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Full-Text Articles in Law
What's Wrong With The Patent System? Fuzzy Boundaries And The Patent Tax, James Bessen, Michael J. Meurer
What's Wrong With The Patent System? Fuzzy Boundaries And The Patent Tax, James Bessen, Michael J. Meurer
Faculty Scholarship
The annual number of patent lawsuits filed in the U.S. has roughly tripled from 1970 to 2004. The number of suits was more or less steady in the 1970s, climbed slowly in the 1980s, and exploded in the 1990s. Why? The usual answers point to (1) the growth of the “new economy” and the concomitant explosion of patenting, (2) the failure of the Patent Office to reject patents on old or obvious inventions, or (3) the rise of the patent troll. There is an element of truth in all these answers, but even collectively they do a poor job explaining …
An Empirical Look At Software Patents, James Bessen, Robert M. Hunt
An Empirical Look At Software Patents, James Bessen, Robert M. Hunt
Faculty Scholarship
U.S. legal changes have made it easier to obtain patents on inventions that use software. Software patents have grown rapidly and now comprise 15 percent of all patents. They are acquired primarily by large manufacturing firms in industries known for strategic patenting; only 5 percent belong to software publishers. The very large increase in software patent propensity over time is not adequately explained by changes in R&D investments, employment of computer programmers, or productivity growth. The residual increase in patent propensity is consistent with a sizeable rise in the cost effectiveness of software patents during the 1990s. We find evidence …
Race-Ing Patents/Patenting Race: An Emerging Political Geography Of Intellectual Property In Biotechnology, Jonathan Kahn
Race-Ing Patents/Patenting Race: An Emerging Political Geography Of Intellectual Property In Biotechnology, Jonathan Kahn
Faculty Scholarship
This article applies insights from critical race theory to examine an emerging phenomenon in biotechnology research and product development. The strategic use of race as a genetic category to obtain patent protection and drug approval. A dramatic rise in the use of race in biotechnology patents indicates that researchers and affiliated commercial enterprises are coming to see social categories of race as presenting opportunities for gaining, extending, or protecting monopoly market protection for an array of biotechnological products and services. Racialized patents are also providing the basis for similarly race-based clinical trial designs, drug development, capital raising and marketing strategies …
Standard Setting, Patents, And Access Lock-In: Rand Licensing And The Theory Of The Firm, Joseph S. Miller
Standard Setting, Patents, And Access Lock-In: Rand Licensing And The Theory Of The Firm, Joseph S. Miller
Scholarly Works
Many leading voluntary standard-setting organizations (SSOs) have adopted intellectual property (IP) policies under which participants must promise to license any patents on technology that they contribute to a standard, and to do so on reasonable and nondiscriminatory terms (RAND). The standard setting literature includes a substantial focus on the widespread use of this RAND promise. A common refrain in these analyses of the RAND promise is that its meaning is dysfunctionally uncertain. We know more about the RAND promise, however, than the existing literature suggests. I show that we already know the RAND promise's core meaning, and why it remains …
The Federal Circuit And Patentability: An Empirical Assessment Of The Law Of Obviousness, Lee Petherbridge, R. Polk Wagner
The Federal Circuit And Patentability: An Empirical Assessment Of The Law Of Obviousness, Lee Petherbridge, R. Polk Wagner
All Faculty Scholarship
It is by now a cliché to suggest that the United States Court of Appeals for the Federal Circuit has weakened the standards for obtaining patents. In this article, we empirically assess that Court’s performance on the ultimate question of patentability— the requirement that a patentable invention must be “nonobvious.” Our findings suggest that the conventional wisdom may not be well-grounded, at least on this measure. Nowhere is the Federal Circuit’s controversial role as the locus of judicial power in the U.S. patent system more evident than in the context of the doctrine of obviousness under 35 U.S.C. § 103. …