Monday, October 20, 2014

Bechtold & Tucker on Trademarks & Google AdWords

How does using a third party's trademark as a keyword to trigger Google ads affect consumer behavior? In Trademarks, Triggers, and Online Search (forthcoming in the Journal of Empirical Legal Studies), Stefan Bechtold (ETH Zurich) and Catherine Tucker (MIT Sloan), present an amazing dataset that can shed light on this question due to a fortuitous natural experiment in European trademark law. For anyone who is interested in trademark policy but who hasn't seen this, it is worth a download. In short, they find that after Google changed its policy to allow companies to select third-party trademarks as advertising keywords, it had no measurable average effect on how likely searchers were to visit the trademark owner's website, but it had a noticeable effect on the behavior of different kinds of online searchers. The authors attempt to distinguish "navigational" searchers who are likely looking for the trademark owner's website, with searches like [ iPhone ] or [ Barbie ], from "non-navigational" searchers who are using the trademark in some other way, with searches like [ iPhone battery repair Paris ] or [ Barbie working conditions workers China ] (where non-navigational searches make up about 80% of all searches). Bechtold and Tucker find that after the policy change, navigational searchers are less likely to visit the trademark owner's website, while non-navigational searchers are more likely to visit.

Wednesday, October 15, 2014

Teva v. Sandoz Argument Recap

This morning I attended the Supreme Court argument in Teva v. Sandoz, the case on the standard of review for patent claim construction, which I previewed on this blog. Based on the questions today (transcript here), I think that Chief Justice Roberts, Justice Alito, Justice Sotomayor, and perhaps Justice Ginsburg were inclined to affirm the current de novo approach, and that Justices Scalia, Kennedy, Breyer, and Kagan thought that claim construction involves subsidiary factual issues that must be reviewed under the clearly erroneous standard of rule 52(a). Justice Thomas, as usual, was silent. If I had to guess, I still suspect that the Court will ultimately reject the de novo approach, but I don't think the answer is at all obvious from argument. So we'll have to wait for the opinion to get a definitive (and hopefully clear!) answer. Below are my thoughts about the leaning of each Justice.

Tuesday, October 14, 2014

Kenney & Mowery: Public Universities and Regional Growth

I've received my new copy of Public Universities and Regional Growth: Insights from the University of California, edited by Martin Kenney and David Mowery. It is an excellent book, demonstrating the complex interactions between university, industry, and government that underlie the unmatched growth in certain sectors of the California region. The book contains numerous case studies of University of California campuses' involvement in major technological developments, including semiconductors and chip and software design at UC Berkeley, UCLA, and UC Santa Barbara, wireless at UC San Diego, and biotechnology at UCSD and UC San Francisco, and more. Each of these campuses became anchors for regional clusters that stimulated economic growth in their respective regions along with advancing science.

Friday, October 3, 2014

Teva v. Sandoz Argument Preview

On October 15, the Supreme Court will hear arguments in Teva v. Sandoz, which focuses on a seemingly simple question: What should be the standard of review for patent claim construction? (For those unfamiliar with claim construction, see Polk Wagner's introductory lecture.) The Federal Circuit reviews claim construction de novo, following its en banc decisions in Cybor (1998) and Lighting Ballast (2014). The Teva petitioners argue that claim construction involves questions of fact, and that Fed. R. Civ. P. 52(a) requires that these findings "must not be set aside unless clearly erroneous." And the de novo standard has received plenty of scholarly criticism, including in a recent article by Jonas Anderson and Peter Menell that was featured on this blog (see also their thoughtful amicus brief in Teva, with Arti Rai). Is this yet another case in which the Federal Circuit has made inappropriate patent-specific rules, or will the Supreme Court finally conclude that the specialized patent court is doing something right? And will the Court pay attention to the possibility that tinkering with deference regimes can lead to more (or fewer) deference mistakes?