Cultural Cognition of Patents

I just posted a new essay, Cultural Cognition of Patents, which is forthcoming in IP Theory. Here is the abstract:

Simply making empirical progress is not always enough to influence policy, as demonstrated by the polarized public discourse over issues ranging from climate change to gun control. The current discourse over patents appears to have a similar pathology, in which cultural values—such as respect for strong property rights or concern about limiting access to knowledge—shape priors and affect the weight given to new information, such that advocates and policymakers on both sides of the patent wars often fail to acknowledge the ambiguity of existing evidence. In this Essay, I suggest that the “cultural cognition” framework might help scholars to understand this value-based division and to study ways to design and communicate patent experiments so that the resulting knowledge has the impact it should.

Nicholson Price II: Making Do in Making Drugs

"M&M chocolate candies are made with a precision far beyond the capabilities of many drug manufacturers." This is the intriguing opening to a thorough critique of innovation in pharmaceutical manufacturing by Nicholson Price II (Petrie-Flom Fellow), Making Do in Making Drugs: Innovation Policy and Pharmaceutical Manufacturing (forthcoming in B.C. L. Rev.). Although drug discovery "is the focus of a calibrated innovation policy," Price argues that drug manufacturing is typically inefficient and non-innovative for two reasons: high regulatory barriers, on the one hand, and ineffective intellectual-property incentives, on the other.

Kitch & O'Connor: Should Crowdfunding Be Regulated?

"I think I'm here because I wrote an article called The Nature and Function of the Patent System..." This is how Edmund Kitch, Professor of Law at the University of Virginia School of Law, began his talk at a lively panel I attended on Thursday, September 12 at "The Commercial Function of Patents in Today's Innovation Economy," the inaugural academic conference on intellectual property at George Mason University School of Law's new Center for Protection of Intellectual Property (CPIP). Kitch, of course, was referring to his famous article on the role of patents in facilitating commercialization and efficient coordination of research. But patents were not Kitch's topic. Instead, Kitch was here to talk about what he sees as another important mechanism for facilitating commercialization of new ideas and business models: crowd funding.

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 (and I'm happy to be at #4!):

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.