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Articles 1 - 23 of 23
Full-Text Articles in Law
Diagnostic Patents At The Supreme Court, Arti K. Rai
Diagnostic Patents At The Supreme Court, Arti K. Rai
Faculty Scholarship
No abstract provided.
U.S. Executive Branch Patent Policy, Global And Domestic, Arti K. Rai
U.S. Executive Branch Patent Policy, Global And Domestic, Arti K. Rai
Faculty Scholarship
No abstract provided.
Completing The Energy Innovation Cycle: The View From The Public Utility Commission, Jonas J. Monast, Sarah K. Adair
Completing The Energy Innovation Cycle: The View From The Public Utility Commission, Jonas J. Monast, Sarah K. Adair
Faculty Scholarship
Achieving widespread adoption of innovative electricity generation technologies involves a complex system of research, development, demonstration, and deployment, with each phase then informing future developments. Despite a number of non-regulatory programs at the federal level to support this process, the innovation premium—the increased cost and technology risk often associated with innovative generation technologies—creates hurdles in the state public utility commission (“PUC”) process. These state level regulatory hurdles have the potential to frustrate federal energy goals and prevent the learning process that is a critical component to technology innovation. This Article explores how and why innovative energy technologies face challenges in …
Improving (Software) Patent Quality Through The Administrative Process, Arti K. Rai
Improving (Software) Patent Quality Through The Administrative Process, Arti K. Rai
Faculty Scholarship
The available evidence indicates that patent quality, particularly in the area of software, needs improvement. This Article argues that even an agency as institutionally constrained as the U.S. Patent and Trademark Office (“PTO”) could implement a portfolio of pragmatic, cost-effective quality improvement strategies. The argument in favor of these strategies draws upon not only legal theory and doctrine but also new data from a PTO software examination unit with relatively strict practices. Strategies that resolve around Section 112 of the patent statute could usefully be deployed at the initial examination stage. Other strategies could be deployed within the new post-issuance …
Biomedical Patents At The Supreme Court: A Path Forward, Arti K. Rai
Biomedical Patents At The Supreme Court: A Path Forward, Arti K. Rai
Faculty Scholarship
Although most would argue that software patents pose a bigger challenge, the U.S. Supreme Court has recently focused on biomedical patents. Two of the Court's recent decisions scaling back such patents, Mayo v. Prometheus and AMP v. Myriad, have provoked justifiable anxiety for those concerned about biomedical innovation, particularly in the area of personalized medicine. While acknowledging significant limitations in the Court's reasoning in both cases, this Essay sketches a reading that is consistent with the results and innovation-friendly.
Valuing Health Care: Improving Productivity And Quality, Barak D. Richman, Arti K. Rai
Valuing Health Care: Improving Productivity And Quality, Barak D. Richman, Arti K. Rai
Faculty Scholarship
No abstract provided.
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 …
Overcoming The Impasse On Intellectual Property And Climate Change At The Unfccc: A Way Forward, Jerome H. Reichman, Ahmed Abdel Latif, Keith Maskus, Ruth Okediji, Pedro Roffe
Overcoming The Impasse On Intellectual Property And Climate Change At The Unfccc: A Way Forward, Jerome H. Reichman, Ahmed Abdel Latif, Keith Maskus, Ruth Okediji, Pedro Roffe
Faculty Scholarship
The global spotlight is once again focused on the challenges of climate change with the annual United Nations Framework Convention on Climate Change (UNFCCC) Conference of the Parties kicking off this week (November 28th–December 7th) in Durban, South Africa. With the international community looking to Durban for results, an important opportunity exists to address one of the most contentious – and misunderstood – issues in the climate change debate: the role of intellectual property rights in the production of and access to mitigation and adaptation technologies. The rapid development and diffusion of these technologies is a key component of the …
How Trade Secrecy Law Generates A Natural Semicommons Of Innovative Know-How, Jerome H. Reichman
How Trade Secrecy Law Generates A Natural Semicommons Of Innovative Know-How, Jerome H. Reichman
Faculty Scholarship
No abstract provided.
Compulsory Licensing Of Patented Pharmaceutical Inventions: Evaluating The Options, Jerome H. Reichman
Compulsory Licensing Of Patented Pharmaceutical Inventions: Evaluating The Options, Jerome H. Reichman
Faculty Scholarship
In this Comment, the author traces the relevant legislative history pertaining to compulsory licensing of patented pharmaceuticals from the TRIPS Agreement of 1994 to the 2003 waiver to, and later proposed amendment of, article 31, which enables poor countries to obtain needed medicines from other countries that possess manufacturing capacity. The Comment then evaluates recent, controversial uses of the relevant legislative machinery as viewed from different critical perspectives. The Comment shows how developing countries seeking access to esential medicines can collaborate in ways that would avoid undermining incentives to innovation and other social costs attributed to compulsory licensing. It ends …
University Software Ownership And Litigation: A First Examination, Arti K. Rai, John R. Allison, Bhaven N. Sampat, Colin Crossman
University Software Ownership And Litigation: A First Examination, Arti K. Rai, John R. Allison, Bhaven N. Sampat, Colin Crossman
Faculty Scholarship
Software patents and university-owned patents represent two of the most controversial intellectual property developments of the last twenty-five years. Despite this reality, and concerns that universities act as "patent trolls" when they assert software patents in litigation against successful commercializers, no scholar has systematically examined the ownership and litigation of university software patents. In this Article, we present the first such examination. Our empirical research reveals that software patents represent a significant and growing proportion of university patent holdings. Additionally, the most important determinant of the number of software patents a university owns is not its research and development ("R&D") …
Intellectual Property In The Twenty-First Century: Will The Developing Countries Lead Or Follow?, Jerome H. Reichman
Intellectual Property In The Twenty-First Century: Will The Developing Countries Lead Or Follow?, Jerome H. Reichman
Faculty Scholarship
This article continues the author's contributions on the subject of intellectual property protection in developing countries, and focuses on how those developing countries with growing technological prowess should accommodate their own national systems of innovation to the worldwide intellectual property regime emerging in the post-TRIPS period, with a view to maximizing global economic welfare in the foreseeable future.
Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach, Jerome H. Reichman
Rethinking The Role Of Clinical Trial Data In International Intellectual Property Law: The Case For A Public Goods Approach, Jerome H. Reichman
Faculty Scholarship
This article is a later version of the author's presentation at the Eleventh Annual Honorable Helen Wilson Nies Memorial Lecture March 26, 2008. Clinical trials are currently used to test drugs; however, the risk and cost of clinical trials are increasing so drastically that the clinical trials may become unsustainable. This article evaluates the legal and economic trends of intellectual property protection for pharmaceutical clinical trial data. The protection of clinical trials has become an alternative to patents as market exclusivity encourages the development and testing of unpatentable pharmaceuticals. This author argues that clinical trials should be treated as a …
Structuring U.S. Innovation Policy: Creating A White House Office Of Innovation Policy, Stuart M. Benjamin, Arti K. Rai
Structuring U.S. Innovation Policy: Creating A White House Office Of Innovation Policy, Stuart M. Benjamin, Arti K. Rai
Faculty Scholarship
This article begins with a discussion of innovation’s importance to the future well-being of American society. The authors then discuss limitations of the current federal framework for making innovation policy. Specifically, the relative absence of innovation from the agenda of Congress and many relevant federal agencies manifests the confluence of two regulatory challenges: first, the tendency of political actors to focus on short-term goals and consequences; and second, political actors’ reluctance to threaten powerful incumbent actors. Courts, meanwhile, lack sufficient expertise and the ability to conduct the type of forward-looking policy planning that should be a hallmark of innovation policy. …
Is Bayh-Dole Good For Developing Countries?: Lessons From The Us Experience, Arti K. Rai, Jerome H. Reichman, Robert Weissman, Amy Kapczynski, Robert Cook-Deegan, Bhaven N. Sampat, Anthony D. So
Is Bayh-Dole Good For Developing Countries?: Lessons From The Us Experience, Arti K. Rai, Jerome H. Reichman, Robert Weissman, Amy Kapczynski, Robert Cook-Deegan, Bhaven N. Sampat, Anthony D. So
Faculty Scholarship
Recently, countries from China and Brazil to Malaysia and South Africa have passed laws promoting the patenting of publicly funded research, and a similar proposal is under legislative consideration in India. These initiatives are modeled in part on the United States Bayh-Dole Act of 1980. Bayh-Dole (BD) encouraged American universities to acquire patents on inventions resulting from government-funded research and to issue exclusive licenses to private firms, on the assumption that exclusive licensing creates incentives to commercialize these inventions. A broader hope of BD, and the initiatives emulating it, was that patenting and licensing of public sector research would spur …
Pathways Across The Valley Of Death: Novel Intellectual Property Strategies For Accelerated Drug Discovery, Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir, Colin Crossman
Pathways Across The Valley Of Death: Novel Intellectual Property Strategies For Accelerated Drug Discovery, Arti K. Rai, Jerome H. Reichman, Paul F. Uhlir, Colin Crossman
Faculty Scholarship
Drug discovery is stagnating. Government agencies, industry analysts, and industry scientists have all noted that, despite significant increases in pharmaceutical R&D funding, the production of fundamentally new drugs - particularly drugs that work on new biological pathways and proteins - remains disappointingly low. To some extent, pharmaceutical firms are already embracing the prescription of new, more collaborative R&D organizational models suggested by industry analysts. In this Article, we build on collaborative strategies that firms are already employing by proposing a novel public-private collaboration that would help move upstream academic research across the valley of death that separates upstream research from …
The Public Domain: Enclosing The Commons Of The Mind, James Boyle
The Public Domain: Enclosing The Commons Of The Mind, James Boyle
Faculty Scholarship
Our music, our culture, our science and our economic welfare all depend on a delicate balance between those ideas that are controlled and those that are free, between intellectual property and the public domain. In his award-winning book, The Public Domain: Enclosing the Commons of the Mind (Yale University Press) James Boyle introduces readers to the idea of the public domain and describes how it is being tragically eroded by our current copyright, patent, and trademark laws. In a series of fascinating case studies, Boyle explains why gene sequences, basic business ideas and pairs of musical notes are now owned, …
Churn, Baby, Churn: Strategic Dynamics Among Dominant And Fringe Firms In A Segmented Industry, John M. De Figueiredo, Brian S. Silverman
Churn, Baby, Churn: Strategic Dynamics Among Dominant And Fringe Firms In A Segmented Industry, John M. De Figueiredo, Brian S. Silverman
Faculty Scholarship
This paper integrates and extends the literatures on industry evolution and dominant firms to develop a dynamic theory of dominant and fringe competitive interaction in a segmented industry. It argues that a dominant firm, seeing contraction of growth in its current segment(s), enters new segments in which it can exploit its technological strengths, but that are sufficiently distant to avoid cannibalization. The dominant firm acts as a low-cost Stackelberg leader, driving down prices and triggering a sales takeoff in the new segment. We identify a “churn” effect associated with dominant firm entry: fringe firms that precede the dominant firm into …
“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
“An Ingenious Man Enabled By Contract”: Entrepreneurship And The Rise Of Contract, Catherine Fisk
Faculty Scholarship
A legal ideology emerged in the 1870s that celebrated contract as the body of law with the particular purpose of facilitating the formation of productive exchanges that would enrich the parties to the contract and, therefore, society as a whole. Across the spectrum of intellectual property, courts used the legal fiction of implied contract, and a version of it particularly emphasizing liberty of contract, to shift control of workplace knowledge from skilled employees to firms while suggesting that the emergence of hierarchical control and loss of entrepreneurial opportunity for creative workers was consistent with the free labor ideology that dominated …
Using Liability Rules To Stimulate Local Innovation In Developing Countries: Application To Traditional Knowledge, Jerome H. Reichman, Tracey Lewis
Using Liability Rules To Stimulate Local Innovation In Developing Countries: Application To Traditional Knowledge, Jerome H. Reichman, Tracey Lewis
Faculty Scholarship
When economists speak of an underlying legal structure that imposes an "absolute permission" requirement on access to, and use of, knowledge goods protected by intellectual property rights (IPRs), they typically have in mind the domestic patent and copyright laws. Under these and related intellectual property regimes, one cannot normally make use of a protected invention or creative work of authorship for specified purposes and for limited periods of time without prior authorization of the rights holder, typically in the form of a license.
When economists speak of liability rules, in contrast, they envision an underlying legal structure that permits third …
The Globalization Of Private Knowledge Goods And The Privatization Of Global Public Goods, Jerome H. Reichman, Keith H. Maskus
The Globalization Of Private Knowledge Goods And The Privatization Of Global Public Goods, Jerome H. Reichman, Keith H. Maskus
Faculty Scholarship
Global trade and investment have become increasingly liberalized in recent decades. This liberalization has lately been accompanied by substantive new requirements for strong minimum standards of intellectual property (IP) protection, which moves the world economy toward harmonized private rights in knowledge goods. While this trend may have beneficial impacts in terms of innovation and technology diffusion, such impacts would not be evenly distributed across countries. Deep questions also arise about whether such globalization of rights to information will raise roadblocks to the national and international provision of such public goods as environmental protection, public health, education, and scientific advance. This …
Fencing Off Ideas: Enclosure & The Disappearance Of The Public Domain, James Boyle
Fencing Off Ideas: Enclosure & The Disappearance Of The Public Domain, James Boyle
Faculty Scholarship
No abstract provided.
Cruel, Mean, Or Lavish? Economic Analysis, Price Discrimination And Digital Intellectual Property, James Boyle
Cruel, Mean, Or Lavish? Economic Analysis, Price Discrimination And Digital Intellectual Property, James Boyle
Faculty Scholarship
No abstract provided.