Business Commons^™

Nowhere To Run To, Nowhere To Hide, Praveen Kosuri, Lynnise Pantin

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As the COVID-19 global pandemic ravaged the United States, exacerbating the country’s existing racial disparities, Black and brown small business owners navigated unprecedented obstacles to stay afloat. Adding even more hardship and challenges, the United States also engaged in a nationwide racial reckoning in the wake of the murder of George Floyd resulting in wide-scale protests in the same neighborhoods that initially saw a disproportionate impact of COVID-19 and harming many of the same Black and brown business owners. These business owners had to operate in an environment in which they experienced recurring trauma, mental anguish and uncertainty, along with …

Reviewing Inter Partes Review Five Years In: The View From University Technology Transfer Offices, Cynthia L. Dahl

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With the implementation of the inter partes review (IPR) proceeding under the America Invents Act in 2012, university technology transfer offices (TTOS) were worried that the value of their patents might be irreparably harmed. With IPR proceedings making patent challenges easy, relatively inexpensive, and a threat extending over the lifetime of a patent, TTOs wondered if IPRs might do nothing short of undermining their licensing business model.

However, although IPRs have irreparably changed the patent infringement landscape outside of the university setting, the effect on university patents has not been nearly as severe. This chapter explores why that might be …

Coin-Operated Capitalism, Shaanan Cohney, David A. Hoffman, Jeremy Sklaroff, David A. Wishnick

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This Article presents the legal literature’s first detailed analysis of the inner workings of Initial Coin Offerings. We characterize the ICO as an example of financial innovation, placing it in kinship with venture capital contracting, asset securitization, and (obviously) the IPO. We also take the form seriously as an example of technological innovation, where promoters are beginning to effectuate their promises to investors through computer code, rather than traditional contract. To understand the dynamics of this shift, we first collect contracts, “white papers,” and other contract-like documents for the fifty top-grossing ICOs of 2017. We then analyze how such projects’ …

Intellectual Property: Ownership And Protection In A University Setting, Cynthia L. Dahl

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Before an academic entrepreneur may protect or commercialize an invention, they must understand if they own the rights to it. This short chapter helps the inventor to consider the various scenarios that occur in a university setting. It advises the inventor how to seek a waiver from the university if they believe they are the true owner of the invention. If the facts indicate that the invention should be owned by the university, the chapter also discusses how a university decides to formally protect the invention through patent or copyright. Finally, the chapter advises the inventor how to stay involved …

Intellectual Property: Commercializing In A University Setting, Cynthia L. Dahl

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If an academic entrepreneur wants to commercialize their invention, they must first clarify who owns the invention, and then decide on the best commercialization possibility. This short chapter describes the various scenarios that might occur in a university setting. In most cases, a university will own the invention created by its researchers and faculty because of their employment. A university may then either license out the entrepreneur’s invention to a third-party company to further develop and commercialize, or may license the invention back to the entrepreneur so that they may commercialize it themselves through a start-up. Such license agreements will …

Intellectual Property And Competition, Herbert J. Hovenkamp

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A legal system that relies on private property rights to promote economic development must consider that profits can come from two different sources. First, both competition under constant technology and innovation promote economic growth by granting many of the returns to the successful developer. Competition and innovation both increase output, whether measured by quantity or quality. Second, however, profits can come from practices that reduce output, in some cases by reducing quantity, or in others by reducing innovation.

IP rights and competition policy were traditionally regarded as in conflict. IP rights create monopoly, which was thought to be inimical to …

Relational Contracts Of Adhesion, David A. Hoffman

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Not all digital fine print exculpates liability: some exhorts users to perform before the consumer relationship has soured. We promise to choose strong passwords (and hold them private); to behave civilly on social networks; to refrain from streaming shows and sports; and to avoid reverse-engineering code (or, worse, deploying deadly bots). In short: consumers are apparently regulated by digital fine print, though it’s universally assumed we don’t read it, and even if we did, we’ll never be sued for failing to perform.

On reflection, this ordinary phenomenon is perplexing. Why would firms persist in deploying uncommunicative behavioral spurs? The conventional …

Reasonable Patent Exhaustion, Herbert J. Hovenkamp

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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 Pools And Related Technology Sharing, Erik Hovenkamp, Herbert J. Hovenkamp

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A patent "pool" is an arrangement under which patent holders in a common technology commit their patents to a single holder, who then licenses them out to the original patentees and perhaps also to outsiders. The payoffs include both revenue earned as a licensor, and technology acquired by pool members as licensees. Public effects can also be significant. For example, technology sharing of complementary patents can improve product quality and variety. In some information technology markets pools can prevent patents from becoming a costly obstacle to innovation by clearing channels of technology transfer. By contrast, a pool's aggregate output reduction …

Solving Ethical Puzzles To Unlock University Technology Transfer Client Work For An Intellectual Property Legal Clinic, Cynthia L. Dahl

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Intellectual property (IP) and technology legal clinics are experiencing an unprecedented surge in popularity. Before 2000 there were only five such clinics, but by 2016 there were seventy-four, with fifty added since 2010 alone. As law schools are approving new IP clinics and as practitioners are developing syllabi, there is an increasing need to share knowledge about models that work and how to avoid pitfalls.

One potentially fertile – but traditionally underutilized -- source of client work for an IP and technology clinic is the university technology transfer office (“TTO”), the department that protects, markets, and licenses all university intellectual …

Antitrust And Information Technologies, Herbert J. Hovenkamp

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Technological change strongly affects the use of information to facilitate anticompetitive practices. The effects result mainly from digitization and the many products and processes that it enables. These technologies of information also account for a significant portion of the difficulties that antitrust law encounters when its addresses intellectual property rights. In addition, changes in the technologies of information affect the structures of certain products, in the process either increasing or decreasing the potential for competitive harm.

For example, digital technology affects the way firms exercise market power, but it also imposes serious measurement difficulties. The digital revolution has occurred in …

Antitrust And The Patent System: A Reexamination, Herbert J. Hovenkamp

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Since the federal antitrust laws were first passed they have cycled through extreme positions on the relationship between competition law and the patent system. Previous studies of antitrust and patents have generally assumed that patents are valid, discrete, and generally of high quality in the sense that they further innovation. As a result, increasing the returns to patenting increases the incentive to do socially valuable innovation. Further, if the returns to the patentee exceed the social losses caused by increased exclusion, the tradeoff is positive and antitrust should not interfere. If a patent does nothing to further innovation, however, then …

The Rule Of Reason And The Scope Of The Patent, Herbert J. Hovenkamp

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For a century and a half the Supreme Court has described perceived patent abuses as conduct that reaches "beyond the scope of the patent." That phrase, which evokes an image of boundary lines in real property, has been applied to both government and private activity and has many different meanings. It has been used offensively to conclude that certain patent uses are unlawful because they extend beyond the scope of the patent. It is also used defensively to characterize activities as lawful if they do not extend beyond the patent's scope. In the first half of the twentieth century the …

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

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The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.

As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply, serve to …

Anticompetitive Patent Settlements And The Supreme Court's Actavis Decision, Herbert J. Hovenkamp

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In FTC v. Actavis the Supreme Court held that settlement of a patent infringement suit in which the patentee of a branded pharmaceutical drug pays a generic infringer to stay out of the market may be illegal under the antitrust laws. Justice Breyer's majority opinion was surprisingly broad, in two critical senses. First, he spoke with a generality that reached far beyond the pharmaceutical generic drug disputes that have provoked numerous pay-for-delay settlements.

Second was the aggressive approach that the Court chose. The obvious alternatives were the rule that prevailed in most Circuits, that any settlement is immune from antitrust …

Activating Actavis, Aaron Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

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In Federal Trade Commission v. Actavis, Inc., the Supreme Court provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. The Court came down strongly in favor of an antitrust solution to the problem, concluding that “an antitrust action is likely to prove more feasible administratively than the Eleventh Circuit believed.” At the same time, Justice Breyer’s majority opinion acknowledged that the Court did not answer every relevant question. The opinion closed by “leav[ing] to the lower courts the structuring of the present rule-of-reason antitrust litigation.”

This article is an effort to help courts and …

Competition In Information Technologies: Standards-Essential Patents, Non-Practicing Entities And Frand Bidding, Herbert J. Hovenkamp

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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 …

“Impact” In 3d—Maximizing Impact Through Transactional Clinics, Praveen Kosuri

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In speaking about “impact” clinical legal education, it is almost always exclusively as litigation—innocence projects, representing Guantanamo detainees, human rights concerns, environmental issues. Though these clinical efforts target different societal ills, all try to use the legal system as a catalyst for change. Rarely do clinicians invoke the word “impact” in the same manner in discussing transactional legal work much less transactional clinics. Yet transactional clinics can and do perform impact work. This article describes the current landscape of transactional clinics, the distinct evolution of community economic development clinics from small business and organizations clinics and argues that both can …

The New Economics Of Jurisdictional Competition: Devolutionary Federalism In A Second-Best World, William W. Bratton, Joseph A. Mccahery

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No abstract provided.

"An Honest Living": Street Vendors, Municipal Regulation, And The Black Public Sphere, Regina Austin

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No abstract provided.