ENTREPRENEURSHIP & LAW eJOURNAL
Sponsored by the Kauffman Foundation
"Patent Damages Heuristics"
Texas Intellectual Prfoperty Law Journal, Forthcoming
Minnesota Legal Studies Research Paper No. 16-21
THOMAS F. COTTER, University of Minnesota Law School
In many domains, including law, decisionmakers often resort to heuristics, which others have aptly described as â€śshortcuts that simplify and speed up decision makingâ€? by, for example, â€śignor[ing] some of the available informationâ€? to arrive at â€śadequate, though often imperfect, answers to difficult questions.â€? In this paper, I argue that a patent system that more readily accepts the use of damages heuristics may better serve public policy than one that requires patent owners to substantiate every aspect of their claimed damages with rigorous proof. More specifically, policymakers confronted with the choice between a proposed heuristic and an open-ended, nonheuristic standard (or an alternative heuristic) ideally should choose the proposed heuristic when the sum of the administrative and error costs associated with its use is lower than the sum of the administrative and error costs resulting from the use of the nonheuristic (or alternative heuristic). To be sure, there often may be no easy way to evaluate whether this condition is satisfied â€” due both to the paucity of the evidence and to the fact that the cost one attributes to error depends in part on the value one places on the importance of accurate damages calculations to patent policy. Nevertheless, I will argue that, at least in some recurring situations, policymakers can reach a reasoned conclusion whether or not use of a particular heuristic is likely to improve social welfare; and that, more generally, the patent system would benefit if courts were more mindful of both the necessary tradeoffs to be made in calculating damages and where the gaps in our knowledge lie.
"Overview of Copyright Law"
Forthcoming, Oxford Handbook of Intellectual Property, Rochelle Dreyfuss & Justine Pila, Eds.
Columbia Public Law Research Paper No. 14-518
JANE C. GINSBURG, Columbia Law School
This article offers an overview of copyright in general in common law and civil law countries, with an emphasis on the U.S. and the European Union. It addresses the history and philosophies of copyright (authorsâ€™ right), subject matter of copyright (including the requirement of fixation and the exclusion of â€śideasâ€?), formalities, initial ownership and transfers of title, duration, exclusive moral and economic rights (including reproduction, adaptation, public performance and communication and making available to the public, distribution and exhaustion of the distribution right), exceptions and limitations (including fair use), and remedies. The article also covers the liability of intermediaries, and new copyright obligations concerning technological protections and copyright management information. It concludes with some observations concerning the role of copyright in promoting creativity and free expression.
Vanderbilt Law Review, Vol. 69, 2016
UC Irvine School of Law Research Paper No. 2016-40
DAN L. BURK, University of California, Irvine School of Law
A great deal has been said in recent years about patent disclosure. But to say that there is a disclosure function in the patent system implies that there is non-disclosure functioning in the patent system as well. For some information to be disclosed in a patent, other information must go undisclosed; for some things to be included, other things must be excluded. In this article I review the surprising number of doctrines that allow and encourage patent applicants to remain silent about aspects of their inventions. I find that some silences in patents are inadvertent, while some are deliberate; some are necessary, while some are strategic. I conclude that a combination of such explicit and tacit silences allows patents to function as boundary objects, that is, as artifacts that have sufficiently definite meaning to be useful in disparate social worlds, but which simultaneously are sufficiently ambiguous to become objects of collaboration between disparate social worlds. Because innovation is known to occur when localized knowledge is transferred across social boundaries, this function of the patent document is critical to its stated purpose, and occurs largely because of its open rhetorical spaces. Thus, rather than fixating on enhanced disclosure, I argue that much of the critical work of the patent system can and should occur in the open rhetorical spaces where patents are silent.
"Legislating for Decentralized Marketplaces"
BENJAMIN G. EDELMAN, Harvard University - HBS Negotiations, Organizations and Markets Unit
NANCY LEONG, University of Denver Sturm College of Law
Can San Francisco require Airbnb to ensure that its hosts are registered with the city? Can New York mandate that Uber is liable if its drivers discriminate on the basis of race? Can Congress legislate to ensure that workers who accept gigs through Handy are not penalized as a result of the company's online rating system? New online platforms raise these and similar questions about the proper role of regulation for the new marketplaces that increasingly broker relationships between consumers and service providers.
Meanwhile, in a series of claims, platform operators have argued not only that they should not be found liable under existing statutes and doctrines, but also that legislators may not write new legislation to establish such liability. In this working paper, we assess these claims â€” concluding that certain existing requirements apply and such that such rules are appropriate, and also calling into question platformsâ€™ claims of immunity from proposed new legislation.
About this eJournal
Sponsored by the Kauffman Foundation
This eJournal distributes working paper and accepted paper abstracts in subject matters that concern how the law, broadly conceived, impacts entrepreneurship, small business, growth companies, entrepreneurship within large companies, and innovation policy generally.
The eJournal welcomes research not only on topics of regulation and public policy, but also the law of contracts, contract design, and informal relationships and networks that affect entrepreneurs and may substitute for legal contracts. Topic areas include contract design, judicial interpretation and enforcement of contracts, corporate law, partnership law and choice of entity, family businesses, franchising and joint ventures, intellectual property and licensing, small business regulation, securities law, bankruptcy, and social responsibility and sustainability. The Journal welcomes submissions from scholars in finance, economics, sociology, and other disciplines as well as legal scholars.
Editor: Victor Fleischer, University of San Diego
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