Adam Mossoff on Patent History and Commercialization

Historical sources can help in "rediscovering the fundamental commercialization policy within patent law," argues Professor Adam Mossoff (George Mason Law) in his recently posted book chapter, Commercializing Property Rights in Inventions: Lessons for Modern Patent Theory from Classic Patent Doctrine. (If you want to buy the whole book, it looks like it is cheapest from Walmart.) Here is the abstract:

Hemphill & Sampat on Pharma Market Life

"Prospecting" by generic pharmaceutical companies—raising patent challenges to high-sales branded drugs—is on the rise, but these challenges are not shortening the effective market life of branded drugs; rather, patent challenges are combatting "evergreening" efforts by branded manufacturers. This is the surprising result of a new empirical working paper by economists Scott Hemphill (Columbia Law) and Bhaven Sampat (Columbia Public Health), Evergreening, Patent Challenges, and Effective Market Life in Pharmaceuticals, which builds on their prior work in the area. (I have also worked with Bhaven in the past, when he provided some of the data for my paper on university drug patents.)

Cultural Cognition Project: Rationality and Climate Change

While I was in law school, I worked on survey design and data analysis for the Cultural Cognition Project, led by Professor Dan Kahan. We just posted a new working paper to SSRN: The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality Conflict, and Climate Change. Here is the abstract:

The conventional explanation for controversy over climate change emphasizes impediments to public understanding: Limited popular knowledge of science, the inability of ordinary citizens to assess technical information, and the resulting widespread use of unreliable cognitive heuristics to assess risk. A large survey of U.S. adults (N = 1540) found little support for this account. On the whole, the most scientifically literate and numerate subjects were slightly less likely, not more, to see climate change as a serious threat than the least scientifically literate and numerate ones. More importantly, greater scientific literacy and numeracy were associated with greater cultural polarization: Respondents predisposed by their values to dismiss climate change evidence became more dismissive, and those predisposed by their values to credit such evidence more concerned, as science literacy and numeracy increased. We suggest that this evidence reflects a conflict between two levels of rationality: The individual level, which is characterized by citizens’ effective use of their knowledge and reasoning capacities to form risk perceptions that express their cultural commitments; and the collective level, which is characterized by citizens’ failure to converge on the best available scientific evidence on how to promote their common welfare. Dispelling this, “tragedy of the risk-perception commons,” we argue, should be understood as the central aim of the science of science communication.

Comments are welcome!

SSRN Patent Professor Rankings

Which patent law professors had the most SSRN downloads in the past year? While there are certainly many problems with using SSRN downloads for rankings, it can still be an informative metric, so I am going to again import a useful series from TaxProf Blog into the IP setting. SSRN's list (login required) was last updated on 6/6/11, and here's a ranking by "Total New Downloads," which tracks "Total downloads for the last 365 days for all the author's papers in the SSRN eLibrary." Inclusion on this list is based on my subjective assessment of whether the person could count as a "patent professor" or "patent scholar" (based on a quick look at his or her SSRN page); if you think I missed someone, please let me know!

Mann & Underweiser: New Look at Patent Quality

"What can justify another paper about patent quality?" ask Ronald Mann (Columbia Law) and Marian Underweiser (IBM) at the beginning of A New Look at Patent Quality: Relating Patent Prosecution to Validity (a working paper posted to SSRN last fall). Answer: an empirical analysis of a new dataset of Federal Circuit patent validity decisions from 2003 until 2009. Mann and Underweiser have written my favorite kind of article: one that brings new and rigorous empirical evidence into the debate. Even if you disagree with their specific policy conclusions, the empirical results are presented independently and remain a useful contribution.

Top 10 IP Paper Downloads

Over at TaxProf Blog (which has interesting posts about legal education as well as about tax law), Paul Caron has been posting weekly updates of the Top 5 Recent Tax Paper Downloads. Because I am rarely able to read and review IP papers as fast as they are posted on SSRN, I am going to begin doing the same for the IP papers that received the most SSRN downloads in the past 60 days. This week, I'll list the whole top 10:

Colleen Chien on the Patent Ecosystem

The "patent ecosystem" is defined by the complex interactions between two seemingly disparate paradigms—the defensive amassing of patents in the "patent arms race," and the purchase of patents (often by "patent-assertion entities") in the "patent marketplace"—argues Colleen Chien (Santa Clara Law) in From Arms Race to Marketplace: The Complex Patent Ecosystem and Its Implications for the Patent System. How do these two paradigms interact, and what can they teach us about the patent system?

Lemley: Myth of the Sole Inventor

Edison invented the light bulb, right? No, explains Mark Lemley (Stanford Law) in his newly posted article, The Myth of the Sole Inventor. Edison merely "found a bamboo fiber that worked better as a filament in the light bulb developed by Sawyer and Mann, who in turn built on lighting work done by others." Alexander Graham Bell developed the telephone at the same time as an independent inventor; the Wright brothers' airplane was soon surpassed by others (which they tried to delay with patents); Samuel Morse wasn't the first to make a working telegraph; and Eli Whitney's cotton gin just happened to work better than other mechanical toothed cotton gins at the time. "The canonical story of the lone genius inventor is largely a myth," Lemley argues.

T.J. Chiang: Levels of Abstraction

What is an "invention"? The Wright brothers received a patent for building one embodiment of an "invention" ("a single glider that could barely fly"), but the scope of their patent claims covered a much broader idea of their "invention," which might be interpreted at different levels of abstraction, ranging from all flying machines to only airplanes very similar to the original embodiment. In The Levels of Abstraction Problem in Patent Law (forthcoming in the Northwestern University Law Review), Tun-Jen Chiang (George Mason Law) argues that courts do not even acknowledge that this problem exists; rather, they select a level of abstraction "arbitrarily and silently." Chiang's goal is "to demonstrate that the problem exists and current doctrine fails to acknowledge it" and to "provide the [legal realist] foundation for a more transparent analysis of the problem."