Digital Commons Network^™

Patents And Competition: Commercializing Innovation In The Global Ecosystem For 5g And The Internet Of Things, Thomas D. Grant, F. Scott Kieff

GW Law Faculty Publications & Other Works

Times are changing as our global ecosystem for commercializing innovation helps bring new technologies to market, networks grow, interconnections and transactions become more complex around standards and otherwise, all to enable vast opportunities to improve the human condition, to further competition, and to improve broad access. The policies that governments use to structure their legal systems for intellectual property, especially patents, as well as for competition—or antitrust—continue to have myriad powerful impacts and raise intense debates over challenging questions. This Chapter explores a representative set of debates about policy approaches to patents, to elucidate particular ideas to bear in mind …

Competition Policy Retrospective: The Formation Of The United Launch Alliance And The Ascent Of Spacex, William E. Kovacic

GW Law Faculty Publications & Other Works

In May 2005, Boeing and Lockheed Martin announced plans to form the United Launch Alliance, a joint venture which combined the only two suppliers of medium-to-heavy national security related launch services to the U.S. government. The Federal Trade Commission reviewed the transaction’s antitrust implications and, in consultation with the Department of Defense, approved the deal in October 2006 subject to restrictions governing ULA’s relationship other satellite manufacturers and providers of launch services. The DOD endorsed the transaction on the ground that the joint venture would increase launch reliability by concentrating production and launch services in a single team rather than …

Dawn Of The Intercontinental Sniper: The Drone's Cascading Contribution To The Modern Battlefield's Complexity: A Re-View Essay Of Predator: The Secret Origins Of The Drone Revolution, By Richard Whittle, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

This review essay discusses a unique book that chronicles the UAV (unmanned aerial vehicle) or "drone" revolution with a focus on the Predator weapon system. Although brought to market by a mainstream publisher, the book offers a thought-provoking, heavily researched, non-fiction case study involving national security, defense acquisition, and international law. We congratulate author Richard Whittle for crafting a thrilling and highly informative history of technological innovation, government contracting, and weapons system development and deployment, while introducing complex issues of national security and international law, that nonetheless left us eagerly anticipating a forthcoming action movie.

This review essay introduces prospective …

Eyes On The Prize, Head In The Sand: Filling The Due Process Vacuum In Federally Administered Contests, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

The article introduces readers to the recent proliferation of federal prize contests, which sovereigns have employed, albeit sporadically, since the mid-sixteenth century to incentivize breakthrough innovation. In the past decade, the federal government’s use of prize contests has skyrocketed, which makes sense in an era of constrained government resources. Prize contests offer seemingly unlimited potential to break through existing technological barriers at less expense than traditional innovation incentivizing tools such as contracts, grants, and patents. But that upside potential comes at a cost.

For every ebullient prizewinner, there are potentially innumerable “losers,” many of whom feel wronged, exploited, or, at …

Prizes! Innovating, Risk Shifting, And Avoiding Contracts And Grants, Steven L. Schooner, Nathaniel E. Castellano

GW Law Faculty Publications & Other Works

This short piece introduces prizes (or prize contests), which have become the darling of the Obama administration. Public managers increasingly find prizes more attractive than the more conventional and heavily regulated vehicles that they replace, contracts and grants. The paper explains some of the advantages of this increasingly popular approach and signals a cautionary note, particularly to contestants. Unfortunately, the government has not yet provided a straightforward means for contestants to obtain meaningful review if and when disputes arise. Accordingly, the authors suggest that, while shifting risk to the private sector is fair game, contest-sponsoring agencies should respect the private …

Incentive Effects From Different Approaches To Holdup Mitigation Surrounding Patent Remedies And Standard-Setting Organizations, F. Scott Kieff, Anne Layne-Farrar

GW Law Faculty Publications & Other Works

Debates about patent policy often focus on the potential for the threat of a court-imposed remedy for patent infringement to cause manufacturing entities and others to suffer patent holdup, especially when standardized industries are involved. This article uses lessons from the broader economics and political science literatures on holdup to explore various approaches to setting remedies for patent infringement—namely injunctions and money damages in the form of lost profits or reasonable royalties—with an eye towards the nature and extent of various forms of holdup they each might generate. In so doing, the article contrasts various narrower sub-categories of the broad …

The Ftc, Ip, And Ssos: Government Hold-Up Replacing Private Coordination, F. Scott Kieff, Richard A. Epstein, Daniel F. Spulber

GW Law Faculty Publications & Other Works

In its recent report entitled “The Evolving IP Marketplace,” the Federal Trade Commission (FTC) advances a far-reaching regulatory approach (Proposal) whose likely effect would be to distort the operation of the intellectual property (IP) marketplace in ways that will hamper the innovation and commercialization of new technologies. The gist of the FTC Proposal is to rely on highly non-standard and misguided definitions of economic terms of art such as “ex ante” and “hold-up,” while urging new inefficient rules for calculating damages for patent infringement. Stripped of the technicalities, the FTC Proposal would so reduce the costs of infringement by downstream …

How Not To Invent A Patent Crisis, F. Scott Kieff, Henry E. Smith

GW Law Faculty Publications & Other Works

This short essay written for a broad audience addresses the problems that are at the center of current debates in academic and policy circles about the patent system. Most current patent reform proposals are designed to give officials and courts more power to weaken or eliminate ‘‘unworthy’’ patents and take primary aim at so-called patent trolls. This essay argues that in light of the rapid, and excessive, changes that have already occurred in the courts, what patent law needs is a tweaking of existing safety valves and processes - not opening the floodgates to more discretion and uncertainty.

Intellectual Property For Market Experimentation, Michael B. Abramowicz, John F. Duffy

GW Law Faculty Publications & Other Works

Intellectual property protects investments in the production of information, but the literature on the topic has largely neglected one type of information that intellectual property might protect: information about the market success of goods and services. A first entrant into a market often cannot prevent other firms from free-riding on information about consumer demand and market feasibility. Despite the existence of some first-mover advantages, the incentives to be the first entrant into a market may sometimes be inefficiently low, thereby giving rise to a net first-mover disadvantage and discouraging innovation. Intellectual property may counteract this inefficiency by providing market exclusivity, …

Coordination, Property & Intellectual Property: An Unconventional Approach To Anticompetitive Effects & Downstream Access, F. Scott Kieff

GW Law Faculty Publications & Other Works

Countless high profile cases like the recent patent litigation threatening to shut down the BlackBerry® service have long drawn sharp criticism; and in response, most of the intellectual property (IP) literature argues for the use of weaker, or liability rule, enforcement as a tool for solving the problems of anticompetitive effects and downstream access while still providing sufficient rewards to IP creators. This paper takes an unconventional approach under which rewards don't matter much, but coordination does matter a great deal. The paper shows how stronger, or property rule, enforcement facilitates the good type of coordination that increases competition and …

Ip Transactions: On The Theory & Practice Of Commercializing Innovation, F. Scott Kieff

GW Law Faculty Publications & Other Works

All too often within organizations and communities, innovations are not generated or put to use as rapidly or as broadly as they could be. Chief targets for blame include the problems of transaction costs, agency costs, lack of coordination, and improper incentives. Borrowing from the rich literature in the field generally known as new institutional economics, which has studied these types of problems more broadly, this Article elucidates how some practical tools might be expected to mitigate such problems. Particular arrangements of formal law and informal practice may help reach across the "valley of death" between early stage technologies and …

The Basics Matter: At The Periphery Of Intellectual Property, F. Scott Kieff, Troy A. Paredes

GW Law Faculty Publications & Other Works

Controversies often arise at the interfaces where intellectual property ("IP") law meets other topics in law and economics, such as property law, contract law, and antitrust law. Participants in the debates over how to mediate these interfaces often view each interface as a special case deserving unique treatment under the law. The doctrines of copyright and patent misuse are cases in point: they graft select antitrust principles onto copyright or patent law, even though there is an entirely distinct body of law - antitrust law - designed to deal with the putative concerns about competition that allegedly give rise to …

The Case Against Copyright: A Comparative Institutional Analysis Of Intellectual Property Regimes, F. Scott Kieff

GW Law Faculty Publications & Other Works

Contemporary debates over intellectual property ("IP") generally evidence positions that appear to line up at opposite ends of the same axis, with one side arguing for more rights for IP owners under each major regime - patent, trademark, and copyright - and the other side arguing for fewer. Approaching from what some may see as a "more" IP view, this paper offers the counterintuitive suggestion to consider abolishing one of these IP regimes - copyright, at least with respect to the entertainment industry, which represents one of that regime's most commercially significant users. This realization is in fact consistent with …

The Case For Registering Patents And The Law And Economics Of Present Patent-Obtaining Rules, F. Scott Kieff

GW Law Faculty Publications & Other Works

(Note: this is a substantially revised version of Harvard Olin Working Paper No. 415 of May 2003, SSRN Abstract ID No. 392202 (http://ssrn.com/abstract=392202) and includes more detailed discussion of issues including the DOE, willfulness and the Knorr decision, and the FTC Report on patents and antitrust.)

Critics of the patent system suggest the rules for determining patentability should be stricter, subjecting patents to more scrutiny during Patent Office examination. This Article offers a counterintuitive model system under which patent applications are registered, not examined, to elucidate a new normative view that sees present positive law rules for obtaining patents as …