermine innovation competition by protecting too much. Antitrust policy often reflected exaggerated fears of competitive harm, and responded by developing overly protective rules that shielded inefficient businesses from competition at the expense of consumers. By the same token, the IP laws have often undermined rather than promoted innovation by granting IP holders rights far beyond what is necessary to create appropriate incentives to innovate.

Perhaps the biggest intellectual change in recent decades is that we have come to see patents less as a …

Introduction To Creation Without Restraint: Promoting Liberty And Rivalry In Innovation, Christina Bohannan, Herbert J. Hovenkamp

All Faculty Scholarship

This document contains the table of contents, introduction, and a brief description of Christina Bohannan & Herbert Hovenkamp, Creation without Restraint: Promoting Liberty and Rivalry in Innovation (Oxford 2011).

Promoting rivalry in innovation requires a fusion of legal policies drawn from patent, copyright, and antitrust law, as well as economics and other disciplines. Creation Without Restraint looks first at the relationship between markets and innovation, noting that innovation occurs most in moderately competitive markets and that small actors are more likely to be truly creative innovators. Then we examine the problem of connected and complementary relationships, a dominant feature of …

Notice And Patent Remedies, Herbert J. Hovenkamp

All Faculty Scholarship

In private enforcement systems such as the one for patents, remedies perform the “public” function of determining the optimal amount of protection and deterrence. If every patent were properly granted and had just the right scope to incentivize innovation, then strict enforcement and harsh penalties for infringement would be a good idea. But in a world where too many patents are granted, their boundaries are often ambiguous and scope excessive, things are not so simple. The expected likelihood and magnitude of the penalty determines the number of infringement suits and the litigation resources that will be poured into them. As …

Federal Circuit Patent Precedent: An Empirical Study Of Institutional Authority And Ip Ideology, David Pekarek-Krohn, Emerson H. Tiller

Faculty Working Papers

In this paper, we aim to better understand the institutional authority of the Federal Circuit as a source of law as well as the influence of pro-patent and anti-patent ideological forces at play between the Supreme Court, Federal Circuit, and the district courts. Our specific focus is on the district courts and how they cite Federal Circuit precedent relative to Supreme Court precedent to support their decisions, whether they be pro-patent or anti-patent. Using a variety of citation approaches and statistical tests, we find that federal district courts treat the Federal Circuit as more authoritative (compared to the Supreme Court) …

The Obama Administration And Section Two Of The Sherman Act, Herbert J. Hovenkamp

All Faculty Scholarship

During the administration of President George W. Bush, the Antitrust Division was not enthusiastic about use of §2 of the Sherman Act to pursue anticompetitive single-firm conduct. Indeed, its most prominent contribution on the issue was the Antitrust Division’s §2 Report, which the Obama Antitrust Division withdrew only eight months after it was issued.This withdrawal was entirely in keeping with candidate Obama’s repeated promises to reinvigorate antitrust enforcement.

This essay analyzes the current state of antitrust and makes recommendations concerning structures and practices where increased §2 enforcement is warranted and those where it is not. Wise use of enforcement dollars …

Ip And Antitrust: Reformation And Harm, Christina Bohannan, Herbert J. Hovenkamp

All Faculty Scholarship

Antitrust and intellectual property law both seek to improve economic welfare by facilitating competition and investment in innovation. At various times both antitrust and IP law have wandered off this course and have become more driven by special interests. Today, antitrust and IP are on very different roads to reform. Antitrust reform began in the late 1970s with a series of Supreme Court decisions that linked the plaintiff’s harm and right to obtain a remedy to the competition - furthering goals of antitrust policy. Today, patent law has begun its own reform journey, but it is in a much earlier …

Schumpeterian Competition And Antitrust, Herbert J. Hovenkamp

All Faculty Scholarship

Joseph Schumpeter's vision of competition saw it as a destructive process in which effort, assets and fortunes were continuously destroyed by innovation. One possible implication is that antitrust's attention on short-run price and output issues is myopic: what seems at first glance to be a monopolistic exclusionary practice might really be an innovative enterprise with enormous payoffs in the long run. While this may be the case, three qualifications are critical. First, one must not confuse the prospect of innovation with the scope of the intellectual property laws; their excesses and special interest capture cast serious doubt on the proposition …

Intellectual Property Institutions For Plant Breeding, Richard K. Perrin, Lilyan Fulginiti

Lilyan E. Fulginiti Publications

Intellectual property rights for crop plant material should in principle increase social welfare by increasing private research investments to a level closer to the social optimum. In the US, plant patents were first introduced in 1930 by legislation that applied only to asexually reproduced plants. This was followed in 1970 by the weaker plant breeders' rights legislation (PBR) for sexually reproduced plants. Judicial decisions in 1980 and 1985, however, extended much stronger utility patent protection to plant materials. Here we examine theoretical welfare implications of weak PBR vs strong utility patents in a North-South context of technology transfer in agriculture …

Intellectual Property Institutions For Plant Breeding, Richard K. Perrin, Lilyan Fulginiti

Department of Agricultural Economics: Faculty Publications

Intellectual property rights for crop plant material should in principle increase social welfare by increasing private research investments to a level closer to the social optimum. In the US, plant patents were first introduced in 1930 by legislation that applied only to asexually reproduced plants. This was followed in 1970 by the weaker plant breeders' rights legislation (PBR) for sexually reproduced plants. Judicial decisions in 1980 and 1985, however, extended much stronger utility patent protection to plant materials. Here we examine theoretical welfare implications of weak PBR vs strong utility patents in a North-South context of technology transfer in agriculture …

Intellectual Property Management In Health And Agricultural Innovation: A Handbook Of Best Practices, Vol. 2, Anatole Krattiger, Richard T. Mahoney, Lita Nelsen, Jennifer A. Thomson, Alan B. Bennett, Kanikaram Satyanarayana, Gregory D. Graff, Carlos Fernandez, Stanley Kowalski

Law Faculty Scholarship

Prepared by and for policy-makers, leaders of public sector research establishments, technology transfer professionals, licensing executives, and scientists, this online resource offers up-to-date information and strategies for utilizing the power of both intellectual property and the public domain. Emphasis is placed on advancing innovation in health and agriculture, though many of the principles outlined here are broadly applicable across technology fields. Eschewing ideological debates and general proclamations, the authors always keep their eye on the practical side of IP management. The site is based on a comprehensive Handbook and Executive Guide that provide substantive discussions and analysis of the opportunities …

Lexis V. Westlaw For Research - Better, Different, Or Same And The Qwerty Effect?, Jon R. Cavicchi

Law Faculty Scholarship

There are synchronistic moments when in the process of writing. While contemplating this article, an email message made its way to my desk, past Pierce Law Center's spam firewall with the following subject line: "Pepsi v. Coke-Tell Us--Get $10." Do IP researchers choose Lexis or Westlaw justified by taste? Surely you jest, some voice said to me. Repressing this message, I proceeded to compare platform content, perform literature searches, and poll students and IP professors.

Yet another synchronistic moment came as the email from those taking the poll steamed into my email. Many IP professors indicated that they made the …

Intellectual Property Management In Health And Agricultural Innovation: Executive Guide, Anatole Krattiger, Richard T. Mahoney, Lita Nelsen, Jennifer A. Thomson, Alan B. Bennett, Kanikaram Satyanarayana, Gregory D. Graff, Carlos Fernandez, Stanley Kowalski

Law Faculty Scholarship

Prepared by and for policy-makers, leaders of public sector research establishments, technology transfer professionals, licensing executives, and scientists, this online resource offers up-to-date information and strategies for utilizing the power of both intellectual property and the public domain. Emphasis is placed on advancing innovation in health and agriculture, though many of the principles outlined here are broadly applicable across technology fields. Eschewing ideological debates and general proclamations, the authors always keep their eye on the practical side of IP management. The site is based on a comprehensive Handbook and Executive Guide that provide substantive discussions and analysis of the opportunities …

Intellectual Property Management In Health And Agricultural Innovation: A Handbook Of Best Practices, Vol. 1, Anatole Krattiger, Richard T. Mahoney, Lita Nelsen, Jennifer A. Thomson, Alan B. Bennett, Kanikaram Satyanarayana, Gregory D. Graff, Carlos Fernandez, Stanley Kowalski

Law Faculty Scholarship

Prepared by and for policy-makers, leaders of public sector research establishments, technology transfer professionals, licensing executives, and scientists, this online resource offers up-to-date information and strategies for utilizing the power of both intellectual property and the public domain. Emphasis is placed on advancing innovation in health and agriculture, though many of the principles outlined here are broadly applicable across technology fields. Eschewing ideological debates and general proclamations, the authors always keep their eye on the practical side of IP management. The site is based on a comprehensive Handbook and Executive Guide that provide substantive discussions and analysis of the opportunities …

Unilateral Refusals To License In The Us, Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

All Faculty Scholarship

Most antitrust claims relating to intellectual property involve challenges to agreements, licensing practices or affirmative conduct involving the use or disposition of the intellectual property rights or the products they cover. But sometimes an antitrust claim centers on an intellectual property owner's refusal to use or license an intellectual property right, perhaps coupled with efforts to enforce the intellectual property right against infringers. The allegation may be that the intellectual property right is so essential to competition that it must be licensed across the board, or that a refusal to license it to one particular party was discriminatory, or that …

Of Patents And Path Dependency: A Comment On Burk And Lemley, R. Polk Wagner

All Faculty Scholarship

This Article delves into issues surrounding the relationship between technology and the patent law. Responding to Dan Burk and Mark Lemley's earlier article, Is Patent Law Technology-Specific?, the piece notes that the basic question posed by Burk and Lemley's article is a relatively easy question given the several doctrines that explicitly link the subject matter context of an invention to the validity and scope of related patents. This sort of technological exceptionalism (which this Article refers to as micro-exceptionalism) is both observable and easily justifiable for a legal regime directed to technology policy. In contrast, Burk and Lemley's identification of, …

Legal Movements In Intellectual Property: Trips, Unilateral Action, Bilateral Agreements, And Hiv/Aids, Margo A. Bagley

Faculty Articles

This Article begins with an overview of the relationship between the Agreement on Trade-Related Aspects of Intellectual Property Rights (the "TRIPS Agreement") and the HIV/AIDS pandemic which created the need for the Doha Declaration. It then discusses two trade-related movements, unilateral action and TRIPS-plus bilateral agreements, that call into question the long-term effectiveness of the TRIPS Agreement process, generally, and the benefits of the Doha Declaration, in particular, in addressing multiple facets of the access to essential medicines problem. This Article concludes that a consideration of these issues should be included in the development of any further TRIPS-related solutions to …

Information Wants To Be Free: Intellectual Property And The Mythologies Of Control, R. Polk Wagner

All Faculty Scholarship

This article challenges a central tenet of the recent criticism of intellectual property rights: the suggestion that the control conferred by such rights is detrimental to the continued flourishing of a public domain of ideas and information. I argue that such theories understate the significance of the intangible nature of information, and thus overlook the contribution that even perfectly controlled intellectual creations make to the public domain. In addition, I show that perfect control of propertized information - an animating assumption in much of the contemporary criticism - is both counterfactual and likely to remain so. These findings suggest that …

Golden Rice: A Case Study In Intellectual Property Management And International Capacity Building, Stanley P. Kowalski, R. David Kryder

Law Faculty Scholarship

In order for agricultural biotechnology (agri-biotech) to play a larger role in the development of sustainable agricultural systems, intellectual property (IP) rights management must be addressed. These issues are not limited to developing countries. With increased globalization, the management of agri-biotech IP rights affects both developing and industrialized countries. In industrialized countries, for example, IP rights risk management entails protection of inventions via strong patent portfolios. For developing countries, IP rights risk management includes the acquisition of rights requisite for the use of inventions essential to the basic welfare of the population. Strategies are needed to bridge these disparate IP …

Reconsidering Estoppel: Patent Administration And The Failure Of Festo, R. Polk Wagner

All Faculty Scholarship

Last Term, in Festo Corporation v. Shoketsu Kinzoku Kogyo Kabashuki Co., the United States Supreme Court missed perhaps the most important opportunity for patent law reform in two decades. At the core of the failure to grasp the implications of "prosecution history estoppel" - a judicially-crafted principle limiting the enforceable scope of patents based on acts occurring during their application process - is the heretofore universal (but ultimately unsupportable) view of the doctrine as an arbitrary ex post limitation on patent scope. This Article demonstrates the serious flaws in this traditionalist approach, and develops a new theory of prosecution history …

Appropriating The Returns From Industrial R&D, Richard C. Levin, Alvin K. Klevorick, Richard R. Nelson, Sidney G. Winter

Cowles Foundation Discussion Papers

In this paper, we describe the results of an inquiry into the nature of appropriability conditions in over one hundred manufacturing industries, and we discuss how this information has been and might be used to cast light on important issues in the economics of innovation and public policy. Our data, derived from a survey of high-level R&D executives, are informed opinions about the nature of an industry’s technological and economic environment rather than quantitative measures of inputs and outputs.