Digital Commons Network^™

A Conversation On Judicial Decision-Making, Robin Feldman

Robin C Feldman

Both breathtakingly broad and minutely particular, the doctrine of patentable subject matter asks us to consider which innovations are of the type for which we might grant protection. Do we include living creatures, for example, or genes? Are computer algorithms included, and just what is an algorithm anyway? These are the types of questions that the Supreme Court has considered in a number of recent cases on patentable subject matter.

Looking closely at the recent cases, a fascinating conversation emerges between the Supreme Court and the Federal Circuit. It is a conversation not just about the nature of patents, but …

Plain Language Patents, Robin C. Feldman

Robin C Feldman

Law is a process of Bounded Adaptation. The law that exists at any given moment is constantly driven to adapt to changing circumstances within the framework of what has gone before. The boundaries of that framework are policed by the necessity of articulating an interpretation in a way that gains general acceptance. It is the need to effectively articulate a common logic that mitigates the distortion of personal perspective.

This process of Bounded Adaptation cannot proceed effectively without an adequately structured dialogue that will promote the flow of information and analysis. Nowhere is this dialogue more challenging than at the …

Open Source, Open Access, Open Transfer: Market Approaches To Research Bottlenecks, Robin C. Feldman

Robin C Feldman

One of the most hotly contested issues in the field of intellectual property law concerns the existence, or non-existence, of patent thickets and the extent to which any such bottlenecks may be interfering with research. For decades, scholars warned that problems related to the over proliferation of patent rights would interfere with innovation. In contrast, a growing body of commentary argues that patent thickets are not a problem in modern industries. Either patent thickets do not exist, or if they do, patent thickets do not interfere with the progress of research.

The rhetoric is particularly heated these days because of …

Law's Misguided Love Affair With Science, Robin Feldman

Robin C Feldman

The allure of science has always captivated members of the legal profession. Its siren’s song has followed us throughout much of American legal history. We look to science to rescue us from the experience of uncertainty and the discomfort of difficult legal decisions, and we are constantly disappointed.

The notion of what constitutes science and what it would take to make law more scientific varies across time. What does not vary is our constant return to the well. We are constantly seduced into believing that some new science will provide answers to law’s dilemmas, and we are constantly disappointed.

This …