Monday, July 30, 2018

#IPSC18 Preview: Patents & Innovation

The 18th Annual IP Scholars Conference is next week (Aug. 9-10) at Berkeley Law, and it includes over 140 academic talks given in six parallel tracks. It's not a great format for deep substantive engagement, but it's my favorite conference for getting an overview of what the IP academic community is working on. Of course, you can only see one-sixth of the projects, so if you want a taste of everything: I just read all the abstracts for this year's conference and wrote one sentence on each of them.

Here are all the panels that seem primarily focused on patents and innovation; I'll post about other IP areas (including panels combining patents with other areas of IP) in the coming days. For coauthored papers, the presenting author is listed first.

  • Breakout 1 – Patent Theory
    • Scott Baker & Anup Malani – An economic model suggests that an opt-in regulatory system (such as the patent system) can improve welfare through mistaken grants by encouraging firms to opt in and thus improving information for investors.
    • Michael Burstein & Mark McKenna – SCOTUS's line between patentable inventions and unpatentable discoveries needs normative justification.
    • Nicholson Price – The novelty requirement is not always aligned with social welfare, as illustrated by the biomedical field. (Builds on scholars such as Sean Seymore and Ben Roin; see also Krieger et al. on drug novelty. I'm sorry to have to miss this session!)
    • Miriam Marcowitz-Bitton & Maayan Perel [canceled] – Patent term should be keyed to recoupment of investments plus reasonable profits. (Related to literature on basing damages on R&D costs, which I review here.)
  • Breakout 1 – Ad Law of IP
    • Michael Frakes & Melissa Wasserman – Another USPTO empirical project from this inimitable duo, this one on how PTAB reversals affect patent examiner behavior. (Wish I could be at this session too!)
    • Jonathan Masur – "The outcome in Oil States provides a possibly counter-intuitive answer as to whether panel stacking by the PTO director will remain permissible." (Wasserman & Walker also have thoughts on this, so I'm glad they're in the same session.)
    • Saurabh Vishnubhakat – Empirical data suggests SAS was rightly decided, despite criticism "for sacrificing efficiency on the altar of wooden statutory interpretation."
    • Melissa Wasserman & Chris Walker – PTAB adjudication is not unusual except that agency head lacks final decision-making authority. (Great paper, summarized here.)
  • Breakout 1 – History: IP and Innovation
    • Rebecca Curtin – John Locke's commercial dealings with publishers illustrate diverse transactional tools and emerging sense of authors' rights. (This is copyright, not patent, so I'll note it again tomorrow, but the rest of the panel is more patent-focused.)
    • Randy Picker – Reviews computer competition and innovation over last 100 years, including how WWII government contracting decisions shaped the computer patent environment.
    • Michael Risch – 19th century apple-parer patents are instructive, including in showing how patent enforcement can channel innovation toward noninfringing workarounds.
  • Breakout 2 – Patents
    • Chris Holman – Vanda v. West-Ward, holding that step requiring action based on diagnostic result rendered a claim patent eligible, is good news.
    • Amy Motomura – Allowing a patentee's own past patent applications to serve as prior art discourages valuable disclosure. (Amy is a patent prosecutor with an MS in bioengineering who recently joined Stanford as a fellow with the Center for Law and the Biosciences—patent folks should meet her!)
    • David Schwartz, Jay Kesan & Anne Layne-Farrar – Empirical study of patents acquired by hybrid PAEs (those subject to some level of operating company control).
    • James Stern – Patent holders should be able to obtain a final determination that their patents are valid.
  • Breakout 2 – Law, Norms, Forms
    • Jorge Contreras – FRAND policies are governed by the jurisdiction in which the standards-development organization is based, threatening a race to the bottom.
    • Brett Frischmann, Katherine Haenschen & Ari Waldman – Knowledge-sharing communities develop privacy rules and norms to enable their cooperation. (Not patent-specific, but sounds interesting.)
    • Robert Cooter & Uri Hacohen – Patent doctrines should be interpreted to maximize innovation (and thus growth), not static efficiency or redistribution. (Cooter presented this idea when he received the Ronald H. Coase medal at ALEA. Even if one buys the normative claim, I was skeptical that it has the clear doctrinal payoffs he suggested.)
    • Jacob Sherkow [canceled] – High-throughput DNA sequencing leading to adaptive immunoreceptor repertoire (AIRR) data, and what it teaches us about trade secrecy and disclosure.
  • Breakout 3 – Infringement and Remedies
    • Bernard Chao & Roderick O'Dorisio – Mock jurors will be asked to render patent damages awards in a 3x3x2 experiment. (I'm looking forward to the results!)
    • Pamela Samuelson & Mark Gergen – Disgorgement damages for design patents should be based on an assessment of the profits that can be causally attributed to the infringing elements in a defendant's product.
    • Amy Landers – Proximate cause in patent cases should be reexamined in light of patent law's purposes.
    • Erik Hovenkamp – The antitrust question can be addressed without inquiring into whether the patent is valid and infringed by looking at the nature of the settlement agreement. (Interesting that there aren't more IP & antitrust papers at IPSC this year!)
  • Breakout 3 – Ad Law of IP
    • Jeremy Bock – The PTO receives insufficient feedback from the rest of the patent system.
    • Charles Duan – Regulation sometimes requires use of IP-protected material; courts take inconsistent approaches to the resulting overvaluation of IP. (This paper isn't patent-specific, but the rest of the panel is.)
    • John Duffy – The AIA pushed the PTO away from its "rational ignorance" approach toward the prevailing ad law process of "reasoned decisionmaking."
    • Arti Rai – AI could improve patent examination, but it also poses challenges.
  • Breakout 3 – Patent's Purpose
    • Jonas Anderson – Inventors of surgical techniques seek patents despite their inability to enforce such patents against surgeons and hospitals because they are motivated by prestige and reputational rewards.
    • Dan Prud'homme – Survey data from Chinese firms suggests that state patenting incentives help latecomer firms facing patent thickets.
    • Brenda Simon – Interviews with medical device professionals illuminate patents' disclosure function. (Yay for more research on disclosure!)
    • Neel Sukhatme – A field experiment tests whether making a product's patent status more salient makes it more desirable to consumers.
  • Breakout 4 – Patent Litigation
    • Rebecca Eisenberg – Debates over PTO vs. judicial decisionmaking should pay attention to timing—both the value of alacrity in resolving disputes (which may be served by more judicial deference to the PTO) and the benefit of later evidence not available at the time of prosecution.
    • Paul Gugliuzza – The elite bar has contributed to the growth of SCOTUS's patent docket, and the Court relies more on these kinds of heuristics in patent cases than in other areas.
    • Dmitry Karshtedt – Patent challengers should not be able to relitigate in the PTAB issues that a district court has already decided.
    • Brian Love, Bernhard Ganglmair & Christian Helmers – Defensive patent litigation insurance deters subsequent assertion (economic model + empirics).
  • Breakout 4 – IP and International Economic Development
    • Aman Gebru – A disclosure-of-origin requirement could spur innovation by preventing source communities for genetic resources and traditional knowledge from putting up barriers to research.
    • Cynthia Ho – The U.S. culture has been captured by the "patents work in pharma" view and can learn from other countries that are more skeptical of pharma patents.
    • John John Uket – Case studies from Nigeria, South Africa, and Kenya show that stronger IP is necessary for African development.
    • Rebecca Wolitz – Many states are experimenting with new laws to address drug-pricing controversies, raising important issues of federalism. (Yet another rock star Stanford fellow, with training in law and philosophy and interests in IP, health law, and corporations. Come meet her if you haven't yet!)
  • Breakout 4 – IP and Innovation
    • Christopher Cotropia – A study of almost 6500 Kickstarter campaigns in patent-eligible categories finds that patent-pending projects are more successful in getting funded than projects with issued patents or with no patents.
    • Camilla Hrdy – Many state and federal "innovation" incentives are in reality designed to promote job creation that has nothing to do with inventiveness. (Not patent specific, but an important contribution to the literature on patent alternatives.)
    • Lucas Osborn – The US should join Europe and Japan in allowing patent claims directly on 3D printable files of otherwise patentable objects.
    • Raphael Zingg & Ludvig Wier – Based on the patent citation network in 662 fields, the more clustered past research is, the higher is subsequent innovation. (For other efforts to study the effect of geographic proximity on innovation, see the NBER Summer Institute papers by Bikard & Marx, Andrews, and Watzinger, Treber & Schnitzer.)
  • Breakout 5 – IP in the Courts
    • Sam Ernst – SCOTUS's most common rationale for reversing in patent cases is that the Federal Circuit ignored its pre-1952 precedent. (If anyone feels inspired to extend my list of Supreme Court patent cases into this period, let me know!)
    • Jyn-An Lee & Dicky Tsang – Different jurisdictions approach choice-of-law issues in FRAND cases quite differently, and choice-of-law clauses have limited effects, but courts rarely state their reasoning.
    • Joseph Miller – Co-citation analysis of SCOTUS IP cases from 1900 to the present shows cases most often cited together. (Not purely patent related, and you can see his slides here.)
    • Shawn Miller – An empirical assessment in changes in venue choices across different patent plaintiff types due to TC Heartland shows a shift in PAE—and only PAE—filings from E.D. Tex. to D. Del. and other districts. (Shawn is another terrific Stanford fellow; for his other interesting empirical papers, including two that have been featured on this blog, see here.)
  • Breakout 5 – Patents (with a focus on § 103)
    • Ryan Abbott – AI will make all patents obvious. (Reviewed here.)
    • Andrew Michaels – Patentable subject matter jurisprudence conflates innovativeness and abstractness, as illustrated by abstract ideas in virtual reality.
    • Ted Sichelman – An empirical study of pre- and post-KSR obviousness decisions shows the Federal Circuit has shifted much less than the district courts.
    • Ryan Whalen & Laura Pedraza-Fariña – A new "network measure of nonobviousness" based on distance from the prior art in "technological space" can be used to aid claim assessment without hindsight bias. (IPSC participants interested in algorithmic measures like this might also be interested in Jonathan Ashtor's paper—also in Breakout 5, but a different time slot, so you could see both—and in the Patent Quality session in Breakout 6.)
  • Breakout 5 – Patent Practitioners
    • Wissam Aoun – From the 19th to early 20th century, socioeconomic trends shaped the professionalization of patent agents, and lessons from the first Industrial Revolution inform what a modern democratized patent agent profession may look like in light of AI and other disruptions.
    • Jonathan Ashtor – An algorithmic measure of patent novelty based on linguistic analysis of claim text is validated against established novelty proxies and actual USPTO rejections. (Noted by Michael Risch on this blog here.)
    • Jeanne Curtis & Christopher Buccafusco – It makes no sense to require design patent prosecutors to have a science/engineering background, and it likely impacts women's access to the profession. (Jeanne was my supervising partner when I summered at Ropes & Gray, and she recently left private practice to lead the Cardozo-Google Patent Diversity Project.)
    • William Gallagher – Semi-structured interviews with patent prosecutors are used to understand what they actually do.
  • Breakout 5 – Innovation and Health
    • Robin Feldman – Combining litigation records and other reports illustrates competitive distortions in the health care market.
    • Michael Mattioli – Ethnographic tools reveal the idiosyncratic ways that innovative assistive technologies have developed.
    • Ana Santos Rutschman – Vaccine development is supported by both patent strategies and new public-private partnerships. (Related to Amy Kapczynski's work on the flu network.)
    • Laura Vidal – The Mexican government cannot comply with its immunization schedule due to limits on pharmaceutical firms' capacity to conduct research.
  • Breakout 6 – Patent Big Questions
    • Dan Burk – State constitutions whose protections extend beyond those offered by the federal First Amendment can alter or prohibit certain patent assertions.
    • TJ Chiang – Patents can restrict free speech just like copyrights and trademarks without corresponding doctrinal safeguards.
    • Greg Reilly – Arguments that Congress cannot depart from long-standing features of the patent system cannot sound in originalism (because such features developed in the mid-19th century) and are instead based on living constitutional theories.
    • David Taylor – The United States and Europe have different histories of morality as a basis to deny patent eligibility.
  • Breakout 6 – IP and International Economic Development
    • Margaret Chon – Public-private partnerships are used in global governance structures in which IP is explicitly connected to other development goals.
    • Su Li & Shi Chen – Analysis of 444K patent applications filed by U.S. inventors in China shows that patents with more claims and more forward citations are more likely to be approved, whereas patents with more backward citations are less likely to be approved.
    • Arul Scaria – A survey of science researchers in India shows the extent to which they have adopted open science practices; survey results are here.
    • Joy Xiang – For cleantech collaborations between developing and developed countries to be successful, the collaboration needs to be mutually benefiting and to not ignore IP rights.
  • Breakout 6 – Patent Quality
    • David Abrams – For pharmaceutical patents, citations are strongly correlated with technological impact, correlated with private value (but elasticities are small), and only somewhat correlated with consumer value.
    • Colleen Chien – Comparing 100K applications filed at the EPO and USPTO and using the EPO as a benchmark reveals new ways to measure patent quality.
    • Glenn Woroch, Mark Rodini & Thomas Varner – Forward citation ratios (forward citations scaled by average forward citations for similar patents) are correlated with other patent quality metrics but only weakly with royalties.
    • Andrew Torrance & Jevin D. West [canceled] – A worldwide network of over 200M patent citations shows how patents organize at subcommunity scales.
As noted above, there are also patent- and innovation-focused papers on non-patent-focused panels that will be summarized in upcoming posts. In particular, watch for papers by Toshiko Takenaka in Breakout 2 – IP History and Theory, Stefania Fusco et al. and me & Andrew Tutt in Breakout 6 – IP and Academic Institutions, and Rachel Sachs in the Closing Plenary.

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