New IP Scholarship on SSRN

There are far more interesting IP papers posted than I have time to read carefully and blog about, so I thought I'd just highlight some recently posted papers that caught my eye (which I have also tweeted):

Chris Buccafusco & Jonathan Masur, Innovation and Incarceration: An Economic Analysis of Criminal Intellectual Property Law. Great (and timely) analysis of the use of criminal liability in copyright and patent law.

Thomas F. Cotter, Make No Little Plans: Response to Ted Sichelman, Purging Patent Law of ‘Private Law’ Remedies. "Although I remain skeptical that such a system could ever work in the real world, Sichelman defends his thesis with aplomb—and recognizes its practical infeasibility in the near term."

Diana Heger & Alexandra Karin Zaby, A Look at Both Sides of the Coin: Investigating the Protective and the Disclosure Effect of Patenting. "Providing empirical evidence for the presented theoretical results we find that (i) a technological lead and the propensity to patent are negatively related as opposed to common intuition, (ii) in industries with imperfect appropriability in case of secrecy the extent of the technological lead is positively associated with the propensity to patent, and that (iii) the intensity of patent protection mitigates the competitive threat a patentee faces."

Herbert Hovenkamp, Institutional Advantage in Competition and Innovation Policy. "This brief essay addresses the question of relative institutional advantage in cases where both competitive harm and harm to innovation are relevant but patent and antitrust approaches differ widely and are likely to reach different conclusions."

Mark Lemley, Why Do Juries Decide If Patents Are Valid? "I argue that if and when the issue is presented to the Supreme Court, the Court is unlikely to find a constitutional right to jury trial on issues of patent validity, and certainly not the broad right of the sort that is now common practice."

Jorge Lemus & Emil Temnyalov, The Effect of Non-Practicing Entities on the Rate of Innovation. They create a theoretical model of NPEs and conclude that "[u]nder plausible assumptions" NPEs increase innovation.

Justine Pila, Pluralism, Principles and Proportionality in Intellectual Property. Looks at Merges's "Justifying Intellectual Property" from a European jurisprudence perspective.

Suzanne Scotchmer, Patents in the University: Priming the Pump and Crowding Out. "I show that subsidies to the university can either 'prime the pump' for spending out of Bayh-Dole funds, or can crowd it out. Because of crowding out, if the sponsor wants to increase university spending beyond the university's own target, it will end up funding the entire research bill, just as if there were no profit opportunities under the Bayh-Dole Act. A subsidy system that requires university matching can mitigate this problem."