10 Tweets on Recent IP Scholarship

For blog readers who aren't on Twitter, here are 10 recent Tweets on IP-related scholarship that caught my eye. As I transition from clerking back to full-time academia, I'm debating the extent to which I will go back to writing longer posts about recent articles; feel free to email me (ouellette@law.stanford.edu) with comments.

Top 32 Experienced IP Scholars by (m)-index

After Dan Burk calculated the top IP scholars by h-index using Scholarometer, several scholars suggested to him that it would be interesting to normalize the results by seniority (because the h-index has a known seniority bias). Some bibliometricians have done this by using the m-index: the h-index over the years since the first publication. Because many legal scholars publish an early law review note well before beginning their academic careers in earnest, Burk decided to use a modified m-index: the h-index over the years in full-time law teaching.

Robert Cooter: "Growth Economics" and Intellectual Property Rights

I had the wonderful opportunity to participate in the George Mason University School of Law's Law and Economics Center's (LEC) Economics Institute for Law Professors for two weeks in Steamboat, Colorado, along with fellow IP scholars Sharon Sandeen, Amy Landers, Crystal Sheppard, and Ryan Holte. It was a special treat to hear Berkeley Law's Robert Cooter talk about how law and economics can be applied to intellectual property law. Cooter presented his new book, The Falcon's Gyre: Legal Foundations of Economic Innovation and Growth (2013) (w/ Aaron Edlin), which I'll discuss in this post.

Love Surveys University Researchers on Patenting

While there have been extensive debates about patenting federally funded research under the Bayh-Dole Act, there is little evidence about what the researchers themselves think of this regime. Professor Brian Love (Santa Clara Law) has tackled this problem with a survey of electrical engineering and computer science professors, and he describes the results in Do University Patents Pay Off? Evidence from a Survey of University Inventors in Computer Science and Electrical Engineering (forthcoming Yale J.L. & Tech.). Love sent an email survey to all 2,387 tenure-track faculty in the top 20 ECE and CS departments (as ranked by U.S. News), and his 269 respondents were highly representative based on measurable characteristics. Here are some of his findings:

10 New IP Papers

For blog readers who aren't on Twitter, here are 10 recent IP papers that caught my eye.

John Golden: Is the USPTO Entitled to Chevron Deference?

This is a guest post by Ben Picozzi, a J.D. Candidate at Yale Law School.

Is the U.S. Patent and Trademark Office (PTO) entitled to Chevron deference? Does this matter? Many commentators believe that courts’ failure to grant Chevron deference to the PTO’s interpretations of substantive patent law renders it powerless as a policymaking institution. As previously discussed on this blog, Arti Rai and Melissa Wasserman have argued that the America Invents Act (AIA) changes this by granting adjudicatory or rulemaking authority to the PTO over substantive questions of patent law, including the standards of patentability, and consequently interpretive authority.

Top 31 IP scholars by h-index

Scholarometer is a citation-analysis tool developed by researchers at Indiana University Bloomington. It mines Google Scholar data to generate a scholar's h-index: the maximum number of articles h such that each has received at least h citations. (It also computes the h_s-index, which normalizes an h-index by the discipline average, which is 14.8 for law.)

Seaman: The case against federalizing trade secrecy

In his new article, The Case Against Federalizing Trade Secrecy, forthcoming in the Virginia Law Review, Chris Seaman does what the title suggests: he makes the case against federalizing trade secrecy protections and challenges the wisdom of current proposals in this direction. I'll quickly summarize the article and then make a few points. In general, I found the article highly educational and think Seaman makes a compelling case that federalization would be an unnecessary legal innovation.

Merges: An Essay on the Legacy of Chisum on Patents

Robert Merges originally wrote this essay, previously unpublished, on the thirtieth anniversary of Chisum on Patents: A Treatise on the Law of Patentability, Validity and Infringement (1978-present). Merges has generously provided Written Description with a copy. In the essay, Merges discusses the world of patent law scholarship in the 1970s and the significant effect Chisum's treatise had within the patent community.

Amy Kapczynski on the Future of "Beyond IP" Scholarship

I was thrilled to participate this past Sunday in the Innovation Law Beyond IP Conference at Yale Law School hosted by the Information Society Project (ISP). The list of attendees included Mark Lemley, Amy Kapczynski, Yochai Benkler, Lisa Larrimore Ouellette, John Golden, Hannah Wiseman, Rebecca Eisenberg, Michael Abramowicz, Sean Pager, Jessica Silbey, Pam Samuelson, Barton Beebe, Ian Ayres, Brett Frischmann, Mark McKenna, Bryan Choi, Frank Pasquale, Tal Zarsky, Julie Cohen, Margot Kaminski, Michael Burstein, Bhaven Sampat, Brian Wright, Jonathan Masur, Dan Burk, Liza Vertinsky, Roger Ford, Sean O’Connor, Jim Bessen, Talha Syed, Arti Rai, Orly Lobel, Mario Biagioli, Rochelle Dreyfuss, Ann Bartow, Kiel Brennan-Marquez, Nicholson Price, David Grewal, and the ISP's own Jack Balkin.

#BeyondIP Blog Symposium

On Sunday the Yale Law School Information Society Project is hosting our Innovation Law Beyond IP conference, at which I'll be moderating the plenary session and presenting Beyond the Patents-Prizes Debate (coauthored with Daniel Hemel). Participants have been blogging about the conference papers at Balkinization, and you can see my summaries of some of these posts here, here, and here. Here is a list of all the blog posts, organized by conference panel. (I will update this list as more posts are added, including after the conference.)

#BeyondIP Blog Symposium: Burstein & Murray, Masur, Lobel, Pasquale, and Zarsky

Since my prior two updates, we have five new posts in the Innovation Law Beyond IP blog symposium. First, Michael Burstein and Fiona Murray described their new paper on Governing Innovation Prizes. They note that real-world prizes are different from those modeled in the economic literature, and they begin to remedy this empirical gap through a case study of the Progressive Insurance Automotive X Prize.

New Article: Deference Mistakes

Professor Jonathan Masur and I have posted a draft of our new article, Deference Mistakes, on SSRN. This article is more trans-substantive than my prior work, but it still has a significant IP angle. Here is the abstract:

This Article begins with what should seem a relatively straightforward proposition: it is impossible to fully understand the holding of a case without understanding its “deference regime”—the standard of review or burden of proof that governs the case. If a court holds in the context of a habeas petition that a constitutional right was not “clearly established,” that does not mean that the court would hold that the right does not exist were it writing on a blank slate. If a court refuses to invalidate a granted patent, which is presumed valid and can only be held invalid upon a showing of clear and convincing evidence, that does not mean that the court believes the patent should have been granted in the first place. And if an appellate court holds that a trial court’s ruling was not “plain error,” that does not mean that the appellate court believes the trial court necessarily reached the correct result or would have affirmed the ruling if the review were more searching.

Yet in case after case, we find that judges (and their clerks) confuse one deference regime for another or ignore deference entirely. In so doing, they make what we term deference mistakes. Courts in standard criminal cases regularly rely upon habeas precedents holding that a federal right was not “clearly established” to conclude that the right does not exist. The Federal Circuit and the Patent and Trademark Office regularly rely on precedents involving granted patents (which are presumed valid) to justify granting new patents (which are not entitled to that presumption). And courts of appeals regularly rely upon “plain error” precedents to justify holdings in cases where the standard of review is less deferential.

Although the problem of deference mistakes cuts across legal doctrines, it has been neither identified nor described in prior scholarship. Our article presents a multitude of examples of deference mistakes in practice and explains why they are likely to occur. Deference mistakes may seem relatively innocuous, particularly if they are confined to individual cases. But that appearance is misleading. We develop a theoretical model of how deference mistakes, coupled with particular asymmetries in adjudication, can generate systematic shifts in legal doctrine. Deference mistakes may have contributed to the current patent crisis by adding to the proliferation of bad patents. They may also be partly responsible for retrenchment in the law of constitutional criminal procedure rights or the pro-employer shift in employment discrimination law. After analyzing the potential for deference mistakes to affect the long-term evolution of the law, we discuss potential solutions.

We welcome your comments and suggestions!

#BeyondIP Blog Symposium: Golden & Wiseman, Vertinsky, Pager, and Silbey

Following up on my opening post and our first four contributions, we have another four posts in the Innovation Law Beyond IP blog symposium at Balkinization. First, John Golden and Hannah Wiseman describe their paper, The Fracking Revolution: A Case Study in Policy Levers to Promote Innovation, which will be presented in our "Comparing Innovation Policy Levers" along with my paper with Daniel Hemel. Golden and Wiseman's study of public policies behind the fracking boom reveals a "complex backstory [that] features multiple significant roles for government action" including "government-funded R&D, tax and regulatory relief, and a FERC-sanctioned surcharge on interstate gas that financed the private Gas Research Institute." While a case study does not provide "universal truths," it does reaffirm the government's capacity to use a diverse policy mix. "The relatively modest role of patents in the story behind the shale gas boom suggests that, under appropriate circumstances, a mix of alternative policy levers can substitute for the benefits often thought to be supplied by patents."

#BeyondIP Blog Symposium: Hrdy, Bessen, Frischmann & McKenna, and Cohen

Four new posts in the Innovation Law Beyond IP blog symposium at Balkinization! First, Camilla Hrdy describes her paper Local Commercialization Incentives, which she has also blogged about here. In this paper, Hrdy questions whether proposals for "commercialization patents" would actually be preferable to the many "commercialization awards" that national and local governments already provide through direct financing, and she also contributes to the federalism literature by arguing that such awards may be better administered at the local level.