Law Commons^™

When Second Comes First: Correcting Patent’S Poor Secondary Incentives Through An Optional Patent Purchase System, Jordan Barry

ExpressO

As research has advanced, technologies have become more closely knit, and the relationships between them—both complementary and competitive—have become increasingly important. Unfortunately, the patent system’s use of monopoly power to reward innovators creates inefficient results by overly encouraging the development of substitute technologies and discouraging the development of complementary technologies. This paper explains how an optional patent purchase system could help ameliorate such problems and discusses the implications of such a system.

Patent Political Economy - Indian Lessons On Pharmaceutical Patent, Julien L. Chaisse, Samira Guennif

ExpressO

The Intellectual Property Rights (IPR) regime adopted by any country is essentially a tool that strives to ensure both the growth of the domestic pharmaceutical industry and people’s access to medicines. But, contrary to the very easily advanced theory, there is no paradox between the two. From this perspective, the Indian experience has shown that it is precisely the relaxation of its national IPR regime that promoted the growth of its domestic industry, thereby ensuring a better patient access to medicines. However, the globalisation process does not overlook any sector, which means that medicines too are submitted to the new …

Is The Eli Lilly Written Description Requirement A Paper Tiger?: A Comprehensive Assessment Of The Impact Of Eli Lilly And Its Progeny In The Courts And Pto, Christopher M. Holman

ExpressO

In University of California v. Eli Lilly, decided by the Federal Circuit in 1997, the court established for the first time a new form of patent law’s written description requirement, apparently targeted specifically at biotechnology. To this day, the conventional wisdom is that the so-called Lilly written description requirement (“LWD”) exists as a biotechnology-specific “super-enablement” requirement, substantially more stringent than the enablement requirement (the conventional standard for patentability), and standing as an impediment to effective patent protection for biotechnology inventions. My objective in writing this article was to test this conventional wisdom, by conducting a comprehensive search for all LWD …

Law And The Science Of Networks: An Overview And An Application To The "Patent Explosion", Katherine J. Strandburg

ExpressO

The network may be the metaphor of the present era. A network, consisting of “nodes” and “links,” may be a group of individuals linked by friendship; a group of computers linked by network cables; a system of roads or airline flights -- or another of a virtually limitless variety of systems of connected “things.” The past few years have seen an explosion of interest in “network science,” which seeks to move beyond metaphor to analysis in fields from physics to sociology. Network science highlights the role of relationship patterns in determining collective behavior. It underscores and begins to address the …

Patent Reform And Differential Impact, Matthew J. Sag, Kurt Rohde

ExpressO

This article presents a new method of analyzing patent reform proposals through the use of differential impact analysis.

Congressional efforts to address the crisis of confidence in the U.S. patent system have failed up to the present day. If Congress is to have any hope of passing much needed legislative reform to the Patent Act, the supporters of patent reform will have to unite behind a streamlined set of proposals that directly address the most pressing and unambiguous defects of the current patent system. To that end, we have proposed applying a test of differential impact to enable Congress to …

Risk Aversion And Rights Accretion In Intellectual Property Law, James Gibson

ExpressO

Intellectual property’s road to hell is paved with good intentions. Because liability is difficult to predict, intellectual property users often seek licenses even when proceeding without one might be permissible. Yet because the existence (vel non) of licensing markets plays a key role in determining the breadth of rights, these seemingly sensible licensing decisions eventually feed back into doctrine; the licensing itself becomes proof that the entitlement covers the use. Over time, then, public privilege recedes and rights expand, moving intellectual property’s ubiquitous gray areas into what used to be virgin territory--where risk aversion again creates licensing markets, which cause …

The Role Of Patents In Fostering Open Innovation, John Dubiansky

ExpressO

The patent system is at an inherent tension with contemporary practices of innovation. American patent doctrine reveres the lone inventor who, through the marshalling of extraordinary insight and experimental toil, conceives a novel invention. As a reward, the inventor is given the right to profit from his contribution through personal commercial exploitation. While this perspective may have reflected the practice of the mechanical arts at the time of the nation’s founding, it no longer reflects contemporary industrial research and development, where innovation is an increasingly networked process.

This disconnect is evidenced by the fact that contemporary patent doctrine has failed …

The Expressive Impact Of Patents, Timothy R. Holbrook

ExpressO

Patents represent a quid pro quo between the public and the inventor: in exchange for disclosing the invention, the inventor receives the right to exclude others from practicing her invention. They therefore serve as a source technical information. Patents also communicate information to markets and companies that serve to reduce various transaction costs, allowing more efficient transactions and investment. Patents consequently communicate various types of information beyond the technical.

There is no reason, however, that such messages must be limited to the technical or the pecuniary. This Article explores whether patents, like other governmental acts such as legislation, can create …

An Analysis For The Valuation Of Venture Capital-Funded Startup Firm Patents, John Dubiansky

ExpressO

In an era where forces such as the Bayh Dole act and the rise of the venture capital industry are reshaping the manner in which innovations are brought to market, the role of intellectual property in the financing of new ventures is becoming increasingly important. The investment community requires a better understanding of the risks of patent-based transactions as such deals become more prevalent. This paper addresses that need by explaining an analysis for the valuation of startup firm-held patents. The paper considers the commonly employed methods of patent valuation, and offers an analysis which considers Legal, Technical, and Technology-Market …

A New Weapon Against Piracy: Patent Protection As An Alternative Strategy For Enforcement Of Digital Rights, Dennis S. Fernandez, Matthew Chivvis, Mengfei Huang

ExpressO

This article illustrates how patents and copyrights complement each other to provide a better defense for creative works. Copyrights protect expression, and patents protect underlying functions. Currently, the one-time strengths of copyrights are being eroded as courts allow new technologies to flourish which enable digital reproduction and piracy. This has encouraged companies and industries to move increasingly to patent protection and any company that fails to pursue this trend may be left behind. In sum, patents are a worthwhile strategy because they assist copyright owners in controlling the technology that enables infringement while copyrights alone would leave a company vulnerable …

Digital Wars -- Legal Battles And Economic Bottlenecks In The Digital Information Industries, Curt A. Hessler

ExpressO

The Digital Age has spawned major legal battles over the fundamental principles of intellectual property law and antitrust law. These diverse struggles can best be analyzed using the basic norm of "value added" from neo-classical normative economics. This analysis suggests that current intellectual property doctirnes provide excessive protection and current antitrust doctrines remain awkward in dealing with the cross-market leveraging of monopoly power in the presence of "natural monopolies" created by network effects.

The "Planes, Trains, And Automobiles" Defense To Patent Infringement For Today's Global Economy: Section 272 Of The Patent Act, Ted L. Field

ExpressO

In 2004, for the first time ever, the U.S. Court of Appeals for the Federal Circuit applied the little-known temporary-presence defense of 35 U.S.C. § 272 in National Steel Car v. Canadian Pacific Railway. Section 272 provides a defense to patent infringement where a foreign vessel, aircraft, or vehicle enters the United States temporarily to engage in international commerce. The purpose behind § 272 is to prevent domestic patent enforcement from inhibiting international trade. Although this defense may not be well known yet, the Federal Circuit’s broad interpretation of § 272 will allow the temporary-presence defense to become more important …

The Pull Of Patents, Brett M. Frischmann

ExpressO

The conventional view of the role of patents in the university research context (and more generally) is that patent-enabled exclusivity improves the supply-side functioning of markets for university research results (and inventions more generally) as well as those markets further downstream for derivative commercial end-products. The reward, prospect, and commercialization theories of patent law take patent-enabled exclusivity as the relevant means for fixing a supply-side problem—the undersupply of private investment in the production of patentable subject matter or in the development and commercialization of patentable subject matter that would occur in the absence of patent-enabled exclusivity. Put another way, patents …

Rethinking Rights In Biospace, Robin C. Feldman

ExpressO

Twenty-five years ago, Federal courts opened the door to the biotechnology revolution by granting patents on genetic inventions. The nature of such inventions, however, increasingly conflicts with the implications of rules created for mechanical products. In particular, across five disparate doctrines, courts are struggling with the question of whether the definition of a biotech invention should include things beyond the state of the art at the time of the invention. Reaching beyond the state of the art may make sense for mechanical inventions, but it is wreaking havoc in doctrines related to biotechnology.

A doorknob is a doorknob, regardless of …

Thinking Outside The Pandora's Box: Why The Dmca Is Unconstitutional Under Article I §8 Of The U.S. Constitution, Joshua L. Schwartz

ExpressO

No abstract provided.

Can A Bankrupt Company Assign Its Patent License To The Highest Bidder, Even When The License Itself Forbids Assignment? Why Everex Systems, Inc. V. Cadtrak Corp. Gives An Unconvincing Answer, Matthew D. Siegel

ExpressO

A patent licensee that declares bankruptcy will often want to assign its rights under the license to another party in exchange for much-needed cash. The Bankruptcy Code generally allows debtors to assign executory contracts, including patent licenses, in this way. Indeed, the Code permits debtors to assign a contract even if the contract itself contains a “no-assign” clause, i.e., a clause expressly forbidding assignment. But there is an exception: The Code will defer to certain kinds of otherwise applicable non-bankruptcy law that would normally prevent the contract from being assigned. In particular, the Code will not allow assignment by a …