Top 10 New IP Paper Downloads

Here's an updated list of the most downloaded IP papers that were posted on SSRN in the past 60 days (with notes about the ones that were not on last month's list):

Abbott: Incentivizing Production of Drug Safety Information

Information about drug safety and efficacy is a public good, and it will thus be undersupplied absent government incentives to close the gap between the cost of producing this information and the private benefit that can be appropriated. Many pages have been written on the best way to incentivize drug development; alternatives to the current patent-centric regime include direct government financing, various prize schemes, and R&D tax incentives. But far less attention has been paid to incentivizing information production after drugs have received FDA approval and are on the market, and as examples such as the withdrawal of Vioxx illustrate, delays in producing information about the safety of new drugs can have important public health consequences. This important issue is tackled in Big Data and Pharmacovigilance: Using Health Information Exchanges to Revolutionize Drug Safety (forthcoming in the Iowa Law Review), by Ryan Abbott (who has an M.D. in addition to being a prof at Southwestern Law School).

Are R&D tax credits the software patent solution?

The Federal Circuit's fractured en banc decision in CLS Bank v. Alice probably pleased only those patent litigators who might benefit from the resulting uncertainty. The case could have provided clear guidance on the "abstract ideas" exception to patent eligibility (and thus the patentability of software), but the court instead issued 7 opinions in 135 pages, with nothing beyond the judgment having the weight of precedent. While there is much to be disappointed in here, I want to highlight a statement on page 12 of Judge Newman's opinion: "No substitute has been devised for the incentive of profit opportunity through market exclusivity."

Crews: The Overreaching of Museums Art Image Copyright Policies

Do copyright and contract licensing policies adopted by art museums to restrict access to reproduced images of original artwork constitute overreaching? In his article, Museum Policies and Art Images: Conflicting Objectives and Copyright Over-Reaching, Dr. Kenneth D. Crews (Adjunct Professor of Law and Director of Columbia University's Copyright Advisory Office), explores the idea that while art museums have legitimate reasons for imposing restrictive policies, the broad and varied requirements often exceed their legal rights under copyright law.

Hrdy: State Patents

Yale ISP fellow Camilla Hrdy has just posted Dissenting State Patent Regimes (IP Theory). Here is the abstract:

Inventors who believe in open innovation should start applying for state patents instead of U.S. patents. Patenting at the state level prevents rivals from obtaining U.S. patents and generates valuable innovation spillovers in other states where the patent has no legal effect. It also creates a unique opportunity to force patent law reform from the bottom up. In exchange for filing fees, inventors can demand patents based on rules that support open innovation, like shorter terms in fast-moving industries, stricter disclosure requirements, or new restrictions on patenting by non-practicing entities. The lobbyists who stymie reform at the national level will have a much harder time blocking reform in all fifty states. Meanwhile, patent law’s dissenters need only one state to start granting patents in order to get courts, the media, and eventually Congress to pay attention.