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Full-Text Articles in Law
Regulation And The Marginalist Revolution, Herbert J. Hovenkamp
Regulation And The Marginalist Revolution, Herbert J. Hovenkamp
All Faculty Scholarship
The marginalist revolution in economics became the foundation for the modern regulatory State with its “mixed” economy. Marginalism, whose development defines the boundary between classical political economy and neoclassical economics, completely overturned economists’ theory of value. It developed in the late nineteenth century in England, the Continent and the United States. For the classical political economists, value was a function of past averages. One good example is the wage-fund theory, which saw the optimal rate of wages as a function of the firm’s ability to save from previous profits. Another is the theory of corporate finance, which assessed a corporation’s …
The Battle To Define Asia’S Intellectual Property Law: From Tpp To Rcep, Anupam Chander, Madhavi Sunder
The Battle To Define Asia’S Intellectual Property Law: From Tpp To Rcep, Anupam Chander, Madhavi Sunder
Georgetown Law Faculty Publications and Other Works
A battle is under way to decide the intellectual property law for half the world’s population. A trade agreement that hopes to create a free trade area even larger than that forged by Genghis Khan will define intellectual property rules across much of Asia and the Pacific. The sixteen countries negotiating the Regional Comprehensive Economic Partnership (RCEP) include China, India, Japan, and South Korea, and stretch to Australia and New Zealand. A review of a leaked draft reveals a struggle largely between India on one side and South Korea and Japan on the other over the intellectual property rules that …
Can A Court Change The Law By Saying Nothing?, Paul Gugliuzza, Mark A. Lemley
Can A Court Change The Law By Saying Nothing?, Paul Gugliuzza, Mark A. Lemley
Faculty Scholarship
Can an appellate court alter substantive law without writing an opinion? We attempt to answer that question by conducting a novel empirical investigation into how the Federal Circuit has implemented the Supreme Court’s 2014 ruling in Alice v. CLS Bank, the most recent in a series of Supreme Court decisions strengthening patent law’s patentable subject matter requirement. Our dataset includes each one of the Federal Circuit’s more than 100 decisions on patentable subject matter in the three years since Alice, including affirmances issued without an opinion under Federal Circuit Rule 36.
Including those no-opinion affirmances, the Federal Circuit has found …
Intellectual Property Policies For Solar Engineering, Jesse L. Reynolds, Jorge L. Contreras, Joshua D. Sarnoff
Intellectual Property Policies For Solar Engineering, Jesse L. Reynolds, Jorge L. Contreras, Joshua D. Sarnoff
Utah Law Faculty Scholarship
Governance of solar geoengineering is important and challenging, with particular concern arising from commercial actors’ involvement. Policies relating to intellectual property, including patents and trade secrets, and to data access will shape private actors’ behavior and regulate access to data and technologies. There has been little careful consideration of the possible roles of and interrelationships among commercial actors, intellectual property, and intellectual property policy. Despite the current low level of commercial activity and intellectual property rights in this domain, we expect both to grow as research and development continue. Given the public good nature of solar geoengineering, the relationship between …
Assessing The Effectiveness Of The Eco-Patent Commons: A Post-Mortem Analysis, Jorge L. Contreras, Bronwyn H. Hall, Christian Helmers
Assessing The Effectiveness Of The Eco-Patent Commons: A Post-Mortem Analysis, Jorge L. Contreras, Bronwyn H. Hall, Christian Helmers
Utah Law Faculty Scholarship
The authors revisit the effect of the “Eco-Patent Commons” (EcoPC) on the diffusion of patented environmentally friendly technologies following its discontinuation in 2016. Established in January 2008 by several large multinational companies, the not-for-profit initiative provided royalty-free access to 248 patents covering 94 “green” inventions. In previous work, Bronwyn Hall and Christian Helmers (2013) suggested that the patents pledged to the commons had the potential to encourage the diffusion of valuable environmentally friendly technologies. The updated results in this paper now show that the commons did not increase the diffusion of pledged inventions, and that the EcoPC suffered from a …
Progress Or Profit: Reconsidering The Shortened Statutory Period Scheme, Max Oppenheimer
Progress Or Profit: Reconsidering The Shortened Statutory Period Scheme, Max Oppenheimer
All Faculty Scholarship
No abstract provided.
Ignorance Over Innovation: Why Misunderstanding Standard Setting Organizations Will Hinder Technological Progress, Kristen Osenga
Ignorance Over Innovation: Why Misunderstanding Standard Setting Organizations Will Hinder Technological Progress, Kristen Osenga
Law Faculty Publications
On January 17, 2017, the Federal Trade Commission (FTC) sued Qualcomm Inc. in federal district court, alleging antitrust violations in the company's licensing of semiconductor chips used in cell phones and more. The suit alleges, in part, that Qualcomm refuses to license its patents that cover innovations incorporated in technology standards (standard-essential patents, or SEPs), in contradiction of the company's promise to license this intellectual property on fair, reasonable, and nondiscriminatory (FRAND) terms. According to the FTC, Qualcomm's behavior reduces competitors' ability to participate in the market, raises prices paid by consumers for products incorporating the standardized technology, and at …
Heterogeneity Among Patent Plaintiffs: An Empirical Analysis Of Patent Case Progression, Settlement, And Adjudication, Christopher A. Cotropia
Heterogeneity Among Patent Plaintiffs: An Empirical Analysis Of Patent Case Progression, Settlement, And Adjudication, Christopher A. Cotropia
Law Faculty Publications
This article empirically studies current claims that patent trolls, also known as patent assertion entities (PAEs) or non-practicing entities (NPEs), behave badly in litigation by bringing frivolous patent infringement suits and seeking nuisance fee settlements. The study explores these claims by examining the relationship between the type of patenteeplaintiffs and litigation outcomes (e.g., settlement, grant of summary judgment, trial, and procedural dispositions), while taking into account, among other factors, the technology of the patents being asserted and the identity of the lawyers and judges. The study finds significant heterogeneity among different patent holder entity types. Individual inventors, failed operating companies, …
Foreign Patent Decisions And Harmonization: A View Of The Presumption Against Giving Foreign Patent Decisions Preclusive Effect In United States Proceedings In Light Of Patent Law International Harmonization, Roberto Rosas
Faculty Articles
Where there is a United States patent, there are also likely multiple foreign counterpart patents. Armed with a patent, a holder can then move to stop others from infringing on his invention, and more often than not, the defendant will argue that the United States patent is invalid, often citing foreign decisions and proceedings in support of that claim. Given the territorial nature of patents and the fact that countries have different requirements and standards for granting patents, United States courts have applied a presumption against giving preclusive effect to foreign patent decisions. The courts, however, have made clear that …
All For Copyright Stand Up And Holler! Three Cheers For Star Athletica And The U.S. Supreme Court’S Perceived And Imagined Separately Test, David E. Shipley
All For Copyright Stand Up And Holler! Three Cheers For Star Athletica And The U.S. Supreme Court’S Perceived And Imagined Separately Test, David E. Shipley
Scholarly Works
In March 2017 the United States Supreme Court held in Star Athletica L.L.C. v. Varsity Brands Inc. that an artistic feature incorporated into the design of a useful article could be protected by copyright when that feature could be perceived as a two- or three-dimensional work of art separate from the useful article, and imagined separately as a protectable pictorial, graphic, or sculptural work. This two-part test replaces a variety of tests which courts and commentators proposed and applied during the last 40 years. The Star Athletica decision is predicted to be a boon to the fashion and apparel industry, …
What Happened To The Public’S Interest In Patent Law?, Kristen Jakobsen Osenga
What Happened To The Public’S Interest In Patent Law?, Kristen Jakobsen Osenga
Law Faculty Publications
Protecting intellectual property is the government’s most important tool to encourage innovation, as our country has understood since its founding. The Constitution provides for the grant of exclusive patent rights to “promote the progress of science and the useful arts.” Thomas Jefferson, who was initially skeptical of the value of patents, later remarked, “An Act of Congress authorising [sic] the issuing patents for new discoveries has given a spring to invention beyond my conception.” From the very first patent, issued in 1790, to the 10 millionth patent, issued in June 2018,4 the United States has seen remarkable amounts of invention …
The Rule Of Reason, Herbert J. Hovenkamp
The Rule Of Reason, Herbert J. Hovenkamp
All Faculty Scholarship
Antitrust’s rule of reason was born out of a thirty-year (1897-1927) division among Supreme Court Justices about the proper way to assess multi-firm restraints on competition. By the late 1920s the basic contours of the rule for restraints among competitors was roughly established. Antitrust policy toward vertical restraints remained much more unstable, however, largely because their effects were so poorly understood.
This article provides a litigation field guide for antitrust claims under the rule of reason – or more precisely, for situations when application of the rule of reason is likely. At the time pleadings are drafted and even up …
Reasonable Patent Exhaustion, Herbert J. Hovenkamp
Reasonable Patent Exhaustion, Herbert J. Hovenkamp
All Faculty Scholarship
A lengthy tug of war between the Supreme Court and the Federal Circuit Court of Appeals may have ended when the Supreme Court held that the sale of a patented article exhausts the patentee seller’s rights to enforce restrictions on that article through patent infringement suits. Further, reversing the Federal Circuit, the parties cannot bargain around this rule through the seller’s specification of conditions stated at the time of sale, no matter how clear. No inquiry need be made into the patentee’s market power, anticompetitive effects, or other types of harms, whether enforcement of the condition is socially costly or …
Patent Pool Outsiders, Michael Mattioli
Patent Pool Outsiders, Michael Mattioli
Articles by Maurer Faculty
Individuals who decline to join cooperative groups — outsiders — raise concerns in many areas of law and policy. From trade policy to climate agreements to class action procedures, the fundamental concern is the same: a single member of the group who drops out could weaken the remaining union. This Article analyzes the outsider problem as it affects patents.
The outsider question has important bearing on patent and antitrust policy. By centralizing and simplifying complex patent licensing deals, patent pools conserve tremendous transaction costs. This allows for the widespread production and competitive sale of many useful technologies, particularly in the …
Congress Considering Legislation Intended To Reverse The Recent Trend Toward Devaluation Of The Us Patent Right, Christopher M. Holman
Congress Considering Legislation Intended To Reverse The Recent Trend Toward Devaluation Of The Us Patent Right, Christopher M. Holman
Faculty Works
Decisions of the United States Supreme Court spanning the last quarter of a century that have, in the aggregate, substantially devalued the patent right. The Court’s four decisions reinvigorating and substantially raising the patent eligibility bar have probably resulted in the most critical commentary, but a host of other decisions have also served to erode the patent right in multiple dimensions, including the scope of potentially patent-able subject matter as well as the strength and enforce-ability of issued patents. In 2011 Congress joined in when it enacted the America Invents Act (AIA), which includes multiple provisions tending to devalue patents, …
Invention Of A Slave, Brian L. Frye
Invention Of A Slave, Brian L. Frye
Law Faculty Scholarly Articles
On June 10, 1858, the Attorney General issued an opinion titled Invention of a Slave, concluding that a slave owner could not patent a machine invented by his slave, because neither the slave owner nor his slave could take the required patent oath. The slave owner could not swear to be the inventor, and the slave could not take an oath at all. The Patent Office denied at least two patent applications filed by slave owners, one of which was filed by Senator Jefferson Davis of Mississippi, who later became the President of the Confederate States of America. But …