• Selected
• Entire List

Abstract:
Fledgling efforts exist to establish open-source projects in biotechnology. Following copyleft, participants agree that advances in the technology must remain as openly available as the original technology. Such agreements implicate patent misuse, which is defined as an impermissible attempt to expand the scope of the patent. Given that advancements were not part of the teachings of the original patent, restrictions on those advancements may constitute misuse. The proper test for patent misuse is unclear. Therefore, the article applies two possible tests: inconsistency with patent policy and violation of the antitrust rule of reason. The overall effect of open source is consistent with patent policy. Accelerating the moment at which knowledge is widely available to the public is consistent with patent policy's design to bring inventions into the public domain for the public benefit. In addition, although open source biotechnology may decrease some downstream economic rewards, it increases downstream non-economic rewards and increases downstream innovation by exploiting untapped innovation resources that traditional patenting cannot reach. Finally, open source reduces harms of the current patent system by reducing patent thickets and avoiding the short-term restriction of supply anticipated under traditional patent licensing. Similarly, from an antitrust perspective, open source effects are better characterized as increasing rather than reducing supply. The open source group is not trying to restrict the supply of biotech tools but rather increase the supply of such tools by ensuring that the tools remain openly available. Anticompetitive effects also are outweighed by the pro-competitive benefits.

Open source, biotechnology, patent misuse, patents

Abstract:
Difficulties at the intersection of patent misuse and antitrust cannot be eased by requiring the application of antitrust rules to test for patent misuse. Nevertheless, in the last decade, the federal Circuit has altered the doctrine of patent misuse by taking this approach. The Federal Circuit's approach is inconsistent with legislative and judicial precedent and threatens to distort both patent and antitrust law. More importantly, using antitrust rules to test for patent misuse is inadequate because the policies underlying patent misuse are not confined to limiting the types of monopoly harms that antitrust recognizes. This article reviews the history of the doctrine of patent misuse and explores the insufficiency of antitrust analysis for promoting patent policy. Finally, the article describes Reach-Through Royalties, a form of licensing for research tools in the biotech industry, to illustrate the problems inherent in testing for patent misuse by applying antitrust law.

Intellectual property, patent, patent misuse, antitrust, reach-through royalties, reach-through, reach through royalties, reach through

Abstract:
This article offers both an economic and philosophical analysis of modern consumption tax proposals such as the Flat Tax. It demonstrates that, given firm behavior, the proposals are likely to deviate substantially from individual taxation, which can be defined as taxing individuals for the value of what they consume. Although the proposals deviate from individual taxation, the philosophical underpinnings of consumption tax theory rest on individual taxation. The article concludes that if non-consequentialist and weighted welfarists theories of consumption taxation are important, one should choose other methods of implementing a consumption tax. If the design of the modern proposals is important, however, one should acknowledge that the proposals would tax consumption solely to promote overall economic growth.

Abstract:
Biometrics is the science of identifying people based on their physiological and behavioral characteristics. Although biometric science could revolutionize the process of identification, it also raises concerns that should be considered as we enter into more widespread use of the technologies. Concerns about biometrics are particularly important in light of the federal government's project to implement biometric technologies at all points of entry by the end of 2004. Much of the discussion surrounding implementation of biometric technology involves developing rules to ensure reliability of the systems and create appropriate restrictions on the use of the data. This article argues, however, that regardless of how much we invest in establishing standards for reliability of the technology and protections of the data from fraud or improper use, no system will be foolproof. Biometric determinations will be subject to mistakes, fraud, and abuse through human and technological error, both intentional and inadvertent. As a result, we should take this opportunity to develop methods for individuals to review and challenge biometric determinations. In particular, the article suggests a doctrinal framework for challenges to biometric determinations made by administrative agencies.

Biometrics, immigration, airport security, intellectual property, points of entry, terrorism

Abstract:
The relationship between patent law and antitrust law has challenged legal minds since the emergence of antitrust law in the late 19th century. In reductionist form, the two concepts pose a natural contradiction: One encourages monopoly while the other restricts it. To avoid uncomfortable dissonance, the trend across time has been to try to harmonize patent and antitrust law. In particular, harmonization efforts in recent decades have led Congress and the courts to engage in a series of attempts, some aborted and some half-formed, to graft antitrust doctrines onto patent law. These efforts have failed to resolve the conflicts.

This piece argues that the deviations between patent law and antitrust law run far deeper than courts and commentators recognize. The problem isn't just that one encourages monopoly while the other limits it. Rather, patent law and antitrust law often use the same concepts and terminology with differing meanings and contexts. In other words, it may appear that they are talking about the same things, and yet, they are not. Our tendency to assume parallel meanings threatens any attempt to reconcile the two bodies of law. Most importantly, ignoring asymmetries can lead to both under protection and overprotection of patent rights, as well as the improper application of antitrust laws. To highlight the problem, this piece explores a number of examples of differing meanings in hopes of promoting a more subtle understanding of the patent/antitrust terrain.

patent,antitrust, biotechnology, biotech, generic, pharmaceutical, monopoly

Abstract:
One of the most hotly contested issues in the field of intellectual property law concerns the existence, or non-existence, of patent thickets and the extent to which any such bottlenecks may be interfering with research. For decades, scholars warned that problems related to the over proliferation of patent rights would interfere with innovation. In contrast, a growing body of commentary argues that patent thickets are not a problem in modern industries. Either patent thickets do not exist, or if they do, patent thickets do not interfere with the progress of research.

The rhetoric is particularly heated these days because of dramatic changes underway in patent law. Research bottlenecks, or lack thereof, are invoked either in support of or in opposition to such changes, and it is difficult to have a rational discussion when so much seems to be at stake. Stepping back from the rhetoric a bit, this piece suggests that one can sometimes indirectly observe effects, even if one cannot directly measure the extent of a phenomenon. With this in mind, the piece describes three approaches appearing in modern patent markets that are directed at mitigating the effects of patent thickets. These approaches can be described as Open Source, Open Access, and Open Transfer. From our vantage point, we may not be able to see or to measure the depth of the thicket. We can, however, observe the altered growth patterns that give us some indication of where the problems lie.

patent, patent thicket, research, bottleneck, open source, biomedical, biotechnology, biotech, medical, antitrust

Abstract:
The allure of science has always captivated members of the legal profession. Its siren's song has followed us throughout much of American legal history. We look to science to rescue us from the experience of uncertainty and the discomfort of difficult legal decisions, and we are constantly disappointed.

The notion of what constitutes science and what it would take to make law more scientific varies across time. What does not vary is our constant return to the well. We are constantly seduced into believing that some new science will provide answers to law's dilemmas, and we are constantly disappointed.

This essay describes episodes in law's misguided love affair with science across the last two hundred years. Illuminating the tantalizing traps that we fall into repeatedly may help us avoid these paths in the future.

science, jurisprudence, history, society, legal realism, langdell, legal process, critical legal studies, law and economics, history

Abstract:
Twenty-five years ago, Federal courts opened the door to the biotechnology revolution by granting patents on genetic inventions. The nature of such inventions, however, increasingly conflicts with the implications of rules created for mechanical products. In particular, across five disparate doctrines, courts are struggling with the question of whether the definition of a biotech invention should include things beyond the state of the art at the time of the invention. Reaching beyond the state of the art may make sense for mechanical inventions, but it is wreaking havoc in doctrines related to biotechnology. A doorknob is a doorknob, regardless of whether it is made of wood or glass. A doorknob has no parts we can't identify, and there is no hint that the doorknob may be integrating with the door in ways we never dreamed of. Can we really say, however, that an antibody is an antibody, no matter how it works or what materials it is made out of? This article argues that in uncertain arts such as biotechnology, the definition of an invention should be limited to the state of the art at the time of the invention. Granting rights beyond knowledge at the time of the invention projects an enormous shadow across the future and creates untenable results. The temptation to restrain that reach has led to strange doctrinal twists and an unworkable body of law. After twenty-five years of experience, it is time to rethink our view of the proper shape of rights in this realm.

biotech, biotechnology, gene, genes, inherency, written description,enablement,patent

Abstract:
The patent system, as conceptualized in American legal theory, is an exchange. The system begins by offering incentives for individuals to develop scientific advancements and to reveal those advancements to society. In return for the sphere of rights conferred with the patent, society requires inventors to teach others how to practice their invention. This disclosure is frequently described as the quid pro quo, the inventor's contribution in exchange for the powerful patent grant. In the last decade, courts have become embroiled in a dispute over whether the disclosure doctrines contain a separate written description requirement. The intensity of the debate reflects the gravity of the issues at stake. Disclosure has become the vehicle for determining the reach of a patent, particularly in the field of biotechnology. As this role has developed, courts have drawn heated criticism for allowing disclosure to venture beyond the technical realm and into broader questions of sufficiency of the invention. This piece argues that such critics are aiming their fire at the wrong threat. Chaos in the modern disclosure doctrines does not arise because courts are improperly conceptualizing the nature of the disclosure inquiry. On the contrary, the issues addressed in the separate written description doctrine properly reside in the disclosure inquiry and reflect legitimate concerns. The problem, however, lies in the doctrinal approach chosen. The exquisitely complex issues can be resolved by harmonizing disclosure with other areas of patent law and by properly applying traditional disclosure doctrines. A separate written description doctrine is simply unnecessary.

Patent, biotech, biotechnology, written description, Lilly, enablement

Abstract:
Antitrust commentators have struggled to explain why firms engage in leveraging behavior and whether leveraging damages competition. The literature has focused on whether a firm with a monopoly in one market can use leveraging to gain additional monopoly profit from a second market. This article introduces the theory of defensive leveraging. According to the theory, leverage behavior should not be analyzed solely as an attempt to reap additional monopoly profit from a second market. Rather, it may be an attempt to prevent erosion of the primary monopoly. The article analyzes the life cycle of a monopoly and explains how defensive leveraging helps a monopolist extend the life of its primary monopoly by preventing splintering and next generation substitution. The article then applies defensive leveraging theory to three market examples: Microsoft's behavior in the market for Internet browsers, competition between physician and nonphysician health care providers, and Eli Lilly's behavior in the market for cephalosporins.