Janis and Holbrook: Who reads patent laws?

What group of people forms patent law's audience?  In the late eighteenth century, patent law's audience reflected the pre-industrialized nature of the country and was composed of a small group of lawyers and inventors.  Today, the audience matches the modern trend of patent law towards increasing complexity.  The contemporary patent audience includes not only a larger group of lawyers and inventors but also information synthesizers like bloggers, journalists, and academics, as well as innovators' corporate management and the ever-expanding USPTO.  The result of patent law's growing complexity, however, is not only a larger audience, but also a larger audience mostly in the dark about the rules governing their activities.  In Patent Law's Audience, Mark D. Janis and Timothy R. Holbrook discuss the problem of patent law's inaccessibility and offer guides for courts to bridge the gap between patent law and its audience.

Fromer: Expressive Incentives in Intellectual Property

Are the current incentive structures in American patent and copyright law reaching their maximum utilitarian potential? In her recent article Expressive Incentives in Intellectual Property, 98 Virginia Law Review 1745 (2012), Professor Jeanne Fromer (New York University School of Law) suggests that traditional reliance on pecuniary interests leaves untapped potential in maximizing the effectiveness of intellectual property law in terms of spurring creativity and invention. She proposes using expressive incentives—incentives reflecting the moral-rights interests of creators—perhaps instead of traditional pecuniary incentives, to optimize intellectual property laws in a utilitarian framework.

Chief Judge Markey and Doctrinal Development

As I wrote in What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings, I think some of the expansion in the bounds of patentability that has occurred since the creation of the Federal Circuit could be explained by systematic effects such as the presumption of patentability (e.g., if the Federal Circuit holds that the challenger to a granted patent has not overcome the presumption of patentability, and then the PTO erroneously relies on that precedent in granting a new patent, which then itself becomes subject to the presumption). But I am skeptical of any account of doctrinal development that considers only these kinds of systematic effects and not the more idiosyncratic influences of individual judges.

Why Stop at Fees? The Case for Making All Patent Losers Pay, and Pay Heavily

Guest post by Professor Jonathan Masur, University of Chicago School of Law

The excellent op-ed published last week by Chief Judge Rader, Colleen Chien, and David Hricik has re-ignited the debate surrounding attorneys’ fee awards in patent cases. This conversation has dovetailed with the renewed focus on patent trolls, spurred by congressional and presidential attention to the issue. Taken together, these issues present the possibility of a productive approach to the problem of patent trolls—and to firms that assert weak patents more generally.

Carrier: Classic Antitrust/IP Scholarship

The next contribution to the Classic Patent Scholarship Project is from Professor Michael Carrier (Rutgers Camden), a leading expert on the intersection of IP and antitrust. His impressive scholarly portfolio includes the influential Unraveling the Patent-Antitrust Paradox, which was cited by the Supreme Court in Bilski and (perhaps less notably) summarized on this blog two years ago. For a thoughtful overview of how patents, copyright, and antitrust can work together to foster innovation, I also highly recommend his 2009 book, Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law (download the introduction or check out this excellent symposium).

Top 10 New IP Paper Downloads

Here's an updated list of the most downloaded IP papers that were posted on SSRN in the past 60 days (with notes about the ones that were not on last month's list):

Abbott: Incentivizing Production of Drug Safety Information

Information about drug safety and efficacy is a public good, and it will thus be undersupplied absent government incentives to close the gap between the cost of producing this information and the private benefit that can be appropriated. Many pages have been written on the best way to incentivize drug development; alternatives to the current patent-centric regime include direct government financing, various prize schemes, and R&D tax incentives. But far less attention has been paid to incentivizing information production after drugs have received FDA approval and are on the market, and as examples such as the withdrawal of Vioxx illustrate, delays in producing information about the safety of new drugs can have important public health consequences. This important issue is tackled in Big Data and Pharmacovigilance: Using Health Information Exchanges to Revolutionize Drug Safety (forthcoming in the Iowa Law Review), by Ryan Abbott (who has an M.D. in addition to being a prof at Southwestern Law School).

Are R&D tax credits the software patent solution?

The Federal Circuit's fractured en banc decision in CLS Bank v. Alice probably pleased only those patent litigators who might benefit from the resulting uncertainty. The case could have provided clear guidance on the "abstract ideas" exception to patent eligibility (and thus the patentability of software), but the court instead issued 7 opinions in 135 pages, with nothing beyond the judgment having the weight of precedent. While there is much to be disappointed in here, I want to highlight a statement on page 12 of Judge Newman's opinion: "No substitute has been devised for the incentive of profit opportunity through market exclusivity."

Crews: The Overreaching of Museums Art Image Copyright Policies

Do copyright and contract licensing policies adopted by art museums to restrict access to reproduced images of original artwork constitute overreaching? In his article, Museum Policies and Art Images: Conflicting Objectives and Copyright Over-Reaching, Dr. Kenneth D. Crews (Adjunct Professor of Law and Director of Columbia University's Copyright Advisory Office), explores the idea that while art museums have legitimate reasons for imposing restrictive policies, the broad and varied requirements often exceed their legal rights under copyright law.

Hrdy: State Patents

Yale ISP fellow Camilla Hrdy has just posted Dissenting State Patent Regimes (IP Theory). Here is the abstract:

Inventors who believe in open innovation should start applying for state patents instead of U.S. patents. Patenting at the state level prevents rivals from obtaining U.S. patents and generates valuable innovation spillovers in other states where the patent has no legal effect. It also creates a unique opportunity to force patent law reform from the bottom up. In exchange for filing fees, inventors can demand patents based on rules that support open innovation, like shorter terms in fast-moving industries, stricter disclosure requirements, or new restrictions on patenting by non-practicing entities. The lobbyists who stymie reform at the national level will have a much harder time blocking reform in all fifty states. Meanwhile, patent law’s dissenters need only one state to start granting patents in order to get courts, the media, and eventually Congress to pay attention.

Galasso & Schankerman: Do Patents Impede Cumulative Innovation?

In their new working paper, Patents and Cumulative Innovation: Causal Evidence from the Courts, economists Alberto Galasso (Toronto School of Management) and Mark Schankerman (London School of Economics) present new evidence on whether patents promote or impede follow-on innovation based on subsequent citations to patents invalidated by the Federal Circuit.

Top 10 New IP Paper Downloads

Here's an updated list of the most downloaded IP papers that were posted on SSRN in the past 60 days:

Liveblogging Posner vs. Epstein at PatCon 3

I'm at PatCon 3 at Chicago-Kent (follow live tweets at #PatCon3), where so far we have heard Judge Linn expressing skepticism about the Supreme Court's role in patent law, a panel of in-house counsel describing their views on the patent system's biggest problems, and a plenary session with Mark Lemley (arguing against jury trials for patent validity), James Malackowski (on IP markets), and David Abrams (on patent value and citations). Below are (very) rough notes on one of the highlights of the day, a debate between Judge Posner and Professor Epstein:

Beyond the Patents-Prizes Debate

Daniel Hemel and I just posted a new draft paper, Beyond the Patents-Prizes Debate, which I'll be presenting on Saturday at PatCon 3 at Chicago-Kent. The article develops a new taxonomy of innovation policies that highlights the overlooked benefits of tax incentives for research activities. We would love feedback and suggestions; feel free to email us at the addresses listed at the top of the PDF. Here is the current abstract:

Classic Design Patent Scholarship

Just in time for Stanford's Design Patents in the Modern World Conference (on Twitter at #designpatents2013), we have a new addition to the Classic Patent Scholarship Project on design patents written by Professor Sarah Burstein (Oklahoma Law). Her scholarship is available here, and she frequently Tweets about design law as @design_law.

It might seem strange to have a list of classic design patent scholarship that consists largely of articles that do not really focus on design patents. But the literature is sparse. And even if it wasn’t, these articles would still be important because they each address issues that we are still debating today—including the fundamental question of how (or if) we should protect designs using intellectual property law.