Law Commons^™

Federalist Society’S Intellectual Property Practice Group And Its Stanford Law School Present A Debate On Open Source And Intellectual Property Rights, Lawrence Lessig, F. Scott Kieff, G. Marcus Cole

University of Massachusetts Law Review

Transcript of the Federalist Society’s Intellectual Property Practice Group and its Stanford Law School Chapter debate on Open Source and Intellectual Property Rights with panelists Professor Lawrence Lessig from Stanford University and Professor F. Scott Kieff from Stanford University and moderated by Professor G. Marcus Cole from Stanford Law School. This debate took place on Wednesday, March 30, 2005 in Palo Alto, California.

Promoting Progress: A Qualitative Analysis Of Creative And Innovative Production, Jessica Silbey

Faculty Scholarship

This chapter is based on data collected as part of a larger qualitative empirical study based on face-to-face interviews with artists, scientists, engineers, their lawyers, agents and business partners. Broadly, the project involves the collecting and analysis of these interviews to understand how and why the interviewees create and innovate and to make sense of the intersection between intellectual property law and creative and innovative activity from the ground up. This chapter specifically investigates the concept of “progress” as discussed in the interviews. “Promoting progress” is the ostensible goal of the intellectual property protection in the United States, but what …

The Internet Of Things And Wearable Technology: Addressing Privacy And Security Concerns Without Derailing Innovation, Adam D. Thierer

Adam Thierer

This paper highlights some of the opportunities presented by the rise of the so-called “Internet of Things” and wearable technology in particular, and encourages policymakers to allow these technologies to develop in a relatively unabated fashion. As with other new and highly disruptive digital technologies, however, the Internet of Things and wearable tech will challenge existing social, economic, and legal norms. In particular, these technologies raise a variety of privacy and safety concerns. Other technical barriers exist that could hold back IoT and wearable tech — including disputes over technical standards, system interoperability, and access to adequate spectrum to facilitate …

Teece's Competing Through Innovation, Herbert J. Hovenkamp

All Faculty Scholarship

This essay reviews David J. Teece's book, Competing Through Innovation: Technological Strategies and Antitrust Policies (2013).

The Indie Lawyer Of The Future: How New Technology, Cultural Trends, And Market Forces Can Transform The Solo Practice Of Law, Lucille Jewel

Scholarly Works

This article is about individual lawyers innovating in the practice of law. New technology, cultural trends, and market forces have the potential to awaken latent markets for one-to-one legal services grounded in the sharing economy, the commons, DIY businesses, and other similar endeavors. These forces might reshape the solo practice of law, which in turn might induce structural change in the legal system itself. Despite the mass commoditization of many law products, there is a potentially new market for craft-oriented lawyers who directly connect with clients.

When we connect the sharing economy and the cultural values that support it with …

Bad Company! The Assumptions Behind Proxy Advisors' Voting Recommendations, Bryce C. Tingle

Dalhousie Law Journal

The corporate governance challenge for Canada is to improve the quality of its corporate performance, which has been declining relative to its international peers for decades. This is quite different from the usual assumption that corporate governance is primarily a matter of controlling managerial self-dealing. While important, board monitoring of management is only one aspect of its role in a corporation; research suggests corporate governance arrangements have a significant impact on corporate outcomes, particularly in areas such as innovation where Canada lags. Third-party proxy advisory firms, which provide advice to institutional investors in Canada on corporate governance matters, have grown …

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

All Faculty Scholarship

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 …

'Sophisticated Robots': Balancing Liability, Regulation, And Innovation, F. Patrick Hubbard

Faculty Publications

Our lives are being transformed by large mobile “sophisticated robots” with increasingly higher levels of autonomy, intelligence, and interconnectivity among themselves. For example, driverless automobiles are likely to become commercially available within a decade. Many people who suffer physical injuries from these robots will seek legal redress for their injury, and regulatory schemes are likely to impose requirements to reduce the number and severity of injuries.

This Article addresses the issue of whether the current liability and regulatory systems provide a fair, efficient method for balancing the concern for physical safety against the need to incentivize the innovation necessary to …

The End Of (Meta) Search Engines In Europe?, Martin Husovec

Chicago-Kent Journal of Intellectual Property

No abstract provided.

The Debilitating Effect Of Exclusive Rights: Patents And Productive Inefficiency, William Hubbard

All Faculty Scholarship

Are we underestimating the costs of patent protection? Scholars have long recognized that patent law is a double-edged sword. While patents promote innovation, they also limit the number of people who can benefit from new inventions. In the past, policy makers striving to balance the costs and benefits of patents have analyzed patent law through the lens of traditional, neoclassical economics. This Article argues that this approach is fundamentally flawed because traditional economics rely on an inaccurate oversimplification: that individuals and firms always maximize profits. In actuality, so-called "productive inefficiencies" often prevent profit maximization. For example, cognitive biases, bounded rationality, …

Schools Of Innovation, Sarah C. Mckenzie, Gary W. Ritter

Policy Briefs

Act 601, passed in April 2013, allows for schools to apply to become “schools of innovation.” Accepted schools receive flexibility from certain regulations in order to facilitate the use of innovative approaches to teaching and learning. In this policy brief, we discuss the history of Act 601, similar models in other states and their results, the application and approval process, the 2014-15 schools of innovation, and the role of the Office of Innovation for Education in supporting schools of innovation.

Screening Out Innovation: The Merits Of Meritless Litigation, Alexander A. Reinert

Indiana Law Journal

Courts and legislatures often conflate meritless and frivolous cases when balancing the desire to keep courthouse doors open to novel or unlikely claims against the concern that entertaining ultimately unsuccessful litigation will prove too costly for courts and defendants. Recently, significant procedural and substantive barriers to civil litigation have been informed by judicial and legislative assumptions about the costs of entertaining meritless and frivolous litigation. The prevailing wisdom is that eliminating meritless and frivolous claims as early in a case’s trajectory as possible will focus scarce resources on the truly meritorious cases, thereby ensuring that available remedies are properly distributed …

The Anti-Competitive Music Industry And The Case For Compulsory Licensing In The Digital Distribution Of Music, Ankur Srivastava

Touro Law Review

No abstract provided.

U.S. Vs. European Broadband Deployment: What Do The Data Say?, Christopher S. Yoo

All Faculty Scholarship

As the Internet becomes more important to the everyday lives of people around the world, commentators have tried to identify the best policies increasing the deployment and adoption of high-speed broadband technologies. Some claim that the European model of service-based competition, induced by telephone-style regulation, has outperformed the facilities-based competition underlying the US approach to promoting broadband deployment. The mapping studies conducted by the US and the EU for 2011 and 2012 reveal that the US led the EU in many broadband metrics.

• High-Speed Access: A far greater percentage of US households had access to Next Generation Access (NGA) …

Tesla And The Car Dealers' Lobby, Daniel A. Crane

Articles

Tesla Motors, the offspring of entrepreneur Elon Musk (who brought us Pay-Pal and SpaceX), is the most exciting automotive development in many decades and a marquee story of American technological dynamism and innovation. The company’s luxury electric cars have caused a sensation in the auto industry, including a review by Consumer Reports calling Tesla’s Model S the best car it ever tested. Despite the acclaim, Tesla faces enormous challenges Despite the acclaim, Tesla faces enormous challenges in penetrating an automotive market that has been dominated for a century by internal combustion engines. Not only must it build cars that customers …

Analytical Framework For Examining The Value Of Antibacterial Products, Kevin Outterson, Aylin Sertkaya, John T. Eyraud, Anna Birkenback, Calvin Franz, Nyssa Ackerley, Valerie Overton

Faculty Scholarship

Antibacterial resistance is a growing global problem. According to the most recent statistics from the Centers for Disease Control and Prevention (CDC), at least 2 million people acquire serious infections with bacteria that are resistant to one or more of antibacterial drugs designed to treat those infections in the United States alone. Of these, approximately 23,000 die as a result of drug-resistant infections. Even though estimates vary widely, the economic cost of antibacterial resistance in the United States could be as high as $20 billion and $35 billion a year in excess direct healthcare costs and lost productivity costs, respectively …

A Promising Beginning, Jeremiah A. Ho

University of Massachusetts Law Review

When I began teaching at the University of Massachusetts in August 2012, one of my first encounters was with the newly-formed UMass Law Review. The editorial staff was wrapping up its initial preparations for publishing the inaugural volume. Now, over a year later, those nascent processes have since been refined; the inaugural year is over. We are excited to say that the UMass Law Review enters its sophomore year with this current issue, affectionately dubbed “9:1”.

The Growing Public Domain In Medicine, Saurabh Vishnubhakat

Faculty Scholarship

This essay describes the growing public domain of inventions associated with drugs and medicine, and geographies associated with identifiable shifts in the balance of innovation that may be especially favorable for promoting wider access to socially useful technologies. To do so, it departs from the largely ex ante perspective that currently informs the intersectional debate regarding human rights and patent rights and, instead, looks backward to inquire what innovations from past patents have already become publicly available in service of the human rights objective of greater access to technology. Ex post analysis of this kind may help public and private …

Innovation And Optimal Punishment, With Antitrust Applications, Keith N. Hylton, Haizhen Lin

Faculty Scholarship

This article modifies the optimal punishment analysis by incorporating investment incentives with external benefits. In the models examined, the recommendation that the optimal penalty should internalize the marginal social harm is no longer valid. We focus on antitrust applications. In light of the benefits from innovation, the optimal policy will punish monopolizing firms more leniently than suggested in the standard static model. It may be optimal not to punish the monopolizing firm at all, or to reward the firm rather than punish it. We examine the precise balance between penalty and reward in the optimal punishment scheme.

Brief Of Amici Curiae Law, Business, And Economics Scholars In Alice Corp. V. Cls Bank, No. 13-298, Jason Schultz, Brian Love, James Bessen, Michael J. Meurer

Faculty Scholarship

The Federal Circuit’s expansion of patentable subject matter in the 1990s led to a threefold increase in software patents, many of which contain abstract ideas merely tethered to a general-purpose computer. There is little evidence, however, to suggest this expansion has produced an increase in software innovation. The software industry was highly innovative in the decade immediately prior to this expansion, when the viability of software patentability was unclear and software patents were few. When surveyed, most software developers oppose software patenting, and, in practice, software innovators tend to rely on other tools to capture market share such as first-mover …

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

Tonja Jacobi

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between police investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited police resources to develop countermeasures, police will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game theoretic model that shows that when police investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

Social Innovation, Peter Lee

Peter Lee

This Article provides the first legal examination of the immensely valuable but underappreciated phenomenon of social innovation. Innovations such as cognitive behavioral therapy, microfinance, and strategies to reduce hospital-based infections greatly enhance social welfare yet operate completely outside of the patent system, the primary legal mechanism for promoting innovation. This Article draws on empirical evidence to elucidate this significant kind of innovation and explore its divergence from the classic model of technological innovation championed by the patent system. In so doing, it illustrates how patent law exhibits a rather crabbed, particularistic conception of innovation. Among other characteristics, innovation in the …

A Comparative Study Of Patent Infringement Remedies Related To Non-Practicing Entities In The Courts Of Canada, The United Kingdom, And The United States, Aleksandar Nikolic

LLM Theses

This work examines the scope of non-practicing entity behavior and whether the debate on remedies can lead to changes that encourage the goals behind a patent system. Innovation is often the stated goal but the significance of innovation commercialization is often ignored. Furthermore, there has been an increase in business models that involve alternate means of monetizing patents, not all of which were contemplated in the purpose of the patent system. Using the goals of the patent system as a backdrop, this work provides an overview of the impact of remedies available to courts in Canada, the United Kingdom, and …

A Promising Beginning, Jeremiah A. Ho

Faculty Publications

When I began teaching at the University of Massachusetts in August 2012, one of my first encounters was with the newly-formed UMass Law Review. The editorial staff was wrapping up its initial preparations for publishing the inaugural volume. Now, over a year later, those nascent processes have since been refined; the inaugural year is over. We are excited to say that the UMass Law Review enters its sophomore year with this current issue, affectionately dubbed “9:1”.

After Myriad: Reconsidering The Incentives For Innovation In The Biotech Industry, Daniel K. Yarbrough

Michigan Telecommunications & Technology Law Review

35 U.S.C. § 101 allows a patent for “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” Recently, the Supreme Court issued several key decisions affecting the doctrine of patentable subject matter under § 101. Starting with Bilski v. Kappos (2011), and continuing with Mayo Collaborative Services, Inc. v. Prometheus Laboratories (2012), Association for Molecular Pathology v. Myriad Genetics (2013) and, most recently, Alice Corporation Pty. Ltd. v. CLS Bank International (2014), every year has brought another major change to the way in which the Court assesses patentability. In Myriad, the …

Fair Use And The Faces Of Transformation, Part I, James Gibson

Law Faculty Publications

The recent Kienitz v. Sconnie Nation case has been the focus of three recent posts in this Intellectual Property Issues series – from me, Doug Lichtman, and Rod Smolla. In Kienitz, the defendant changed a photograph of the mayor of Madison, Wisconsin, into a stylized, high-contrast image, printed on t-shirts that mocked the mayor’s policies. The U.S Court of Appeals for the Seventh Circuit held that the new image constituted a fair use and therefore did not infringe the photograph’s copyright. (The original photo and the stylized version on the t-shirt can be seen here.) …

Making Do In Making Drugs: Innovation Policy And Pharmaceutical Manufacturing, W. Nicholson Price Ii

Law Faculty Scholarship

Despite increasing recalls, contamination events, and shortages, drug companies continue to rely on outdated manufacturing plants and processes. Drug manufacturing’s inefficiency and lack of innovation stand in stark contrast to drug discovery, which is the focus of a calibrated innovation policy that combines patents and FDA regulation. Pharmaceutical manufacturing lags far behind the innovative techniques found in other industries due to high regulatory barriers and ineffective intellectual property incentives. Among other challenges, although manufacturers tend to rely on trade secrecy because of the difficulty in enforcing patents on manufacturing processes, trade secrecy provides limited incentives for innovation. To increase those …

Toward A Jurisprudence Of Drug Regulation, Matthew Herder

Articles, Book Chapters, & Popular Press

Efforts to foster transparency in biopharmaceutical regulation are well underway: drug manufacturers are, for example, legally required to register clinical trials and share research results in the United States and Europe. Recently, the policy conversation has shifted toward the disclosure of clinical trial data, not just trial designs and basic results. Here, I argue that clinical trial registration and disclosure of clinical trial data are necessary but insufficient. There is also a need to ensure that regulatory decisions that flow from clinical trials — whether positive (i.e. product approvals) or negative (i.e. abandoned products, product refusals, and withdrawals) — are …

Procedural Architecture Matters: Innovation Policy At The Federal Communications Commission, J. Brad Bernthal

Publications

This Article examines the puzzle of whether today's Federal Communications Commission ("FCC" or the "Agency") is institutionally suited to craft telecommunications innovation policy and, if not, what changes are needed to better equip the Agency to respond to twenty-first century realities. Evaluation of FCC innovation policy performance is stubbornly difficult. Some criticize the FCC as a brake on innovation yet, under the FCC's oversight, the United States' communications industry has become an innovative engine propelling the overall economy more than ever before. It is difficult to untangle whether the FCC deserves credit for helping usher in today's communications age, whether …

Power And Governance In Patent Pools, Michael Mattioli

Articles by Maurer Faculty

The recent influx of patent pools, research consortia, and similar cooperative groups led by companies at the vanguard of American innovation has raised a pressing question: How does collective action influence the incentive to innovate? This question hinges on how patent pools are internally governed — a topic that has not been deeply examined by legal scholars. Through an original study of fifty-two private agreements, this Article pulls back the veil on patent licensing collectives to examine whether such organizations are designed to encourage long-term innovation.

This study draws on collective patent license agreements spanning the years 1856 to 2013 …