Janis and Holbrook: Who reads patent laws?

What group of people forms patent law's audience?  In the late eighteenth century, patent law's audience reflected the pre-industrialized nature of the country and was composed of a small group of lawyers and inventors.  Today, the audience matches the modern trend of patent law towards increasing complexity.  The contemporary patent audience includes not only a larger group of lawyers and inventors but also information synthesizers like bloggers, journalists, and academics, as well as innovators' corporate management and the ever-expanding USPTO.  The result of patent law's growing complexity, however, is not only a larger audience, but also a larger audience mostly in the dark about the rules governing their activities.  In Patent Law's Audience, Mark D. Janis and Timothy R. Holbrook discuss the problem of patent law's inaccessibility and offer guides for courts to bridge the gap between patent law and its audience.

Fromer: Expressive Incentives in Intellectual Property

Are the current incentive structures in American patent and copyright law reaching their maximum utilitarian potential? In her recent article Expressive Incentives in Intellectual Property, 98 Virginia Law Review 1745 (2012), Professor Jeanne Fromer (New York University School of Law) suggests that traditional reliance on pecuniary interests leaves untapped potential in maximizing the effectiveness of intellectual property law in terms of spurring creativity and invention. She proposes using expressive incentives—incentives reflecting the moral-rights interests of creators—perhaps instead of traditional pecuniary incentives, to optimize intellectual property laws in a utilitarian framework.

Chief Judge Markey and Doctrinal Development

As I wrote in What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings, I think some of the expansion in the bounds of patentability that has occurred since the creation of the Federal Circuit could be explained by systematic effects such as the presumption of patentability (e.g., if the Federal Circuit holds that the challenger to a granted patent has not overcome the presumption of patentability, and then the PTO erroneously relies on that precedent in granting a new patent, which then itself becomes subject to the presumption). But I am skeptical of any account of doctrinal development that considers only these kinds of systematic effects and not the more idiosyncratic influences of individual judges.

Why Stop at Fees? The Case for Making All Patent Losers Pay, and Pay Heavily

Guest post by Professor Jonathan Masur, University of Chicago School of Law

The excellent op-ed published last week by Chief Judge Rader, Colleen Chien, and David Hricik has re-ignited the debate surrounding attorneys’ fee awards in patent cases. This conversation has dovetailed with the renewed focus on patent trolls, spurred by congressional and presidential attention to the issue. Taken together, these issues present the possibility of a productive approach to the problem of patent trolls—and to firms that assert weak patents more generally.

Carrier: Classic Antitrust/IP Scholarship

The next contribution to the Classic Patent Scholarship Project is from Professor Michael Carrier (Rutgers Camden), a leading expert on the intersection of IP and antitrust. His impressive scholarly portfolio includes the influential Unraveling the Patent-Antitrust Paradox, which was cited by the Supreme Court in Bilski and (perhaps less notably) summarized on this blog two years ago. For a thoughtful overview of how patents, copyright, and antitrust can work together to foster innovation, I also highly recommend his 2009 book, Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law (download the introduction or check out this excellent symposium).