I revisit one of the earliest administrative functions of the United States government, the granting of patents, to show why the U.S. Patent Office fits so poorly with the contemporary model of an ...Executive Branch agency in the modern Administrative State. In parallel with other early "proto-agencies" the Patent Office participated in the most important job of the new national government: economic development. Because of the importance of this policy, and the limited power of the new federal government, Congress, courts, and the executive branch emphasized concerted action rather than separation of powers. The Patent Office had been performing its basic function for nearly one hundred years when the modern "administrative revolution" began its sweep though the federal government. The modern administrative state was created to counterbalance the emergent power of large, concentrated industries; it had little relationship to the original Patent Office mandate from Hamiltonian times. As a consequence, contemporary administrative law is a poor fit for the Patent Office. Administrative law, especially the Administrative Procedure Act ("APA"), governs power relations between federal agencies and the industries they regulate, with courts often acting as referee. But the Patent Office grants government-sanctioned property rights to dispersed inventors in an extremely wide variety of industries, and lets private investment, transactions, and enforcement take over. Since its founding the Patent Office has been charged not with regulating concentrated industry, but with handing out a small dollop of state power to dispersed parties in the form of individual property rights. Although some features of the modern administrative apparatus surely apply to the Patent Office it is overall best left to the looser-fitting understandings of the Hamiltonian economic development state.
In this brief Essay, I celebrate the legendary (yet still ongoing) career of Professor Wendy Gordon in the way I think she would appreciate best: by using some of her pioneering ideas to theorize ...about intellectual property ("IP") rights. My topic is the development of IP rights over time. I am interested not only in the conceptual roots of IP law but also in that moment when the roots push through the crust of soil to form trunk and branch-the moment of emergence: When does a normative legal intuition bloom into a full-fledged property right? How do fundamental common-law principles come to be expressed in complex statutory property grants? Starting from Gordon's marvelous 1992 article on the "restitutionary impulse" behind IP law, I explore these aspects of IP's origin story. The right of publicity is a typical instance of the birth of a property right from common-law origins. I revisit the famous Haelan Labs case, which was central to the development of the publicity right. This case pushed forward the legal recognition of exclusive rights in celebrity images and serves (for many) as the generative source of publicity rights as a form of property. In keeping with some of Gordon's observations in her article On Owning Information: Intellectual Property and the Restitionary Impulse, I explain why the holding in Haelan Labs responded both to fairness concerns and to some felt necessities of the era. Among those necessities was the growth of postwar advertising and celebrity culture. This in no small part explains the impulse to compensate the ballplayers in the Haelan Labs case and to do so in particular by conferring on them a full-fledged (and fully alienable) property right. I then carry this an extra measure by arguing that Gordon's observation about judicial intuition and common-law extension is related to Harold Demsetz's well-known theory of property. From this point of view, Gordon has described one specimen in a larger set: those legal adjustments that take place when the value of an asset has increased. Though Gordon herself might well object to some features of this simple functionalist account, I for one see her as having contributed to it in an important way.
The proper specification of intellectual property rights (IPRs) is a delicate and controversial matter. In this paper, we consider one specialized context in which IPRs can add to efficiency. We ...build on contributions of both ‘firm capabilities’ scholars (e.g. Teece, Pisano et al.) and ‘property rights’ economists (e.g. Hart) to show that IPRs can affect efficiency by influencing the location of technological innovation. Using a simple set up, where the key choice is whether a technology-intensive input will be supplied by an independent firm or produced in-house, we analyze how the choice is affected by the strength of IPRs and by the existence (and nature) of information spillovers. Specifically, we show that when the supply relationship is likely to produce new information of value to the supplier, stronger property rights favor independent suppliers over vertical integration. An important implication of our model (backed by empirical case studies) is that strong IPRs therefore encourage investments in specialized firms with strong ‘firm capabilities’ in the area of innovative input supply. IPRs therefore may play a role—along with multiple other factors—in the location of firm boundaries in some cases. This contribution to the viability of small, specialized firms, with their superior ability to innovate in some cases, must be taken into account in evaluating recent criticisms of over-fragmented IPR ownership (i.e. the ‘anticommons’ problem). It also contributes to an understanding of IPRs in the ‘post-Chandlerian’ economy, where smaller, specialized firms play a prominent role.
In a sophisticated defense of intellectual property, Merges draws on Kant, Locke, and Rawls to explain how IP rights are based on a solid ethical foundation and make sense for a just society. He also ...calls for appropriate boundaries: IP rights are real, but they come with real limits.
We examine the determinants of control rights in biotechnology alliances through three case studies and a quantitative analysis. Aghion and Tirole 1994 argue that control rights will be assigned so ...as to maximize the value of the final output, as long as the R&D firm has sufficient financial resources. Consistent with this framework, the allocation of control rights to the R&D firm increases with the firm's financial resources. The empirical evidence regarding the relationship between control rights and the stage of the project at the time the alliance is signed is more ambiguous.
This is a response to the commentary by Professor David H. Blankfein-Tabachnick ("B-T") on my book, Justifying Intellectual Property (JIP) (2011). In JIP, I describe IP law at three levels: ...foundations, midlevel principles, and specific doctrines and institutions. At the bottom are foundational justifications for the field, ultimate rationales for why a society would have an IP system. In JIP, I explain why utilitarianism—the traditional standard-bearer in the IP field—has failed as a viable foundation. I argue instead for a more deontological foundation, built on the insights of Locke, Kant, and Rawls. At the same time, I recognize that a good number of my colleagues do not share my doubts about utilitarianism, and that they continue to recognize it as the ultimate basis of IP law. I also acknowledge that various scholars have argued persuasively for alternative foundations based for example on traditional religious precepts. Given this level of disagreement, I turn in JIP to what I call "midlevel principles." These are common themes and tropes that pervade case law and policy discussion in the IP field. The four principles I discuss (proportionality, efficiency, nonremoval or public domain enhancement, and dignity) are consistent with a wide range of divergent foundational commitments. These principles serve as a common language, permitting pluralistic foundational commitments while facilitating analysis and argumentation at the level of basic policies. Midlevel principles facilitate discourse between committed utilitarians, believers in a Talmudic basis for IP law, Kantians, and so on. Finally, at the top of the analytic structure in JIP is the level of specific rules, doctrines and institutions—the everyday surface features of the world of IP discourse. B-T makes two basic points about JIP. He says that I am wrong to argue that midlevel principles are independent of foundational commitments. And he says that my midlevel principles are not quite right because they do not adequately explain specific case outcomes, including several he uses as examples. On the first point, I argue in this response that B-T misreads some of the texts on which I ground my deontological rationale for IP law. In particular, I reject his argument that Rawls's concern with distributive justice cannot be reconciled with the property theories of Locke and Kant. As I do in JIP, I argue that viable IP protection (based on Locke and Kant) is well within the range of fair institutional structures that reasonable agents might agree upon in the original Rawlsian position. And on the second point, I argue that B-T misconceives the role of midlevel principles. They are not superdoctrines that control specific case outcomes, but instead conceptual themes that permeate the field, tying together discrete and disparate areas of doctrine and practice. I point out that echoes of these themes can be found in the very cases B-T chooses to illustrate his critique. I also elaborate a bit on how we should think about midlevel principles in IP law. Empirically, they are common themes and tropes found throughout IP cases and policy discussions. But conceptually, they can be thought of as the product of an overlapping consensus in the spirit of the later Rawls.
A New Dynamism in the Public Domain Merges, Robert P.
The University of Chicago law review,
12/2004, Letnik:
71, Številka:
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Journal Article
Recenzirano
Many believe intellectual property has overreached, and that policymakers must respond. In this Essay, I argue that the critique may have merit, but private parties are in some cases taking matters ...into their own hands. Firms and individuals are increasingly injecting information into the public domain with the explicit goal of preempting or undermining the potential property rights of economic adversaries. Biotechnology firms invest millions of dollars in public domain gene sequence databases, to prevent hold-ups by firms with patents on short gene sequences. Major software firms fight entrenched rivals by investing millions of dollars, contributing to open source operating systems. In both cases, property-preempting investments (PPIs) are made to offset the effects of competitors' property rights. Individuals and nonprofits are joining in too, with initiatives such as the Creative Commons project. All of these major private investments in the public domain reveal a self-correcting feature of the intellectual property system that has been overlooked until now, and signal that public lawmaking is not the only arena in which the excesses of intellectual property may be addressed.
The goal of this Article is to partially defend patent law's absolute liability rule. Most scholars question the utility of absolute liability, which makes it irrelevant whether an infringement ...defendant copied from the patentee or independently invented the patented invention. This Article draws from two literatures in making a defense. First, it looks to studies of how technological information is communicated or "diffused." These studies, together with research by psychologists on "inadvertent copying," demonstrate that ideas are sometimes copied in obscure and subtle ways, leaving little or no evidence that copying has indeed occurred. Next, the Article turns to the literature on optimal standards of care in tort law, which is used to describe what would happen if U. S. law changed to require patentees to show copying. Potential patent infringement defendants—a class that includes virtually all people and companies performing research and development—might well impose strict limitations on receipt of technological information. This would help rebut allegations of copying, reducing the risk of legal liability. Such strict limitations would stifle innovation because technological communities thrive on ubiquitous and unregulated communication. Patent law, as it stands, encourages communication by making proof of copying irrelevant in patent cases. As a consequence, researchers (as potential patent infringement defendants) currently have no reason to restrict their access to technical communications. To further support the case for absolute liability, this Article looks to both copyright law and common law rules on the theft of ideas. Both require proof of copying, and both have led potential defendants to invest in restrictive measures designed to prove that they had no access to third party ideas. By requiring only proof that the infringer is using an invention covered by the patentee's claims, patent law dispenses with the need to prove that the infringer copied from the patentee. This means that researchers have very little incentive to protect against receipt of outside information. Potential infringers get no payoff from disproving contact with a patentee because the reduced incidence of copying that would follow from lack of contact is irrelevant under patent law. No one invests in restricting contact, and information flows freely. The obvious downside of the current regime is that sometimes, an infringement defendant will really be a true independent inventor; no copying, subtle or otherwise, took place. In these cases, as the literature shows, absolute liability imposes significant costs. These costs must be weighed against the benefits of information freely shared under the current absolute liability regime. It is hard to say how the costs and benefit net out. Under these circumstances, a recent innovation in U.S. patent law, the new "prior commercial use" defense under the America Invents Act (AIA), may prove helpful. This defense permits one who can prove early commercialization of an invention to avoid liability, even though he or she otherwise infringes. Because commercialization before a patentee's filing date will often be associated with independent invention, this rule reduces some of the costs of the absolute liability standard. It is difficult to say whether this combination of (1) absolute liability, plus (2) an exception for early commercialization, provides the optimal set of incentives for potential patent infringers. But at least the prior commercial use rule encourages activity that has independent social value, i.e., rapid introduction to the market. Given the real benefits to the longstanding rule of absolute liability in patent law, providing an exception under these circumstances makes for a reasonable policy.
In Bilski v. Kappos, the US Supreme Court made it official: people live in the Information Age. Information's paramount economic significance is now undeniable. In the century's first decade, ...intangible assets were estimated to account for as much as three-quarters of the value of publicly traded companies. Related to this predominance of "conceptual" assets, public policymakers and private actors now widely recognize innovation -- a form of "information in action" -- as vital to economic growth. Focus on information and innovation inevitably leads to concern with intellectual property. This symposium issue presents scholarship that aspires to push forward understanding of how IP functions and how it might improve. In view of the complex, diverse, and ever changing environments in which new information develops, definitive answers on IP's performance and design cannot be expected anytime soon.
As intellectual property rights have gained in prominence, businesspeople and scholars alike have complained of the increasing burden of obtaining intellectual property licenses and, failing this, ...litigating intellectual property disputes. Intellectual property experts, especially scholars, have responded to this burgeoning thicket of rights with a series of initiatives to expedite deal making by means of statutory compulsory licensing. These licenses are classic examples of "liability rulesh" in the foundational legal entitlements framework of Guido Calabresi and A. Douglas Melamed. They appear to be a compromise: they address the mushrooming transactional hurdle created by new and stronger intellectual property rights, while preserving most of the economic advantages that accompany strengthened rights. In this Article, Professor Merges argues that proposals to create more compulsory licenses are rooted in a faulty theoretical framework. Based on a survey of the diverse institutions various industries have cultivated to handle intellectual property transactions, Merges contends that "repeat players" (individuals and firms that frequently need to exchange rights) can and often do take steps to overcome transactional bottlenecks. Whether through copyright collectives, such as ASCAP and BMI in the music industry, or undertakings such as patent pools in automobile and aircraft manufacturing, those with a recurring need to transact in intellectual property rights invest in administrative structures that lower the costs of exchanging rights. Among other functions, these collective rights organizations promulgate rules and procedures for placing a monetary value on members' property rights. They thus conserve on transaction costs either by making it easier to identify and locate rightholders, or by creating the occasion for repeat-play, reciprocal bargaining, versus more costly one-shot exchanges. Drawing on a body of academic literature known as the new institutional economics, Professor Merges explains and analyzes the origins and operation of these organizations. He also argues that entitlement theory must be adjusted to recognize the possibility that such institutions will evolve out of a background of strong property rights. More generally, he points out that entitlement theory ought to incorporate a more dynamic understanding of the importance of contracting after entitlements are granted. Professor Merges applies his observations and theoretical insights to an important contemporary controversy: whether Congress ought to legislate a compulsory license for digital content needed by the multimedia industry. He argues that it should not. Given the underlying economics, and consistent with experience in other industries, existing intellectual property rights will force industry participants to invest in institutions to conduct transactions. Indeed, consistent with the analysis in this Article, evidence indicates this is already occurring.
