Merges: Classic Patent Scholarship

The next contribution to the Classic Patent Scholarship Project is from Professor Robert Merges at Berkeley Law, another giant in intellectual property law. Merges has authored a number of articles that have already made the "classics" list, as well as others that deserve to be there; for example, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 Calif. L. Rev. 1293 (1996), provides an early discussion of transaction costs in IP thickets that is highly relevant to contemporary problems such as "royalty stacking" in the mobile phone wars. Merges also has recently written Justifying Intellectual Property (which was subject to a terrific book club over at PrawfsBlawg), and he is well known to law students as the author of popular intellectual property and internet law casebooks. Here is his list of classics, "some well known and others that may have been lost in the mists of time." There are many suggestions here that have not been mentioned by any of the prior contributors, which I will add to the compiled list.

Articles:

1. Richard Gilbert & Carl Shapiro, Optimal Patent Length and Breadth, 21 RAND J. Econ. 106 (1990).
2. Fritz Machlup & Edith Penrose, The Patent Controversy in the Nineteenth Century, 10 J. Econ. Hist. 1 (1950).
3. Suzanne Scotchmer, Standing on the Shoulders of Giants: Cumulative Research and the Patent Law, 5 J. Econ. Persp. 29 (1991).
4. Louis Kaplow, The Patent-Antitrust Intersection: A Reappraisal, 97 Harv. L. Rev. 1813 (1984).
5. F.M. Scherer, Nordhaus’ Theory of Optimal Patent Life: A Geometric Reinterpretation, 62 Am. Econ. Rev. 422 (1972).
6. Edwin Mansfield, Patents and Innovation: An Empirical Study, 32 Mgmt. Sci. 173 (1986).
7. Richard C. Levin, Alvin K. Klevorick, Richard R. Nelson & Sidney G. Winter, Appropriating the Returns from Industrial Research and Development, 1987 Brookings Papers on Econ. Activity 783.
8. Joseph Farrell & Garth Saloner, Standardization, Compatibility, and Innovation, 16 RAND J. Econ. 70 (1985).
9. Martin J. Adelman, Property Rights Theory and Patent-Antitrust: The Role of Compulsory Licensing, 52 NYU L. Rev. 977 (1977).
10. Justin Hughes, The Philosophy of Intellectual Property, 77 Geo. L.J. 287 (1988).
11. Edward C. Walterscheid, To Promote the Progress of Useful Arts: American Patent Law and Administration, 1798-1836 (1998) (largely a synthesis of previously published articles on various aspects of the history of the IP clause in the constitution and the early days of the patent system).

Treatises:

1. Thomas Green Fessenden, An Essay on the Law of Patents for New Inventions (1810) (the first American patent law treatise) (the 2d ed. from 1822 is also freely available).
2. William Robinson, Robinson on Patents: The Law of Patents for Useful Inventions (1890) (the definitive nineteenth century treatise).
3. Donald S. Chisum, Chisum on Patents: A Treatise on the Laws of Patentability, Validity, and Infringement (1st ed. 1978) (invaluable snapshot of the patent system just before the Federal Circuit revolution of 1982).