Lucy Xiaolu Wang on the Medicines Patent Pool

Patent pools are agreements by multiple patent owners to license related patents for a fixed price. The net welfare effect of patent pools is theoretically ambiguous: they can reduce numerous transaction costs, but they also can impose anti-competitive costs (due to collusive price-fixing) and costs to future innovation (due to terms requiring pool members to license future technologies back to the pool). In prior posts, I've described work by Ryan Lampe and Petra Moser suggesting that the first U.S. patent pool—on sewing machine technologies—deterred innovation, and work by Rob Merges and Mike Mattioli suggesting that the savings from two high tech pools are enormous, and that those concerned with pools thus have a high burden to show that the costs outweigh these benefits. More recently, Mattioli has reviewed the complex empirical literature on patent pools.

Economics Ph.D. student Lucy Xiaolu Wang has a very interesting new paper to add to this literature, which I believe is the first empirical study of a biomedical patent pool: Global Drug Diffusion and Innovation with a Patent Pool: The Case of HIV Drug Cocktails. Wang examines the Medicines Patent Pool (MPP), a UN-backed nonprofit that bundles patents for HIV drugs and other medicines and licenses these patents for generic sales in developing countries, with rates that are typically no more than 5% of revenues. For many diseases, including HIV/AIDS, the standard treatment requires daily consumption of multiple compounds owned by different firms with numerous patents. Such situations can benefit from a patent pool for the diffusion of drugs and the creation of single-pill once-daily drug cocktails. She uses a difference-in-differences method to study the effect of the MPP on both static and dynamic welfare and finds enormous social benefits.

On static welfare, she concludes that the MPP increases generic drug purchases in developing countries. She uses "the arguably exogenous variation in the timing of when a drug is included in the pool"—which "is not determined by demand side factors such as HIV prevalence and death rates"—to conclude that adding a drug to the MPP for a given country "increases generic drug share by about seven percentage points in that country." She reports that the results are stronger in countries where drugs are patented (with patent thickets) and are robust to alternative specifications or definitions of counterfactual groups.

On dynamic welfare, Wang concludes that the MPP increases follow-on innovation. "Once a compound enters the pool, new clinical trials increase for drugs that include the compound and more firms participate in these trials," resulting in more new drug product approvals, particularly generic versions of single-pill drug cocktails. And this increase in R&D comes from both pool insiders and outsiders. She finds that outsiders primarily increase innovation for new and better uses of existing compounds, and insiders reallocate resources for pre-market trials and new compound development.

Under these estimations, the net social benefit is substantial. Wang uses a simple structural model and estimates that the MPP for licensing HIV drug patents increased consumer surplus by $700–1400 million and producer surplus by up to $181 million over the first seven years of its establishment, greatly exceeding the pool's $33 million total operating cost over the same period. Of course, estimating counterfactuals from natural experiments is always fraught with challenges. But as an initial effort to understand the net benefits and costs of the MPP, this seems like an important contribution that is worth the attention of legal scholars working in the patent pool area.

Do Patent Laws Affect the Location of R&D?

One of the common complaints about weakening patent protection is that it causes reduced R&D in the country with weakened protection. I've always been skeptical of this claim in the modern era, because one can develop anywhere and import into a location with better protection. As a result, one would expect that patent protection is unrelated to R&D offshoring.

In a draft article called Offshoring Patent Law, Gregory Day (Georgia Business) and Steven Udick (Skiermont Derby LLP) consider this question. Their article is forthcoming in the Washington Law Review and a draft is on SSRN. Here is the abstract:

Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries. However, scholarship has largely dismissed the theory that foreign patents have any effect on where firms invent, considering that patent law is bound by strict territorial limitations (as a result, one cannot strengthen their patent protection by innovating abroad). In essence, then, industry leaders are deeply divided from scholarship about whether innovative firms seek out jurisdictions offering stronger patent rights, affecting the rate of innovation.

To resolve this puzzle, we offer a novel theory of patent rights — which we empirically test — to dispel the positions taken by both scholarship and industry leaders. Since technology is generally developed in one country, the innovation process exposes the typical inventor to infringement claims only in that jurisdiction. In turn, we demonstrate that inventors have powerful, counterintuitive incentives to develop technology where patent rights are weaker and enforcement is cheaper. Given that it typically costs more to defend a patent infringement claim in the United States than to lose one in another country (the cost to litigate a patent in the United States averages around $3.5 million and royalty awards have surpassed $2.5 billion), our empirical research contributes to the theoretical understanding of patent rights by shedding new light on the important, yet largely dismissed, dimension of where innovation takes place.

We received invaluable support from international research organizations and patent attorneys working for top-tier law firms. Notably, the Global IP Project, which is a multinational research group spearheaded by the leading global intellectual property (“IP”) law firm, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, as well as Darts-ip, an international organization dedicated to the study of global IP litigation, provided proprietary data, enabling us to explore whether firms optimize value by placing research and innovation in countries with “better” patent laws. To verify our models, we interviewed notable patent attorneys practicing in the United States, Europe, and Asia.

The primary takeaway from their approach is that not only might the strength of the laws matter, but also the costs of defense. To tell this story, they use Marvell as an example, but that was actually a rare case where the R&D and sales process itself constituted infringement to trigger worldwide sales. I would expect that companies can usually design in the U.S., send designs overseas (see Microsoft v. AT&T), and ship from there. Thus, the more important complaint is that patent enforcement causes manufacturing to move offshore, not R&D.

That said, the article performs a regression on R&D and several variables that might affect R&D like tax rates and human capital density, and finds that costs of defense and damages awards are negatively correlated with R&D, while strength of enforcement is positively correlated. This is all reasonable enough, but I'm concerned that the empirical model is incomplete. Though the word "cost" appears dozens of times in the article, not once is it mentioned with respect to the cost of R&D. Might the reason R&D gets offshored be that it's cheaper? And could cheaper R&D also correlate with lower enforcement of IP? My guess is yes, based on the studies I've read over the years. I would have liked to have seen some analysis and discussion of this point.

While I think this is an interesting paper, I think that the model is underdeveloped in two ways. The first is the focus on costs in only half of the equation. The second is the neglect of trade secret enforcement. Unlike patent law, trade secret laws can affect R&D in the country in which the R&D takes place because the developer can lose value without ever selling into that country. Studies by Lippoldt and Schultz and also by Png demonstrate this pretty well.

For those interested in this topic, I recommend this article, and I recommend a contrast with Bilir, Patent Laws, Product Life-Cycle Lengths, and Multinational Activity, in the American Economic Review. Bilir develops a similar model, but bases it on location of companies (which covers some of the manufacturing issues), and considers the life-cycle of R&D (long term v. short term protection) as well as trade secrets. Bilir does not directly consider costs of defense, so it would be interesting to see how that notion from this new article would overlay onto Bilir.

Matteo Dragoni on the Effect of the European Patent Convention

Guest post by Matteo Dragoni, Stanford TTLF Fellow

Recent posts by both Michael Risch and Lisa Ouellette discussed the recent article The Impact of International Patent Systems: Evidence from Accession to the European Patent Convention, by economists Bronwyn Hall and Christian Helmers. Based on my experience with the European patent system, I have some additional thoughts on the article, which I'm grateful for the opportunity to share.

First, although Risch was surprised that residents of states joining the EPC continued to file in their home state in addition to filing in the EPO, this practice is quite common (and less unreasonable than it might seem at first glance) for at least three reasons:

1. The national filing is often used as a priority application to file a European patent (via the PCT route or not). This gives one extra year of time (to gain new investments and to postpone expenses) and protection (to reach 21 years instead of 20) than merely starting with an EPO application.
2. Some national patent offices have the same (or very similar) patenting standards as the EPO but a less strict application of those standards de facto when a patent is examined. Therefore, it is sometimes easier to obtain a national patent than a European patent.
3. Relatedly, the different application of patentability standards means that the national patent may be broader than the eventual European patent. The validity/enforceability of these almost duplicate patents is debatable and represents a complex issue, but a broader national patent is often prima facie enforceable and a valid ground to obtain (strong) interim measures.

Hall & Helmers on the European Patent Convention's Impact on Patent Filings and Foreign Direct Investment

The Impact of International Patent Systems: Evidence from Accession to the European Patent Convention, which Michael Risch posted about yesterday, caught my eye as well. As Michael explained, economists Bronwyn Hall and Christian Helmers examined the impact on patent filings and foreign direct investment (FDI) for fourteen countries that joined the European Patent Convention (EPC) between 2000 and 2008. (The countries are Bulgaria, Czech Republic, Estonia, Croatia, Hungary, Iceland, Lithuania, Latvia, Norway, Poland, Romania, Slovenia, Slovakia, and Turkey.)

They find only a small change in patenting by a country's domestic entities. Foreign entities, however, rapidly switched to filing at the EPO, causing their filings in national offices to drop by over 90%. This figure nicely illustrates the effect:

There was not a similar change to FDI: "Despite the clear impact on patent filings, using firm-level data on FDI, we find only very weak evidence that non-residents changed their investment in accession countries following accession to the EPC."

Hall and Helmers argue that these results show "the differential effect of accession to a regional patent system on residents and non-residents of the mostly smaller, less developed accession countries in our sample. Non-residents certainly benefit from the expansion of the regional patent system given their strong reaction, but the net effect on residents is a lot less clear." In other words, joining the EPO creates costs for these countries (because there are more foreign patents, with the resulting deadweight loss) without a strong corresponding gain in domestic innovation or FDI.

In his post yesterday, Michael said it wasn't clear to him why we would have expected stronger IP rights to increase FDI, but this has been one of the main arguments for why developing countries might benefit from joining patent treaties such as TRIPS. For just a few of many articles laying out these arguments—and noting the weak evidence base behind them—see the seminal works by Edith Penrose in 1951 and 1973 or the 1998 Duke symposium articles by Carlos Braga & Carsten Fink and by Keith Maskus.

Studying the impact of changes in patent law through cross-country studies is incredibly difficult (as I have previously explained), but I thought this was a nice empirical design with appropriately nuanced conclusions, and it is certainly worth a download for anyone interested in the impact of the internationalization of the patent system.

Some Transparency Into Chinese Patent Litigation

Despite knowing its growing importance in global IP, I've always kept the Chinese patent system at bay in my research. I primarily focus on the U.S. Patent system (which keeps me plenty busy) and, more important, there is very little transparency in Chinese litigation. It's a different language and courts did not routinely report their decisions until very recently.

There's been some movement, though. The language remains the same, but the courts are reporting more decisions.  They are supposed to be reporting all of them, in fact. So Renjun Bian (JSD Candidate, Berkeley Law) has leveraged this new reporting to provide some details in Many Things You Know about Patent Infringement Litigation in China Are Wrong, on SSRN. The good news for me is that I don't really know anything about patent infringement litigation in China, so I'm unlikely to be wrong. But that didn't stop me from reading:

As the Chinese government continues to stimulate domestic innovation and patent activities via a variety of policies, China has become a world leader in both patent applications and litigation. These major developments have made China an integral venue of international patent protection for inventors and entrepreneurs worldwide. However, due to the lack of judicial transparency before 2014, westerners had virtually no access to Chinese patent litigation data and knew little about how Chinese courts adjudicated patent cases. Instead, outside observers were left with a variety of impressions and guesses based on the text of Chinese law and the limited number of cases released by the press. Taking advantage of ongoing judicial reform in China, including mandated public access to all judgments made since January 1, 2014 via a database called China Judgements Online (CJO), this paper analyzes 1,663 patent infringement judgments – all publicly available final patent infringement cases decided by local people’s courts in 2014. Surprisingly, many findings in this paper contradict long-standing beliefs held by westerners about patent enforcement in China. One prominent example is that foreign patent holders were as likely to litigate as domestic patent holders, and received noticeably better results – higher win rate, injunction rate, and average damages. Another example is that all plaintiffs won in 80.16% of all patent infringement cases and got permanent injunctions automatically in 90.25% of cases whose courts found patent infringement, indicating stronger patent protection in China than one might expect.

Yes, you read that right: plaintiffs win 80% of the time and 90% of the winners get a permanent injunction. The win rates are affirmed on appeal most the time. I'll admit that while I didn't know anything, it didn't stop me from having a vision of a place where you could get no relief, but that appears not to be the case. More on this below.

Dinwoodie & Dreyfuss on Brexit & IP

In prior work such as A Neofederalist Vision of TRIPS, Graeme Dinwoodie and Rochelle Dreyfuss have critiqued one-size-fits-all IP regimes and stressed the value of member state autonomy. In theory, the UK's exit from the EU could promote these autonomy values by allowing the UK to revise its IP laws in ways that enhance its national interests. But in Brexit and IP: The Great Unraveling?, Dinwoodie and Dreyfuss argue that these gains are mostly illusory: "the UK will, to maintain a robust creative sector, be forced to recreate much of what it previously enjoyed" through the EU, raising the question "whether the transaction costs of the bureaucratic, diplomatic, and private machinations necessary to duplicate EU membership are worth the candle."

The highlight of the piece for me is that Dinwoodie and Dreyfuss give numerous specific examples of how post-Brexit UK might depart from EU IP policy in ways that serve its perceived national policy interests, which nicely illustrate some of the ways in which the EU has harmonized IP law. For example, in the copyright context, it could resist the expansion in copyrightable subject matter suggested by EU Court of Justices cases; re-enact its narrow, compensation-free private copying exception; or reinstate section 52 of its Copyright, Designs and Patents Act, which limited the term of copyright for designs to the maximum term available under registered design law. In the trademark context, Dinwoodie and Dreyfuss describe how UK courts have grudgingly accepted more protectionist EU trademark policies that would not be required post-Brexit, such as limits on comparative advertising. Patent law is the area "where the UK will formally re-acquire the least sovereignty as a result of Brexit," given that it will continue to be part of the European Patent Convention (EPC) and that it still intends to ratify the Unified Patent Court Agreement—though the extent of UK involvement remains unclear.

Of course, whether such changes to copyright or trademark law would in fact further UK interests in an economic sense is highly debatable—but if UK policymakers think they would, why would they nonetheless recreate existing harmonization? I think Dinwoodie and Dreyfuss would respond that these these national policy interests are outweighed by the benefits of coordination on IP, which "have been substantial and well recognized for more than a century." Their argument is perhaps grounded more in political economy than economic efficiency, as their examples of the benefits of coordination are all benefits for content producers rather than overall welfare benefits. In any case, they note that coordination became even easier within the institutional structures of the EU, and that after Brexit, "the UK will have to seek the benefits of harmonization through the same international process that has been the subject of sustained resistance as well as scholarly critique, rather than under these more efficient EU mechanisms." While it is plausible that the lack of these efficiency gains will tilt the cost-benefit balance in favor of IP law tailored to national interests, Dinwoodie and Dreyfuss suggest that a desire for continuity and commercial certainty will override autonomy concerns.

With all the uncertainties regarding Brexit (as recently reviewed by John Oliver), intellectual property might seem low on the list of things to worry about. But the companies with significant financial stakes in UK-based IP are anxiously awaiting greater clarity in this area.

Does Europe Have Patent Trolls?

There have been countless articles—including in the popular press—about the problems (or lack thereof) with "patent trolls" or "non-practicing entities" (NPEs) or "patent-assertion entities" (PAEs) in the United States. Are PAEs and NPEs a uniquely American phenomenon? Not exactly, says a new book chapter, Patent Assertion Entities in Europe, by Brian Love, Christian Helmers, Fabian Gaessler, and Max Ernicke.

They study all patent suits filed from 2000-2008 in Germany's three busiest courts and most cases filed from 2000-2013 in the UK. They find that PAEs (including failed product companies) account for about 9% of these suits and that NPEs (PAEs plus universities, pre-product startups, individuals, industry consortiums, and IP subsidiaries of product companies) account for about 19%. These are small numbers by U.S. standards, but still significant. Most European PAE suits involve computer and telecom technologies. Compared with the United States, more PAE suits are initiated by the alleged infringer, fewer suits involve validity challenges, fewer suits settle, and more suits involve patentee wins.

Many explanations have been offered for the comparative rarity of PAE suits in Europe, including higher barriers to patenting software, higher enforcement costs, cheaper defense costs, smaller damages awards, and more frequent attorney's fee awards. The authors think their "data suggests that each explanation plays a role," but that "the European practice of routinely awarding attorney's fees stands out the most as a key reason why PAEs tend to avoid Europe."

Two New Studies Challenge Conventional Wisdom on Chinese Patenting

Foreign firms can't get a fair shake in patent litigation in China, and Chinese firms are filing an exceptional number of low-quality patents in the US—right? Not according to two new empirical papers, each of which seeks to debunk one of these pieces of conventional wisdom.

The first, Patent Litigation in China: Protecting Rights or the Local Economy?, is by Brian Love, Christian Helmers, and Markus Eberhardt, and has already been reviewed on Tom Cotter's excellent Comparative Patent Remedies blog. In short, they analyze five years of patent suits in the courts with the 50 most active IP dockets and find that foreign companies win as often as Chinese patentees.

The second, More than BRIC-à-Brac: Testing Chinese Exceptionalism in Patenting Behavior Using Comparative Empirical Analysis, is by Jay Kesan, Alan Marco, and Richard Miller. They study Chinese patenting trends in the USPTO and find that despite claims of Chinese exceptionalism, these trends are "strikingly similar to the patenting trends of other Far East Asian countries whose inventors have applied for patents in the United States. In other words, Chinese innovation is moving up the value chain in product development much like other Far East Asian countries have done in the past. We also find that China appears to be setting itself apart from other BRICS (Brazil, Russia, India, China, and South Africa) countries in successfully seeking patent protection for technological innovation and in producing products with higher levels of technological sophistication and innovation."

Trade and Tradeoffs: The Case of International Patent Exhaustion

When I read all the briefs for Lexmark v. Impression Products—the en banc Federal Circuit case on patent exhaustion that will be argued Friday—it seemed like there were pieces missing, including related to an article Daniel Hemel and I are working on. So we've written and posted a short Essay about the case, Trade and Tradeoffs: The Case of International Patent Exhaustion. If ten pages is too long, we also have an even shorter guest post up at Patently-O today, Will the Federal Circuit Recognize the U.S.–Foreign Tradeoff in Friday’s Lexmark Argument? Comments welcome!

The Difficulty of Measuring the Impact of Patent Law on Innovation

I'm teaching an international and comparative patent law seminar this fall, and I had my students read pages 80–84 of my Patent Experimentalism article to give them a sense of the difficulty evaluating any country's change in patent policy. For example, although there is often a correlation between increased patent protection and increased R&D spending, it could be that the R&D causes the patent changes (such as through lobbying by R&D-intensive industries), rather than vice versa. There is also the problem that patent law has transjurisdictional effects: increasing patent protection in one country will have little effect if firms were already innovating for the global market, meaning that studies of a patent law change will tend to understate the policy's impact.

It is thus interesting that some studies have found significant effects from increasing a country's patent protection. One example I quote is Shih-tse Lo's Strengthening Intellectual Property Rights: Experience from the 1986 Taiwanese Patent Reforms (non-paywalled draft here). In 1986, Taiwan extended the scope of patent protection and improved patent performance. Lo argues that this change was plausibly exogenous (i.e., externally driven) because they were caused by pressure from the United States rather than domestic lobbying, and he concludes that the strengthening of patent protection caused an increase in R&D intensity in Taiwan.

One of my students, Tai-Jan Huang, made a terrific observation about Lo's paper, which he has given me permission to share: "My first intuition when I see the finding of the article is that the increase of R&D expenses may have something to do with the tax credits for R&D expenses rather than stronger patent protection." He noted that in 1984, Taiwan introduced an R&D tax credit through Article 34-1 of the Investment Incentives Act, which he translated from here:

If the reported R&D expenses by manufacturing industry exceeds the annual highest spending on R&D in the last five years, 20% of the exceeding expenses could be used for tax credit for income tax. The total tax credit used could not exceed the 50% of annual income tax, but the unused tax credit could defer to next five years.

Additional revisions were made in 1987, related to a tax credit for corporations that invest in technology companies, which might indirectly lead to an increase in R&D spending by tech companies. As I've argued (along with Daniel Hemel) in Beyond the Patents–Prizes Debate, R&D tax credits are a very important innovation incentive, and Lo doesn't seem to have accounted for these changes in the tax code. Yet another addition to the depressingly long list of reasons it is hard to measure the impact of patent laws on innovation!

Intellectual Property as Global Public Finance

I wrote the following post for the Balkinization blog symposium for the upcoming Innovation Law Beyond IP 2 conference at Yale Law School, where I will be presenting an early work-in-progress with Daniel Hemel. You can read my post on Balkinization here, and you can see all posts in the symposium here.

The conventional justification for IP is that information is a public good (i.e., it is nonrival and nonexcludable), and making information excludable through IP allows it to be efficiently supplied by private markets. Both sides of this account have been questioned: not all information has the characteristics of a public good or can be made excludable through IP, and propertization is not the only way the state compensates public-goods providers. As Daniel Hemel and I analyzed in Beyond the Patents–Prizes Debate, the state also encourages information production through mechanisms such as tax incentives and direct spending. And one challenge for domestic innovation policy is recognizing that like conventional public finance mechanisms, IP facilitates a transfer from consumers to innovators, and that the off-budget nature of this IP “shadow” tax should not affect the innovation policy choice.

In Intellectual Property as Global Public Finance, Daniel and I examine information production at the global level, where conventional public finance mechanisms are lacking. Many information goods are global public goods (or quasi-public goods), so under the conventional account, global coordination is needed to prevent countries from free-riding on each other’s information production. Global IP treaties such as the TRIPS Agreement help solve this global coordination problem by requiring countries to contribute to the extent that they use the information produced under IP laws (with defection punished by trade sanctions). And in the global context, the off-budget nature of IP laws may be an asset, as it facilitates creation of this stable Nash equilibrium in a way that maps onto very different national public finance regimes.

If this were the full story, one would expect to find little state investment in non-IP innovation mechanisms for which free-riding cannot be prevented. And yet governments at all levels do invest significant resources beyond IP in producing information goods.

Patent Experimentalism

I haven't had much time for blogging recently because I've been writing and revising a new article, Patent Experimentalism, which I'll be presenting at IPSC on August 8. This is still a work in progress, so please send me your feedback and suggestions! Here is the current abstract:

The Federal Circuit & International Patent Law

How do informal interactions between judges shape international IP law? Chief Judge Rader of the Federal Circuit is highly influential in international patent law, but aside from one piece by a former intern of his, I am not aware of any scholarship that has attempted to measure or evaluate this influence. In 2001, then-Judge Rader stated (in a lecture published at 5 Marq. Intell. Prop. L. Rev. 1) that he had "travel[ed] to nearly fifty countries" and discussed patent law "with the judiciaries of many of these countries." He argued that the Federal Circuit has brought "uniformity" to patent law and "driv[en] much of the international marketplace and the dynamic success we are seeing around the world." He has also told this story (reprinted at 21 Fed. Circuit B.J. 331): "Several years [before 2011], our government sent me to China on a mission of importance. In Beijing, I met with the U.S. Ambassador, Sandy Rand, who asked me to encourage the Chinese judiciary to enforce non-Chinese [IP] rights as aggressively as Chinese IP rights."

Chinese IP Law

This is a guest post by Camilla Hrdy (cahrdy@gmail.com), a Visiting Fellow with the Information Society Project at Yale Law School.

Elizabeth Burleson & Winslow Burleson - Innovation Cooperation: Energy Biosciences and Law

Can the world avert catastrophic climate change through sustained legal cooperation resulting in environmentally efficient, sustainable technology? In Innovation Cooperation:Energy Biosciences and Law, Professors Elizabeth Burleson and Winslow Burleson discuss how different organizations must work together to overcome the imminent threats of climate change. The article delves into the international, legal, and societal barriers that prevent the diffusion of climate change technology while addressing the innovative steps that are being taken to overcome these obstacles.

Washington Declaration on Intellectual Property and the Public Interest

What do over 180 experts from 35 countries agree is the most pressing global issue for intellectual property policy? The Washington Declaration on Intellectual Property and the Public Interest, which was formulated at the Global Congress on Intellectual Property and the Public Interest from August 25-27, 2011, reveals that changing the direction of negotiations on intellectual property rights in U.S. trade agreements is that issue. The Declaration criticizes an "unprecedented expansion of the concentrated legal authority exercised by intellectual property rights holders" through recent trade agreements. It calls for new efforts to "re-articulate the public interest dimension in intellectual property law and policy." The Declaration is now open to endorsement and comment.

Fighting Over Green Patents: How To Appease China & India Without Hurting U.S. Business

Tomorrow at the Yale Climate & Energy Congress Symposium, I will be presenting on a Comment I published in the Yale Law Journal last May: Addressing the Green Patent Global Deadlock Through Bayh-Dole Reform. (I also wrote a nontechnical version of this argument for Slate: License To Green: Can We Have Clean Energy and Patents, Too?) Rather than summarizing the whole argument here, I will just point out the three pieces that I think are novel contributions:

1. One way to address global concerns about green patents is by changing the way federally funded green technologies are patented and licensed. A number of articles had recognized that conflicts over IP are contributing to the deadlock in climate change negotiations, but none made the distinction between the patent incentives needed for public-sector and private-sector innovation. I examine the justifications for Bayh-Dole patents as applied to green technologies and conclude that in light of available evidence, patents will impede dissemination of most green technologies.
2. Market segmentation should be used for green technologies. The strategy of allowing strong patent protection in rich countries (to recoup development costs) while allowing broad access in poor countries has been made by scholars, advocates, and universities in the medical context (see, e.g., this policy statement from AUTM and many universities), but I'm not aware of anyone who had extended this argument to green engineering technologies. And market segmentation is even more compelling for green technologies because patent protection is less important for them than it is for pharmaceuticals.
3. Funding agencies should use their ex ante control over who receives federal grants to influence licensing policies. Several scholars, particularly Professor Arti Rai, have looked at the impact that funding agencies can have on Bayh-Dole reform, but their focus has been on the ex post influence of these agencies on technologies that have already been developed. I argue that agencies could influence university licensing more effectively through their ability to determine who receives federal grants in the first place. For example, the National Science Foundation's "broader impacts" criterion could be used to encompass access-promoting licensing policies.

I welcome feedback, either in the comments or by email. And for readers in New Haven, feel free to stop by the symposium!

Kapczynski & Krikorian: A2K in the Age of IP

Concurring Opinions is currently hosting an online symposium on Access to Knowledge in the Age of Intellectual Property, a collection of essays edited by Amy Kapczynski and Gaëlle Krikorian. The book is available for free download or purchase ($15.69 at Amazon).

Access to Knowledge (A2K) is a movement united by a common critique of strong IP laws; Kapczynski explored the interesting political economy of this social mobilization in a 2007 Yale Law Journal article. It has never been clear to me that the diverse actors included under the A2K umbrella are really united by a coherent intellectual theory (or consistently unified interests); but then again, "intellectual property" itself encompasses a diverse (and sometimes incoherent) array of concepts. Access to Knowledge in the Age of Intellectual Property brings together a diverse collection of international A2K activists and scholars. I have only read a few chapters and skimmed a few more, but it seems like a good reference for those interested in the young A2K field. I would particularly recommend Kapczynski's introduction and Yochai Benkler's chapter on the information commons (particularly pp. 226-35).

In the Concurring Opinions symposium, I thought Frank Pasquale drew some interesting parallels between A2K and other reform efforts (like health care), which "run up against the 'irresistible force' of capital flight and demands for increasing returns on investment." I also enjoyed Lea Shaver's use of Google's ngrams to track the historical use of IP terms; she showed, for example, that patents have historically been written about much more often than copyrights or trademarks, and that the concept of "intellectual property" as a coherent grouping has only taken off in the past few decades.