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Abstract:
Current international patent rules strike an uneasy balance between conflicting views about patents. The precarious nature of this balancing act is illustrated by the recent heated debate about the conditions under which compulsory licenses will be available for certain essential medicines under the Trade Related Aspects of Intellectual Property (TRIPS) agreement. That debate produced a compromise that will do little to fix the essential medicines problem.

This paper argues that the recent debate was misplaced because it ignored differing elasticities of demand between developed and developing country markets. Demand elasticity is a primary driver of the utility of patent rules. If demand is inelastic, strong patent protection allows the patent owner to charge a price premium and the social cost of the patent monopoly is minimized. If demand is elastic, however, the justification for strong patent protection evaporates. In a demand elastic market, the patent owner cannot sustain supercompetitive pricing, and the social cost of such pricing is high.

This paper argues that the level of patent protection in developing countries is irrelevant when there is inelastic demand and a relatively large market in developed countries. The author supports this argument with a game theory analysis of the essential medicines debate. The author's analysis shows that, at least with respect to essential medicines for which there is strong demand in developed countries, the level of patent protection in developing countries makes no difference. The author concludes that the international patent system governing such products should allow greater flexibility for generic imitator competition in developing country markets.

patents, international patent law, international law, Doha, TRIPS, essential medicines, orphan drugs, international orphan drugs, AIDS, game theory, pharmaceutical patent

Abstract:
Open source offers an interesting alternative to government control or private bargaining over rights to a commons. Open source production, however, will not occur on any significant scale absent certain conditions. Certain types of software have been developed effectively through open source methods because the projects were divisible and granular and the roots of the necessary social structure existed in early "hacker" communities and copyright license models were adaptable to support open source norms.

Biotechnology, however, is different. The information commons rhetoric often applied to open source software and the Internet fails to withstand scrutiny when applied to biologically based technologies. "Information" can no longer be defined as an independent entity that can be possessed equally by infinite users. Instead, "information" is context-dependent. This is particularly true of biologically-encoded information, which affects direct change in an organism. Under a context-dependent definition, there are economic, social, and biological aspects of rivalry connected to an information resource. A truly open information commons therefore is an unobtainable myth.

Because information is in some sense rivalrous, there must be some method of allocation. Collective management by way of open source development is appealing, but biotechnology lacks the sort of community that would make it feasible. In particular, the classical and neo-classical story of science as a homogenous, cooperative enterprise that is being corrupted by private property rights does not correspond to reality. Science, and in particular biotechnology, was and will be rife with competition and gamesmanship.

Given these circumstances, a Coasian approach suggests that private property rights should lead to bargaining that will, over time, efficiently allocate the information resources. Many of the transaction costs that have been identified as barriers to such bargaining should not pose insurmountable problems, particularly as players repeatedly interact over the same or similar resources. The most difficult aspect of transaction costs is that of the search costs entailed in defining and clearing multiple rights held by diverse parties under differing intellectual property regimes.

If search costs are a primary barrier to bargaining, the primary aim of biotechnology innovation policy should be to reduce those costs. One way this could be accomplished is to establish a national technology database containing information about proprietary claims, license terms, and license prices. Although this solution would not be perfect, it represents a means of reducing barriers to biotechnology innovation consistent with existing norms.

Biotechnology, patent, open source, commons, anticommons, semicommons, intellectual property

Abstract:
This paper analyzes "reverse private attorney general" litigation by intellectual property owners against individuals, using the RIAA file sharing litigation as a model.

In this article, I coin the phrase "reverse private attorney general litigation" to refer to aggregated claims by well-resourced plaintiffs against multiple individual defendants. There are numerous cultural, technological, and legal factors that suggest that reverse private attorney general litigation will become and increasingly important tool for enforcing intellectual property rights. In fact, in the recent Grokster decision, Justice Bryer noted that RIAA's litigation against end-users serves as a "teaching tool" concerning intellectual property rights. My reading of the Supreme Court's Grokster decision suggests that this statement is more prescient than Justice Breyer likely realized: Grokster's intent-based standard will not inhibit P2P technology over the long term, and RIAA and other content providers will continue to sue end users directly.

My review of the RIAA litigation includes an empirical analysis of the litigation's effect on file sharing norms, including a regression analysis of P2P connectivity data. This analysis strongly suggests that the RIAA litigation has failed to change file sharing norms. Instead, file sharers have been steadily migrating to less centralized networks, resulting in a significant overall increase in file sharing activity. I argue that these data reflect how the norms of file sharing exist in symbiosis with the norms of open source file coding. This relationship results in a technology that evolves resistance to litigation threats.

After describing the RIAA litigation, I discuss whether any of the traditional justifications for private attorney general actions support reverse private attorney general litigation in the intellectual property context. These justifications include the advocacy of important social causes, balancing the interests of minority groups against well-funded majorities, aggregating small claims that would not otherwise have been filed, and providing a fail-safe against regulatory capture. I conclude that none of these justifications support the RIAA litigation or other forms of reverse private attorney general intellectual property litigation. I then discuss several alternatives to such litigation, and conclude that a mixed market, levy, and private utility model would better reflect public norms about intellectual property.

copyright, p2p, peer-to-peer, norms, copynorms, mass litigation

Abstract:
The shape of patent law is changing. Surprisingly, one of the most significant of these changes is rooted in the arcana of how damages are calculated for patent infringement. Current reform proposals before Congress, which are hotly contested by major technology-rich industries, would radically alter the shape of the patent grant by requiring courts to tease out the "economic value" of the claimed invention as compared with previously existing technology. This paper responds empirically and theoretically to this attempt to reshape patent law through the back door of damages.

Advocates of the damages reform proposals cite empirical evidence that patent verdicts are growing excessively large. This paper reviews the existing empirical literature and presents an original study of patent verdict data obtained from the Administrative Office of the Courts. The literature review and original study presented in this paper suggest that the empirical arguments made by reform advocates are largely misplaced.

This paper also examines the theoretical underpinnings of the remedial structure for patent infringement. It discusses a string of recent Supreme Court opinions in which patent law appears to be moving from a property rule towards a liability rule of remedies.

Finally, the paper examines two key factors that have been ignored in the existing patent reform debate: price elasticity of demand and risk. Theoretical models are presented that demonstrate why attempts at reform should focus on shifting towards a restitutionary model of patent damages, with a possible premium for risk.

patent, remedies, damages, empirical, reform proposals, apportionment

Abstract:
In this essay, I hope to move information policy towards firmer normative ground by introducing the resources of critical realism and environmental virtue ethics to intellectual property scholarship.

Culture, like the natural environment, will flourish if well-tended and collapse if polluted and despoiled. The cultural environmentalist movement is right to compare human culture to the natural environment, but it strips the environmental metaphor of any normative force when it depicts culture as an infinitely malleable social construction.

Critical realism (as distinguished from critical legal studies) is a broad philosophical and epistemological approach that avoids the extremes of modern positivism and postmodern skepticism. A critical realist perspective suggests that culture, like the natural environment, can be shaped by human activity only within the limits established by the external reality in which we find ourselves. Those limits can be embodied in virtues and practices similar to those that the field of environmental virtue ethics has found helpful in reference to the natural environment.

The essay concludes with an application of these ideas to the network neutrality debate.

network neutrality, cultural environmentalism, romantic author, information theory, jefferson, cybernetics, constructivism, cyberspace

Abstract:
This article presents a novel historical and philosophical critique of the prevailing view among intellectual property theorists that information is best modeled as a non-rival economic resource. The article traces the prevailing view about information back to the philosophers and scientists whose thought dominated the Eighteenth Century Enlightenment - particularly Francis Bacon, Isaac Newton, and John Locke. In fact, one of the enduring metaphors for the non-rival nature of information - Thomas Jefferson's candle - depends on a view of "nature" drawn directly from Bacon, Newton and Locke.

It is surprising that this metaphor endures. Contrary to the Enlightenment project, the epistemology and ontology that informs the notions of "cyberspace" and the "information commons" are non-foundationalist and constructivist. Indeed, the predominant postmodern critique of intellectual property revolves around the social construction of the "romantic author." This paper demonstrates, however, that Claude Shannon's mathematical information theory fuels the trope that information is a sort of "code" that can be abstracted from any context and freely shared without diminution. The aphorism "code is law," then, represents a curious mix of Enlightenment and postmodern thought.

This mix does not work well. It leads to a groundless pragmatism pitted with intractable empirical lacunae. The article proposes instead a critical realist perspective on the socially rivalrous aspects of information. This perspective recognizes that information has a real relation to an external reality and yet, at the same time, that information is both socially constructed and a tool of social construction.

The paper demonstrates that the law recognizes how information plays precisely such a community-constructive role in areas outside "hard" intellectual property law and cyberlaw. In particular, the law of trade secrets, insider trading, and pre-contract disclosures regulates the socially rivalrous aspects of information. The article then suggests that information policy should attend to virtues and practices that enhance human flourishing in communities constructed by rivalrous information, using the network neutrality debate as an example.

intellectual property, romantic author, new chicago school, network neutrality, virtue ethics, critical realism, intellectual property clause, cyberspace, open source, information

Abstract:
This essay sketches out a virtue ethics/virtue jurisprudence approach to biotechnology intellectual property policy.

The debate over biotechnology intellectual property policy seems intractable. Instrumentalists dicker about how to tweak incentives in order to produce the best mix of innovation and disclosure, without stepping back to ask whether the consequentialist approach is best on a broad scale. Hegelians seem to have little to say about biotechnology, given that researchers seem to bear little resemblance to the artists and poets who most obviously pour their personalities into their work. Postmodern critics offer some trenchant critiques of the current system, but suggest few alternatives that could be realized in contemporary biotechnology.

Perhaps the biotechnology "thicket" has as much to do with these conflicting underlying philosophies of intellectual property as it does with individual patent rights that must be cleared to conduct research in this field. Virtue ethics may illuminate a path forward. By situating biotechnology as a community dedicated to human flourishing, and focusing on the practices that move that community ever towards its goal, the assumptions and language we use to describe biotechnology intellectual property policy may begin to change. As these assumptions begin to change, perhaps a move towards a more open community of biotechnological science will also become more tractable.

intellectual property, open source, open science, open access publishing, biotechnology, virtue ethics, virtue jurisprudence, aristotle

Abstract:
This paper examines the problem of 'reverse payment' settlements in patent litigation under the Hatch-Waxman Act. A reverse payment settlement involves a payment from a branded pharmaceutical company to a generic manufacturer, usually in return for the generic manufacturer’s agreement to delay market entry. Federal appellate courts, regulatory agencies and commentators are divided about the legality of such agreements. This paper argues that the importance of product market definition has been overlooked in existing treatments of the issue. The paper develops an empirically-based 'Settlement Competition Index' that could be used by courts and regulatory agencies to evaluate reverse payment settlements. A formula to calculate the Settlement Competition Index is provided and tested with hypothetical and real-world examples.

patent, antitrust, reverse payment, Hatch-Waxman, ANDA , paragraph IV, pharmaceutical

Abstract:
The article provides a game theoretic political economy analysis of efforts to encode "open source" and "open access" intellectual property norms into public policy via the international intellectual property system. My game theory models are unique in that they account for three factors that previously have been overlooked in the literature: price elasticity of demand, the feasibility of open source production of a given technology product, and network effects.

This analysis suggests that the focus of some "open" intellectual property advocates on direct efforts to enact open source and open access norms into law has in some respects been misplaced. Based on my game theory models, I propose several new approaches towards a more open intellectual property system, including an "aperture" model of patent disclosure and a "regulatory" framework for copyright in scientific publishing, which might represent a tighter fit with the political economy of intellectual property.

intellectual property, open source, open science, open access publishing, game theory, political economy, TRIPS, WIPO