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Abstract:
Courts and commentators often treat intellectual property as if the private value of the rights stemmed entirely from the control legal rules conferred over the protected subject matter. While the literature has devoted an enormous amount of time, paper, and ink to the discussion of whether or not legal rules grant the optimal amount of exclusivity, it has not considered whether it has been examining all the functions of patents. This Article provides a new general framework for analyzing the function and effect of intellectual property rules. Rather than focusing on patents as a mechanism for privatizing information, this Article instead frames patents as a means of credibly publicizing information. Patents can reduce informational asymmetries between patentees and observers. Under some circumstances, the informational function of patents may be more valuable to the rights-holder than the substance of the rights. The Article presents a model of patents as a signaling mechanism and considers the multiple equilibria that could result from using patents to convey information. If an easily measurable firm attribute such as patent counts is positively correlated with other less readily measurable firm attributes such as knowledge capital, then patent counts can be used as a means of conveying information about these other attributes. Knowing this, firms may choose to obtain and use a portfolio of patent rights to signal information about themselves that would be more expensive to do through other means. Alternatively, firms can use the patent document itself to convey information that would not be as credible when revealed in other contexts. Patent signals can be ambiguous, however, reducing information costs along some margins but raising them along others. The Article concludes by exploring the efficiency implications of patents as informational mechanisms.

Abstract:
Courts and commentators often treat intellectual property as if the private value of the rights stemmed entirely from the control legal rules conferred over the protected subject matter. Indeed this assumption is used to justify the very existence of intellectual property protection. Such an approach frames intellectual property in general, and patents in particular, as an exchange of information for protection. On this view, inventors should be loath to disclose any more information than necessary to obtain patent protection. In this paper, rather than focusing on patents as a mechanism for privatizing information, I instead consider patents as a means of credibly publicizing information. When patents are viewed as means of reducing information costs, patents that appear to be worthless under traditional exclusivity-based conceptions of value may turn out to have positive value after all.

Abstract:
Why do we have more than one form of intellectual property rights? Why are the structures of patent and copyright forms so different? What factors influence the optimal structure of each form? We can move toward addressing some of these enduring puzzles and understanding the effects of the differences between intellectual property forms by examining the presence and distribution of information costs in the propertarian relationship. In this article, I explore the relationship between the nature of protected intellectual goods and differences in the structures of patent and copyright. Intellectual property rules in patent and copyright can make it easier or more difficult for parties to gather and comprehend information regarding protected goods. The literature on the law of organizations has recognized that it is most efficient to align transactions, which differ in their attributes, with organizational forms, which differ in structural ways, so as to minimize transaction costs. I argue that similarly, when intellectual property forms are structured to minimize information costs they are more efficient, all else equal, than when they are not so structured. Examining the presence and distribution of information costs can suggest ways in which we might increase efficiency in intellectual property.

Intellectual property, patent, copyright, information costs

Abstract:
Ever since the creation of federal dilution law, legal commentators have expressed consternation about this variation of the trademark entitlement. Prior to the advent of this form of protection, the owner of a mark could recover for trademark infringement under the Lanham Act only if the commercial use of its mark by someone else caused consumer confusion. By contrast, dilution grants trademark holders an injunctive remedy for the use of their famous marks by another even when consumers are not confused. This Article explores how federal dilution law is actually being judicially enforced. To do so, it examines the enforcement rates of dilution claims in reported cases and in unreported trademark filings. The data show that dilution has not been as powerful a theory of infringement as one might expect. Judicial enforcement of dilution law is not robust today and has been eroding over time. Quantitative and qualitative data derived from published opinions and from trademark infringement filings indicate that after a period of initial broad interpretation and sometimes even enthusiastic embrace of dilution law, courts in recent years have become rather chary of it. The Article next examines some reasons why this might be so and why trademark holders have not fully adapted their pleading practices to these developments. The Article then explores some of the implications of the judiciary's treatment of federal dilution law.

trademark dilution, intellectual property, Lanham Act, FTDA

Abstract:
Scientific research is facilitated by informational externalities. By directing informational flows, intellectual property law creates incentives for researchers to refrain from publishing research results before seeking intellectual property protection, to retain control of information, and to release research results strategically. Open communication and the sharing of research results, on the other hand, is the lifeblood of scientific research. Free riding on others' information or experimental results, so long as proper credit is given, is accepted practice. This Article explores the causes of tension between scientific research and intellectual property law. First, it discusses how both scientific research and intellectual property law have norms and mechanisms for controlling informational flows, although these mechanisms are often at odds. Second, it describes by way of example the brouhaha over the attempt to patent gene fragments and the impact this has had on the scientific community. Finally, it presents and analyzes some factors that can influence the outcome of interactions between the scientific community and intellectual property rights regimes.

intellectual property, patents, norms, science