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.

FTC v. Actavis Argument Recap

I attended the Supreme Court argument in FTC v. Actavis today (as I noted in my earlier post previewing the case), which involves when a brand name pharmaceutical company may make a "reverse payment" to a generic company as part of a settlement that delays the generic's market entry. The Court expressed skepticism toward both the pharmaceutical companies' desired hands-off approach (which would find such payments to almost always be within the "scope of the patent") and the FTC's "quick look" approach (which would find such payments to presumptively be antitrust violations). The Court might find middle ground by holding that such settlements, like most antitrust issues, are subject to the "rule of reason."

Academics on FTC v. Actavis

This morning the Supreme Court hears argument in FTC v. Actavis (previously FTC v. Watson), in which the Court will decide when a brand-name pharmaceutical company may offer a "reverse payment" settlement to a generic company in exchange for the generic dropping a patent challenge and staying out of the market. Brand-name companies can use this strategy without triggering an endless stream of generic settlements because the first generic to file a "paragraph IV" certification challenging the brand's patents gets 180 days of market exclusivity before the FDA will approve another generic (unless forfeited), which gives a second generic less incentive to challenge the patents and thus less leverage in extracting a settlement.

Shortcuts for Writing Law Review Articles on a Mac

Mac users, you probably use ⌘ + I for italics all the time, but did you know about ⌘ + K for small caps? I have been focused on finishing some articles lately, which has left little time for blogging, but I thought I'd share some shortcuts and tips that might be useful for other folks writing legal scholarship (patent or otherwise) in Microsoft Word on a Mac.

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:

1. Money from Music: Survey Evidence on Musicians’ Revenue and Lessons About Copyright Incentives, by Peter C. DiCola (see my last most-downloaded post for links)
2. The Federal Circuit's New Obviousness Jurisprudence: An Empirical Study, by Jason Rantanen (Jason posted about this on Patently-O)
3. Orphan Works and the Search for Rightsholders: Who Participates in a 'Diligent Search' under Present and Proposed Regimes?, by David R. Hansen, Gwen Hinze, Jennifer M. Urban (see description by Dave Hasen here)
4. Leistungsschutzrecht für Presseverlage: Müsste Google wirklich zahlen? – eine kartellrechtliche Analyse (Ancillary Copyright Law for News Publishers: Would Google Really Have to Pay? – An Antitrust Law Analysis), by Christian Kersting, Sebastian Dworschak (still at #4, just like last month)
5. A Case for the Public Domain, by Clark D. Asay (argues for public domain approach rather than "copyleft" open licenses)
6. The Invention of an Investment Incentive for Pharmaceutical Innovation, by Shamnad Basheer (advocates an optional "investment protection" regime for drug development, which is similar to prize proposals like the Health Impact Fund except that the government-determined reward is based on a variable-length guaranteed market exclusivity)
7. The HOB-Vín Judgment: A Failed Attempt to Standardise the Visual Imagery, Packaging and Appeal of Alcohol Products, by Alberto Alemanno
8. Rush to Judgment? Trial Length and Outcomes in Patent Cases, by Mark A. Lemley, Jamie Kendall, Clint Martin (based on study of all patent trials over past 11 years, finds juries are more favorable to patentees than judges, length of trial does not affect outcome, and EDTex win rates aren't that different)
9. Ten Years of DG Competition Effort to Provide Guidance on the Application of Competition Rules to the Licensing of Standard-Essential Patents: Where Do We Stand?, by Damien Geradin
10. Fixing Software Patents, by Eric Goldman (nice essay written in connection with Santa Clara "Solutions to the Software Patent Problem" conference; also see my recap here)

Feldman on IP Wrongs

Do we need a new doctrine of "inappropriate uses of intellectual property"? This is the proposal Robin Feldman (UC Hastings Law) makes in her working paper Inappropriate Uses of Intellectual Property—Intellectual Property Wrongs. Her broad new doctrine would (1) allow courts to dismiss suits when the plaintiff has behaved inappropriately; (2) allow courts to craft remedies that account for improper behavior; and (3) create an affirmative cause of action that allows for both damages and equitable relief.