Table of Contents

Patent Tigers: The New Geography of Global Innovation

Jonathan Barnett, USC Gould School of Law

Innovation in the European Digital Single Market: The Role of Patents. Thematic Report on the Brussels Conference, 17 March 2015

Chryssoula Pentheroudakis, IP consultant/Lawyer

The Investment-Related Aspects of Intellectual Property Rights

Peter K. Yu, Texas A&M University School of Law

The Complexity of Conversing About Entrepreneurship, Innovation, and Antitrust

Peter Carstensen, University of Wisconsin Law School

Boundedly Rational Entrepreneurs and Antitrust

Avishalom Tor, Notre Dame Law School, University of Haifa - Faculty of Law

The View from the Shop — Antitrust and the Decline of America's Independent Businesses

Stacy Mitchell, Independent


Editorial Notes

ERPN is sponsored by the Ewing Marion Kauffman Foundation http://www.kauffman.org/research and provides an online community for entrepreneurship research from all academic disciplines and the users of that information. SSRN is very pleased to work with the Kauffman Foundation in this important and growing area of scholarship.


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"Patent Tigers: The New Geography of Global Innovation" Free Download
USC Law Legal Studies Paper No. 16-31
USC CLASS Research Paper No. CLASS16-29

JONATHAN BARNETT, USC Gould School of Law
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It is widely argued that international extension of the patent system hinders innovation and growth in developing countries by restricting access to technological inputs. I re-examine the connection between patents, innovation and development by assessing the extent to which the U.S. patent regime supports R&D investment by firms in certain emerging market countries. Based on USPTO data covering all utility patents issued to U.S. and foreign inventors (a total of 6,122,217 patents issued to inventors resident in 188 countries and territories) during 1965-2015, and supplemented by additional data sources, I argue that the U.S. patent system has supported innovation in a cluster of foreign countries that have developed rapidly and dramatically since the 1980s. The increase in the proportion of foreign (and especially, East Asian) innovators in the USPTO patentee population is so large that it accounts for much of the significant increase in USPTO patent issuance that has commonly been attributed to policy changes by U.S. courts and the USPTO. Within this expanded foreign patentee population, three smaller and late-developing countries are now (together with Japan) the most intensive foreign users of the U.S. patent system on a per-capita and per-GDP basis: Israel, South Korea and Taiwan. Based on entity type, industry type and other salient characteristics of the leading “first-named? assignees of USPTO patents in Israel and Taiwan during 2000-2015, and supplemented by other evidence relating to these countries’ innovation capacities and performance, I argue that these countries rely on USPTO patents to extract value from their R&D investments by supplying product or process inputs to the global value chains that connect innovation sources with commercialization sources on the pathway to target consumption markets. While prior work has presented evidence that patents sometimes promote entry into technology markets by upstream R&D firms that lack downstream production and distribution capacities, this paper extends that rationale and presents evidence that patents can promote entry into technology markets by economies that are rich in intellectual and human capital but have small domestic markets in which to extract returns on that capital. For those countries, the patent system (or at least the U.S. patent system) is an aid, not a hindrance, to development.

"Innovation in the European Digital Single Market: The Role of Patents. Thematic Report on the Brussels Conference, 17 March 2015" Free Download
Innovation in the European Digital Single Market: The Role of Patents. Thematic Report on the Brussels Conference, 17 March 2015, Luxembourg: Publications Office of the European Union, 2015

CHRYSSOULA PENTHEROUDAKIS, IP consultant/Lawyer
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The Institute for Prospective Technological Studies of the Joint Research Centre (JRC) organised the Conference "Innovation in the European digital single market - The Role of Patents". This conference aimed to provide reliable evidence based on patent data analysis to support European innovation policies for a Digital Single Market.

The advancement of the digital economy in Europe does not only bring unmatched opportunities, but also a series of challenges in the area of intellectual property rights. This is particularly true for the patent system which has to strike the right balance between providing incentives for research and development investments while enabling at the same time the dissemination and re-use of technological knowledge. The difficulties of striking this balance are most apparent in the field of Information and Communications Technologies (ICT), where standardization and interoperability are important for the implementation of a Digital Single Market.

In order to pin down the role of patents in the new digital economy, it is important to look at the broader economic, legal, technological and policy context and achieve a better understanding of what is at stake in the current dynamics. It is a volatile landscape marked by patent wars, high litigation costs, overlapping rights, hold-up scenarios in the field of standardization and radical market shifts deriving from convergent technologies and emerging platform-centric business models. Against this background, the stakes are high with regards to many issues: interoperability, reasonable and timely access to key technologies and technical knowledge, legal certainty, unfettered competition and a secured return on investment in research and development.

"The Investment-Related Aspects of Intellectual Property Rights" Free Download
American University Law Review, Vol. 66, 2017 Forthcoming
Texas A&M University School of Law Legal Studies Research Paper No. 16-35

PETER K. YU, Texas A&M University School of Law
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From the debate among presidential candidates on whether the United States should ratify the Trans-Pacific Partnership (TPP) Agreement to the arbitrations Philip Morris and Eli Lilly have sought through the investor-state dispute settlement (ISDS) mechanism, the investment-related aspects of intellectual property rights have recently garnered considerable policy, scholarly, and media attention.

This growing attention, to some extent, has brought back memories about the time when the WTO TRIPS Agreement began to transform intellectual property law by redirecting our focus to the trade-related aspects of intellectual property rights. Whether the recent developments on the investment front represent yet another paradigm shift in intellectual property law remains an important academic and policy question.

To address this question, the present article critically examines the investment-related aspects of intellectual property rights, including the use of ISDS to address international disputes involving intellectual property investments. It begins by exploring the growing trend of using investment law and fora to set international intellectual property norms. It further evaluates the ISDS mechanism, examining both its strengths and weaknesses.

This article then examines the various upgrades that the TPP investment chapter has provided to the ISDS mechanism. It further outlines the conceptual and institutional improvements that could make ISDS even better than the mechanism provided in the TPP Agreement. The article concludes by exploring whether the TPP ISDS mechanism has provided any silver linings if it is to be adopted without modification.

"The Complexity of Conversing About Entrepreneurship, Innovation, and Antitrust" Free Download
Antitrust Law Journal, Forthcoming

PETER CARSTENSEN, University of Wisconsin Law School
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Laying out the competition policy issues relevant to the complex challenges of promoting entrepreneurship and innovation requires broad strokes and generalizations. Moreover, the range of issues invites confusion as to goals and terms. What is impressive about Bert Foer’s chapter is how well it covers the need for a common language to understand the competition policy issues that are given extensive and focused consideration in this book. In my view, one of the most important insights from the focus on innovation and entrepreneurship is that market dynamics make competition policy much more important but also much less certain. Moreover, positing a policy goal of promoting innovation and entrepreneurship affects how important parts of competition law should be interpreted. It also identifies a potentially significant role for competition policy as a means of defining the scope of other legal regimes that directly affect innovation.

"Boundedly Rational Entrepreneurs and Antitrust" Free Download
Antitrust Bulletin, Vol. 62, 2017 Forthcoming

AVISHALOM TOR, Notre Dame Law School, University of Haifa - Faculty of Law
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This chapter examines entrepreneurial activity and its implication for policy and antitrust law from a behavioral perspective. In particular, the analysis here focuses on the role of two sets of behavioral phenomena — overconfident beliefs and risk- seeking preferences — in facilitating boundedly rational entrepreneurship. Boundedly rational entrepreneurs may engage in entrepreneurial activity, such as the starting of new business ventures, under circumstances in which rational entrepreneurs would decline to do so. Consequently, overconfident or risk-seeking entrants compete with their more rational counterparts and create a postentry landscape that differs markedly from the picture assumed by traditional economic accounts of entrepreneurial activity. The behaviorally informed analysis of entry sheds new light on the dynamics of competition among entrepreneurs and on its implications for policy and antitrust law.

"The View from the Shop — Antitrust and the Decline of America's Independent Businesses" Free Download

STACY MITCHELL, Independent

Small businesses have declined sharply in both numbers and market share across many sectors of the economy. There is evidence that this decline is owed in part to anticompetitive behavior by dominant firms, which have used their market power to disadvantage smaller competitors and exclude new entrants. These abuses have gone unchecked because of changes in the ideological framework guiding antitrust enforcement. About thirty-five years ago, policymakers came to view maximizing efficiency, rather than maintaining fair and open markets for all competitors, as the paramount goal of antitrust. There are at least three reasons to bring a commitment to small businesses and fair markets back into antitrust policy: small businesses deliver distinct consumer benefits; they contribute to a more equitable distribution of income and opportunity; and they safeguard democracy.

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