Moretti & Wilson: Do State Incentives for Innovation Work?

Do state incentives for innovation work? As I recently discussed in a short presentation at IP Scholars on August 8, state and local incentives for innovation, from R&D tax credits to competitive awards for research or commercialization, have become increasingly common as states attempt to build regional "clusters" of innovation like Silicon Valley. Due to the importance of proximity and localized knowledge spillovers in generating innovation, in theory, state and local innovation incentives that result in self-sustaining "clusters" of innovation could have significant effects on patenting activity and other measures of innovation.

Introducing New Blogger: Camilla Hrdy

I am delighted to welcome Camilla Hrdy as a new Written Description blogger for the coming year. Camilla is a Postdoctoral Fellow with the Yale Law School Information Society Project, and her research has focused on the role of state and local governments as generators of innovation policy—including the provocative argument that U.S. states can and should offer state patents as a way of incentivizing local innovation and promoting experimentation and bottom-up patent reform. I look forward to hearing her thoughts on recent (or classic) IP and innovation scholarship!

Gugliuzza: How far will the Federal Circuit go?

Does the Federal Circuit really ignore patent policy, as many of the court's judges have claimed?  In The Federal Circuit as a Federal Court, 54 Wm. & Mary L. Rev. 1791 (2013), Paul R. Gugliuzza describes the Federal Circuit's tendency for self-aggrandizement in its relationships with state courts, the PTO, district courts, and regional circuits.  In each of these relationships, Gugliuzza argues, the Federal Circuit has consolidated power by the citing objectives of uniformity and expert adjudication in patent law.

Merges: Classic Patent Scholarship

The next contribution to the Classic Patent Scholarship Project is from Professor Robert Merges at Berkeley Law, another giant in intellectual property law. Merges has authored a number of articles that have already made the "classics" list, as well as others that deserve to be there; for example, Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations, 84 Calif. L. Rev. 1293 (1996), provides an early discussion of transaction costs in IP thickets that is highly relevant to contemporary problems such as "royalty stacking" in the mobile phone wars. Merges also has recently written Justifying Intellectual Property (which was subject to a terrific book club over at PrawfsBlawg), and he is well known to law students as the author of popular intellectual property and internet law casebooks. Here is his list of classics, "some well known and others that may have been lost in the mists of time." There are many suggestions here that have not been mentioned by any of the prior contributors, which I will add to the compiled list.

New IP Scholarship on SSRN

There are far more interesting IP papers posted than I have time to read carefully and blog about, so I thought I'd just highlight some recently posted papers that caught my eye (which I have also tweeted):

Ford on Invalidity vs. Noninfringement

I'm in NYC for the IP Scholars Conference (IPSC) at Cardozo Law, and one of the (many) article presentations I'm really looking forward to is Patent Invalidity Versus Noninfringement (forthcoming in the Cornell Law Review), by Roger Ford (Bigelow Fellow at Chicago, @rford). Ford argues that patent defendants are more likely to argue noninfringement than invalidity, and that this imbalance exacerbates the problem of bad patents. This article is well worth a look, both because it is a fun read (peppered with examples from actual patents) and, more importantly, because the basic insight seems right.

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:

Patent Costs & Benefits

Do the costs of U.S. patents exceed their benefits for publicly traded firms? This is the claim of John Turner, James Bessen, Peter Neuhäusler, and Jonathan Williams in their newly posted working paper, The Costs and Benefits of United States Patents. Bessen's prior work has very strong supporters and detractors, and I suspect the response to this paper will be similarly polarized. But I think it is worth understanding precisely what this paper is attempting to measure—and why, even if Turner et al. are correct that the costs they measure exceed the benefits they measure, this does not imply that we should scrap the patent system (though it may be cause for concern).

Call for Papers: Innovation Law Beyond IP

Next spring (on 3/30/14), the Yale Law School Information Society Project will host a one-day conference, Innovation Law Beyond IP:

Intellectual property law is only one of many legal institutions that can help promote, stifle, or govern knowledge production. For example, government also transfers rewards to innovators through tax incentives, grants, and prizes; regulates innovation through the administrative state (the EPA, FTC, SEC, CPFB etc.); creates legal rules and infrastructures that can help sustain or undermine commons-based production; and influences innovation through law and institutions related to immigration, tort law, education, and more. How do forms of law and governance beyond IP promote innovation, as well as values such as equity, privacy, and democracy? How should these systems be combined, both with one another and with IP law?

As described in the conference announcement, short paper proposals are due by 8/1.

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):