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Articles 1 - 27 of 27
Full-Text Articles in Law
Patent Assertion Entities, Colleen Chien
Patent Assertion Entities, Colleen Chien
Faculty Publications
The DOJ and FTC held a workshop on patent assertion entities on Dec 10 2012. This talk gives an overview of the economics, policy of patent assertion entities drawing upon previous and new empirical work. Using pathbreaking, disruptive techniques and capturing economies of scale, PAEs drive down the cost of patent enforcement. PAEs brought 61% of all patent litigations in 2012, representing fewer defendants than in 2011, because of changes in the patent law. 76% of PAE defendants were sued by a PAE that sued more than 15 defendants, and 61% were sued by a PAE that had brought 8 …
Injunction Junction: Microsoft V Motorola, Case No. 12-35352 (9th Cir. Sept. 28, 2012), Jeff Tye
Injunction Junction: Microsoft V Motorola, Case No. 12-35352 (9th Cir. Sept. 28, 2012), Jeff Tye
GGU Law Review Blog
No abstract provided.
Competition In Information Technologies: Standards-Essential Patents, Non-Practicing Entities And Frand Bidding, Herbert J. Hovenkamp
Competition In Information Technologies: Standards-Essential Patents, Non-Practicing Entities And Frand Bidding, Herbert J. Hovenkamp
All Faculty Scholarship
Standard Setting is omnipresent in networked information technologies. Virtually every cellular phone, computer, digital camera or similar device contains technologies governed by a collaboratively developed standard. If these technologies are to perform competitively, the processes by which standards are developed and implemented must be competitive. In this case attaining competitive results requires a mixture of antitrust and non-antitrust legal tools.
FRAND refers to a firm’s ex ante commitment to make its technology available at a “fair, reasonable and nondiscriminatory royalty.” The FRAND commitment results from bidding to have one’s own technology selected as a standard. Typically the FRAND commitment is …
Startups And Patent Trolls, Colleen Chien
Startups And Patent Trolls, Colleen Chien
Faculty Publications
While patent assertion entities (or patent “trolls”) have received a lot of attention, little of it has focused on the distributional impacts of their demands. The impact on PAEs on startups is crucial, because startups contribute to job creation and innovation, making them potential targets and sources of patents. To assess the impact of trolls on startups, I analyzed a comprehensive database of patent litigations from 2005 to the present, conducted a non-random survey of 223 tech company startups, and interviewed nearly twenty entities with relevant knowledge of startup patent issues.
I find that although large companies tend to dominate …
Reforming Software Patents, Colleen Chien
Reforming Software Patents, Colleen Chien
Faculty Publications
While many believe the patent system has hit a historic and unprecedented low, discontent with patents, and in particular with software patents, is nothing new. In 1966, a Presidential Commission recommended prohibiting software patents because of the PTO’s inability to vet them. In 1883, the Supreme Court railed against “speculative schemers who make it their business to watch the advancing wave of improvement and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax.” In 1836, the Ruggles Report documented how lax patent standards, “encourag[ed] fraudulent speculators in patent rights, deluging the entire …
Cross-Border Ip Infringement: Patents, Marketa Trimble
Cross-Border Ip Infringement: Patents, Marketa Trimble
Boyd Briefs / Road Scholars
Professor Marketa Trimble presented these materials at the CASRIP 20th Anniversary / IP LLM 10th Anniversary IP-across Topic Scholarship Conference on July 28, 2012.
A Generation Of Software Patents, James Bessen
A Generation Of Software Patents, James Bessen
Faculty Scholarship
This report examines changes in the patenting behavior of the software industry since the 1990s. It finds that most software firms still do not patent, most software patents are obtained by a few large firms in the software industry or in other industries, and the risk of litigation from software patents continues to increase dramatically. Given these findings, it is hard to conclude that software patents have provided a net social benefit in the software industry.
Gatewood, Williamson (Sc 595), Manuscripts & Folklife Archives
Gatewood, Williamson (Sc 595), Manuscripts & Folklife Archives
MSS Finding Aids
Finding aid and scans (Click on "Additional Files" below) for Manuscripts Small Collection 595. Legal papers, including license, 1808, copy of patent, 1812, with attached drawing of machine for shelling corn invented by Paul Pilsbury in 1803, and papers pertaining to lawsuit which evolved from the purchasing of the license by Williamson Gatewood of Bowling Green, Kentucky, for rights to sell the machine south of the Green River in Kentucky, 1812-1815. From Warren County Circuit Court Records #149.
Innovation And Competition Policy: Statutory Supplement And Other Materials, Herbert J. Hovenkamp
Innovation And Competition Policy: Statutory Supplement And Other Materials, Herbert J. Hovenkamp
All Faculty Scholarship
This Supplement to Cases and Materials on Innovation and Competition Policy includes the following: (1) a statutory supplement containing relevant provisions of the antitrust laws, the Patent Act, the Copyright Act, and the DMCA: (2) an annotated table of contents. Other supplemental materials, including discussion of recent decisions or other developments, will be added from time to time.
This book will be supplemented frequently as important new decisions or other developments occur. However, the author will attempt not to revise individual chapters during the course of the academic semester in order to avoid confusion in pagination or printing. Instead, supplemental …
An Overview Of Patent Prosecution, Frederick W. Dingledy
An Overview Of Patent Prosecution, Frederick W. Dingledy
Library Staff Publications
No abstract provided.
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
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.
What Is The "Invention"?, Christopher A. Cotropia
What Is The "Invention"?, Christopher A. Cotropia
Law Faculty Publications
Patent law is in flux, with recent disputes and changes in doctrine fueled by increased attention from the Supreme Court and en banc activity by the Federal Circuit. The natural reaction is to analyze each doctrinal area involved on its own. Upon a closer look, however, many patent cases concern a single, fundamental dispute. Conflicts in opinions on such issues as claim interpretation methodology and the written description requirement are really disagreements over which "invention" the courts should be considering. There are two concepts of invention currently in play in patent decisions. The first is an "external invention" definition, in …
Maturing Patent Theory From Industrial Policy To Intellectual Property, Oskar Liivak
Maturing Patent Theory From Industrial Policy To Intellectual Property, Oskar Liivak
Cornell Law Faculty Publications
We have always known that technological progress is important and this country has always aimed to promote it. A large part of that responsibility has fallen on the shoulders of the patent system. Embarrassingly, despite over two hundred years of experience, we still do not actually know if the patent system helps or hinders technological progress. This Essay argues that the problem is not the patent system but rather patent theory. Patent theory suffers from three linked problems: exceptionalness, indeterminacy, and animosity. First, patent law is seen as a necessarily unique exception to the overall market economy. By artificially making …
Funk Brothers - An Exercise Obviousness, Shine Tu
Funk Brothers - An Exercise Obviousness, Shine Tu
Law Faculty Scholarship
No abstract provided.
Race To The Bottom, Colleen Chien
Race To The Bottom, Colleen Chien
Faculty Publications
The defensive patent arms race, and companies’ consequent focus on quantity rather than quality as they build their portfolios, causes them and others many problems. This article in Intellectual Asset Magazine exposes the role that practicing companies themselves and their patenting practices have had in keeping patent quality low, the backlog long, and patent trolls well-stocked with patents. It discusses various methods for fostering patent peace including by outlawing certain types of "arms" (a software patent ban), making patents harder to obtain or hold onto (i.e. by increasing registration/maintenance fees), and making patents less nuclear (e.g. by introducing an independent …
Economics Of The Independent Invention Defense Under Incomplete Information, Murat C. Mungan
Economics Of The Independent Invention Defense Under Incomplete Information, Murat C. Mungan
Scholarly Publications
Patents lead to ex post deadweight loss arising from a noncompetitive market structure for the invention. Many have argued that introducing independent invention as a defense (IID) to patent infringement can increase social welfare by decreasing such deadweight loss at the price of a modest decrease in the number of inventions. This paper considers the effects of IID in a setting where R&D firms have incomplete information about their rivals. Four main results follow under incomplete information: (i) fewer things are invented under an IID regime; (ii) IID’s effects on welfare are ambiguous; (iii) IID is more likely to increase …
Accountability In Patenting Of Federally Funded Research, Arti K. Rai, Bhaven N. Sampat
Accountability In Patenting Of Federally Funded Research, Arti K. Rai, Bhaven N. Sampat
Faculty Scholarship
Bayh-Dole allows academic grantees to patent federally-funded research for purposes of promoting the commercialization of this research. To ensure commercialization goals are achieved, the Act requires grantees to report to funding agencies not only the existence of federally-funded patents but also utilization efforts they and their licensees/assignees are making.
Although reporting is a cornerstone of accountability under Bayh-Dole, information about grantee compliance with reporting requirements is incomplete and dated. In fact, the last significant study of the question dates back to the late 1990s and analyzes only 633 patents. Since that time, concerns have emerged that federally-funded university patents are …
Unlocking Health Canada’S Cache Of Trade Secrets: Mandatory Disclosure Of Clinical Trial Results, Matthew Herder
Unlocking Health Canada’S Cache Of Trade Secrets: Mandatory Disclosure Of Clinical Trial Results, Matthew Herder
Articles, Book Chapters, & Popular Press
Health Canada should publicly disclose information about the safety and efficacy of pharmaceuticals, biologics and medical devices, and should especially disclose the designs and results of clinical trials. This disclosure is necessary to preserve public trust, address weaknesses in the evidence base, and protect Canadians from harm.
A prime example of the need for this disclosure involves selective serotonin reuptake inhibitors (SSRIs). Health Canada did not authorize SSRIs for sale to people younger than 19 years because of data from clinical trials showing risks of harm, including self-harm, associated with use of SSRIs in that age group. But Health Canada …
Patent Law's Audience, Mark D. Janis, Timothy R. Holbrook
Patent Law's Audience, Mark D. Janis, Timothy R. Holbrook
Articles by Maurer Faculty
Many rules of patent law rest on a false premise about their target audience. Rules of patentability purport to provide subtle incentives to innovators. However, innovators typically encounter these rules only indirectly, through intermediaries such as lawyers, venture capitalists, managers, and others. Rules of patent scope strive to provide notice of the boundaries of the patent right to anyone whose activities might approach those boundaries, including, in theory, any member of the general public. But the rules of patent scope are practically incomprehensible to the general public. In this Article, we argue that rules of patent law should be designed …
Rand Patents And Exclusion Orders: Submission Of 19 Economics And Law Professors To The International Trade Commission, Arti K. Rai
Faculty Scholarship
In this comment to ITC Investigation 337-TA-745 (Certain Wireless Communication Devices, Motorola v. Apple) we, as teachers and scholars of economics, antitrust and intellectual property, remedies, administrative, and international intellectual property law, former Department of Justice lawyers and chief economists, a former executive official at the Patent and Trademark Office, a former counsel at the ITC Office of the General Counsel, and a former Member of the President’s Council of Economic Adviser take the position that ITC exclusion orders generally should not be granted under § 1337(d)(1) on the basis of patents subject to obligations to license on “reasonable and …
Use Patents, Carve-Outs, And Incentives — A New Battle In The Drug-Patent Wars, Arti K. Rai
Use Patents, Carve-Outs, And Incentives — A New Battle In The Drug-Patent Wars, Arti K. Rai
Faculty Scholarship
The Hatch-Waxman Act of 1984 aims to strike a balance between the innovation incentives provided by patents and the greater consumer access provided by low-cost generic drugs. The legislation, which relies in part on an explicit link between the FDA drug approval process and the U.S. patent system, has been controversial, particularly because of the ways in which firms producing brand-name drugs have exploited that link to delay market entry of generics as long as possible. Voluminous scholarship has focused on so-called "pay-for-delay" settlements of patent litigation between brand name and generic firms.
In contrast, this Perspective uses the lens …
Modifying Rand Commitments To Better Price Patents In The Standards Setting Context, Kyle Rozema
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 …
Taxing Facebook Code: Debugging The Tax Code And Software, Xuan-Thao Nguyen, Jeffrey A. Maine
Taxing Facebook Code: Debugging The Tax Code And Software, Xuan-Thao Nguyen, Jeffrey A. Maine
Articles
This article sets out to analyze both intellectual property laws and tax systems as applied to computer software. It analyzes software within intellectual property's established doctrinal framework, a difficult task due to the fact that software can encompass some combination of the traits of copyrights, trade dress, patents, and trade secrets. It then examines both the federal and state tax systems governing software. It shows that fitting software within current tax schemes presents unique challenges, as software contains both tangible and intangible elements, is subject to varying intellectual property protections, and can be delivered through various media. The article argues …
Antitrust And The Movement Of Technology, Herbert J. Hovenkamp
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 …
Tuning The Obviousness Inquiry After Ksr, Mark D. Janis
Tuning The Obviousness Inquiry After Ksr, Mark D. Janis
Articles by Maurer Faculty
One of the most important and delicate judicial tasks in patent law is to keep the obviousness doctrine in reasonable working order. There are several reasons why the obviousness doctrine has been the subject of frequent judicial tinkering. First, patentability doctrines interact with each other, so doctrinal alterations that seem to be entirely external to the obviousness doctrine frequently have ripple effects on obviousness. The interaction between the utility and obviousness doctrines provides one good example. Second, the obviousness doctrine is internally complex. Cases in the chemical and biotechnology areas over the past several decades have amply illustrated this point. …
Hired To Invent Vs. Works Made For Hire: Resolving The Inconsistency Among Rights Of Corporate Personhood, Authorship, And Inventorship, Sean M. O'Connor
Hired To Invent Vs. Works Made For Hire: Resolving The Inconsistency Among Rights Of Corporate Personhood, Authorship, And Inventorship, Sean M. O'Connor
Articles
This Essay focuses on the interrelation of three legal doctrines that affect the allocation of ownership and attribution of products of the human mind. The first, corporate personhood, grants corporations rights of personhood similar to those of natural persons. The second, the work-made-for-hire doctrine (WMFH) under copyright law, allocates ownership and attribution for copyrightable works to the employer of the natural-person author—even where that employer is a nonnatural, legal person such as a corporation. And the third, shop rights and the hired-to-invent exception, permits courts to grant equitable licenses or assignments to employers for their employees’ inventions.
These three doctrines …
Patent Litigation And The Internet, Samantha Zyontz, John R. Allison, Emerson H. Tiller, Tristan Bligh
Patent Litigation And The Internet, Samantha Zyontz, John R. Allison, Emerson H. Tiller, Tristan Bligh
Faculty Scholarship
Patent infringement litigation has not only increased dramatically in frequency over the past few decades,1 but also has also seen striking growth in both stakes and cost.2 Although a relatively rich literature has added much to our understanding of the nature, causes, and consequences of patent litigation during the past two decades,3 many interesting questions remain inadequately addressed. The nuances of and trends in patent litigation in different technology fields and industries, for example, are still understudied.4 Litigation of patents on new technologies has likewise received a dearth of attention. Here we seek to help begin …