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Removing The Troll From The Thicket: The Case For Enhancing Patent Maintenance Fees In Relation To The Size Of A Patent Owner's Patent Portfolio, David S. Olson Apr 2017

Removing The Troll From The Thicket: The Case For Enhancing Patent Maintenance Fees In Relation To The Size Of A Patent Owner's Patent Portfolio, David S. Olson

David S. Olson

This Article proposes a novel solution to part of the problem that large patent portfolios can cause. Both so-called "patent trolls" and firms that commercialize the patents that they own can accumulate and then abuse large patent portfolios, even if most of the patents in the portfolio are of little value. Instead of suggesting reforms to better determine the value and boundaries of individual patents, as many others have already done, this Article proposes that the U.S. Patent and Trademark Office (PTO) multiply the amount owed to keep a patent in force (patent maintenance fees) based on the size of …


Foreword, David Olson Aug 2015

Foreword, David Olson

David S. Olson

No abstract provided.


On Npes, Holdups, And Underlying Faults In The Patent System, David S. Olson Dec 2013

On Npes, Holdups, And Underlying Faults In The Patent System, David S. Olson

David S. Olson

This piece offers commentary on two essays in the current volume of the Cornell Law Review: James Bessen and Michael J. Meurer’s The Direct Costs from NPE Disputes and David L. Schwartz and Jay P. Kesan’s Analyzing the Role of Non-Practicing Entities in the Patent System. Schwartz and Kesan’s essay critiques Bessen and Meurer and offers some further thoughts on the role of empirical work regarding non-practicing entities (NPEs). Before I begin my substantive comments on the two pieces, I must say that these two essays, which engage each other fulsomely, carefully, and respectfully, are models of how academic debate …


On Npes, Holdups, And Underlying Faults In The Patent System, David S. Olson Dec 2013

On Npes, Holdups, And Underlying Faults In The Patent System, David S. Olson

David S. Olson

This piece offers commentary on two essays in the current volume of the Cornell Law Review: James Bessen and Michael J. Meurer’s The Direct Costs from NPE Disputes and David L. Schwartz and Jay P. Kesan’s Analyzing the Role of Non-Practicing Entities in the Patent System. Schwartz and Kesan’s essay critiques Bessen and Meurer and offers some further thoughts on the role of empirical work regarding non-practicing entities (NPEs). Before I begin my substantive comments on the two pieces, I must say that these two essays, which engage each other fulsomely, carefully, and respectfully, are models of how academic debate …


On Npes, Holdups, And Underlying Faults In The Patent System, David S. Olson Dec 2013

On Npes, Holdups, And Underlying Faults In The Patent System, David S. Olson

David S. Olson

This piece offers commentary on two essays in the current volume of the Cornell Law Review: James Bessen and Michael J. Meurer’s The Direct Costs from NPE Disputes and David L. Schwartz and Jay P. Kesan’s Analyzing the Role of Non-Practicing Entities in the Patent System. Schwartz and Kesan’s essay critiques Bessen and Meurer and offers some further thoughts on the role of empirical work regarding non-practicing entities (NPEs). Before I begin my substantive comments on the two pieces, I must say that these two essays, which engage each other fulsomely, carefully, and respectfully, are models of how academic debate …


On Npes, Holdups, And Underlying Faults In The Patent System, David S. Olson Dec 2013

On Npes, Holdups, And Underlying Faults In The Patent System, David S. Olson

David S. Olson

This piece offers commentary on two essays in the current volume of the Cornell Law Review: James Bessen and Michael J. Meurer’s The Direct Costs from NPE Disputes and David L. Schwartz and Jay P. Kesan’s Analyzing the Role of Non-Practicing Entities in the Patent System. Schwartz and Kesan’s essay critiques Bessen and Meurer and offers some further thoughts on the role of empirical work regarding non-practicing entities (NPEs). Before I begin my substantive comments on the two pieces, I must say that these two essays, which engage each other fulsomely, carefully, and respectfully, are models of how academic debate …


Rules Versus Standards: Competing Notions Of Inconsistency Robustness In Patent Law, David S. Olson, Stefania Fusco May 2012

Rules Versus Standards: Competing Notions Of Inconsistency Robustness In Patent Law, David S. Olson, Stefania Fusco

David S. Olson

This Article applies a new paradigm from the field of computer science—inconsistency robustness (IR)—in order to analyze the competing ways in which the Supreme Court and Federal Circuit craft patent law standards and rules. The IR paradigm is a shift from the previous paradigm of inconsistency elimination. The new IR paradigm recognizes that modern, complex information systems must perform notwithstanding persistent and continuous inconsistencies. The focus on IR encourages system designers to recognize the reality of persistent inconsistency when building robust systems that can perform reliably. Legal systems regularly process a great deal of complexity and inconsistency, and thus, by …


First Amendment Interests And Copyright Accommodations, David S. Olson Oct 2011

First Amendment Interests And Copyright Accommodations, David S. Olson

David S. Olson

Copyright law exists to encourage the creation of works of authorship by granting exclusive rights. But copyright’s incentive function seems in tension with the public’s First Amendment interests to use and freely hear copyrighted speech. Conventional wisdom holds, however, that copyright law serves to encourage much more speech than it discourages, and resolves First Amendment concerns with protections internal to copyright law like the fair use defense and the idea/expression dichotomy. This Article argues that the conventional wisdom no longer holds given the unprecedented expansion of copyright’s scope and cor-responding drastic diminution of the public domain in the last three …


First Amendment Based Copyright Misuse, David S. Olson Oct 2011

First Amendment Based Copyright Misuse, David S. Olson

David S. Olson

We are at a crossroads with respect to the underdeveloped equitable defense of copyright misuse. The defense may go the way of its sibling, antitrust-based patent misuse, which seems to be in a state of inevitable decline. Or—if judges accept the proposal of this Article—courts could reinvigorate the copyright misuse defense to better protect First Amendment speech that is guaranteed by statute, but that is often chilled by copyright holders misusing their copyrights to control others’ speech. The Copyright Act serves First Amendment interests by encouraging authors to create works. But copyright law can also discourage the creation of new …


A Legitimate Interest In Promoting The Progress Of Science: Constitutional Constraints On Copyright Laws, David S. Olson Oct 2011

A Legitimate Interest In Promoting The Progress Of Science: Constitutional Constraints On Copyright Laws, David S. Olson

David S. Olson

The Supreme Court certified two questions in Golan v. Holder: (1) Does section 514 of the Uruguay Round Agreements Act (“URAA”) violate the Progress Clause of the Constitution? (2) Does the URAA violate the First Amendment? This Essay argues that section 514 violates the Progress Clause’s requirement that copyright laws “promote the Progress of Science.” This is because the statute bequeaths copyright status without in return achieving any net increase in the creation or dissemination of creative works. Even if the Government relies on other constitutional authorities to justify section 514—such as the Commerce Clause or the Treaty Power—the limitations …


First Amendment Interests And Copyright Accomodations, David S. Olson Oct 2011

First Amendment Interests And Copyright Accomodations, David S. Olson

David S. Olson

Copyright law exists to encourage the creation of works of authorship by granting exclusive rights. But copyright’s incentive function seems in tension with the public’s First Amendment interests to use and freely hear copyrighted speech. Conventional wisdom holds, however, that copyright law serves to encourage much more speech than it discourages, and resolves First Amendment concerns with protections internal to copyright law like the fair use defense and the idea/expression dichotomy. This Article argues that the conventional wisdom no longer holds given the unprecedented expansion of copyright’s scope and corresponding drastic diminution of the public domain in the last three …