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Full-Text Articles in Law

Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp Dec 2005

Ip And Antitrust Policy: A Brief Historical Overview, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

The history of IP/antitrust litigation is filled with exaggerated notions of the power conferred by IP rights and imagined threats to competition. The result is that antitrust litigation involving IP practices has seen problems where none existed. To be sure, finding the right balance between maintaining competition and creating incentives to innovate is no easy task. However, the judge in an IP/antitrust case almost never needs to do the balancing, most of which is done in the language of the IP provisions. The role of antitrust tribunals is the much more limited one of ensuring that any alleged ...


Unilateral Refusals To License In The U.S., Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley Jun 2005

Unilateral Refusals To License In The U.S., Herbert J. Hovenkamp, Mark D. Janis, Mark A. Lemley

Faculty Scholarship at Penn Law

Most antitrust claims relating to intellectual property involve challenges to agreements, licensing practices or affirmative conduct involving the use or disposition of the intellectual property rights or the products they cover. But sometimes an antitrust claim centers on an intellectual property owner's refusal to use or license an intellectual property right, perhaps coupled with efforts to enforce the intellectual property right against infringers. The allegation may be that the intellectual property right is so essential to competition that it must be licensed across the board, or that a refusal to license it to one particular party was discriminatory, or ...


Alice In Wonderland Meets The U.S. Patent System, Jay Dratler Jan 2005

Alice In Wonderland Meets The U.S. Patent System, Jay Dratler

Akron Law Publications

Among the joys of being a professor, as distinguished from practicing law, are the leisure and incentive to think and write about the big picture. Another joy is being able to say what you really think. We professors don't have to focus on attracting clients or maintaining an impression of studied understatement and moderation for judges and juries.

In this talk, I'm going to exercise both of these prerogatives. I've been thinking about the big picture in patents for over a quarter century, and I'm more worried than I've ever been.

Let me begin by ...


Do Patents Facilitate Financing In The Software Industry?, Ronald J. Mann Jan 2005

Do Patents Facilitate Financing In The Software Industry?, Ronald J. Mann

Faculty Scholarship

This Article is the first part of a wide study of the role of intellectual property in the software industry. Unlike previous papers that focus primarily on software patents – which generally are held by firms that are not software firms – this Article provides a thorough and contextually grounded description of the role that patents play in the software industry itself.

The bulk of the Article considers the pros and cons of patents in the software industry. The Article starts by emphasizing the difficulties that prerevenue startups face in obtaining any value from patents. Litigation to enforce patents is impractical for ...


Patents, Venture Capital, And Software Start-Ups, Ronald J. Mann, Thomas W. Sager Jan 2005

Patents, Venture Capital, And Software Start-Ups, Ronald J. Mann, Thomas W. Sager

Faculty Scholarship

This paper analyzes the relation between the patenting behavior of startup firms and the progress of those firms through the venture capital cycle. Linking data relating to venture capital financing of software startup firms with data concerning the patents obtained by those firms, we find significant and robust positive correlations between patenting and several variables measuring the firm's performance (including number of rounds, total investment, exit status, receipt of late stage financing, and longevity). The data also show that (1) only about one in four venture-backed software firms acquired even one patent during the period of the study; (2 ...


Do Patents Facilitate Financing In The Software Industry?, Ronald J. Mann Jan 2005

Do Patents Facilitate Financing In The Software Industry?, Ronald J. Mann

Faculty Scholarship

This paper is the first part of a wide-ranging study of the role of intellectual property in the software industry. Unlike previous papers that focus primarily on software patents – which generally are held by firms that are not software firms – this Article provides a thorough and contextually grounded description of the role that patents play in the software industry itself.

The bulk of the Article considers the pros and cons of patents in the software industry. The Article starts by emphasizing the difficulties that prerevenue startups face in obtaining any value from patents. Litigation to enforce patents is impractical for ...


The Commercialization Of Open Source Software: Do Property Rights Still Matter?, Ronald J. Mann Jan 2005

The Commercialization Of Open Source Software: Do Property Rights Still Matter?, Ronald J. Mann

Faculty Scholarship

A major shift toward open source software is underway as companies are more critically evaluating the cost effectiveness of their IT investments, seeing the benefits of collaborative development, and looking for ways to avoid vendor lock-in. At the same time, academics and industry visionaries are criticizing the use of a traditional appropriation mechanism for innovation – the patent – by bemoaning the decisions of U.S. and foreign governments to permit software patents, the rising numbers of patents on software-related innovations (the so-called arms race build-up), and the cost and frequency of patent litigation in the software industry. The critics generally have ...