Table of Contents

The Contractual Foundation of Family-Business Law

Benjamin Means, University of South Carolina School of Law

The Surprising Breadth of Post-Grant Review for Covered-Business-Method Patents: A New Way to Challenge Patent Claims

P. Andrew Riley, Finnegan, Henderson, Farabow, Garrett & Dunner LLP, American University Washington College of Law
Jonathan R. K. Stroud, Finnegan, Henderson, Farabow, Garrett & Dunner LLP, American University Washington College of Law
Jeff Totten, Finnegan, Henderson, Farabow, Garrett & Dunner LLP

Five Stages of Patent Grief to Achieve 3D Printing Acceptance

Nicole A. Syzdek, University of San Francisco - School of Law

Going Public After the JOBS Act

Carlos Berdejo, Loyola Law School Los Angeles

How Does Firm Size Moderate Firms' Ability to Benefit from Invention? Evidence from Patents and Scientific Publications

Sharon Belenzon, Duke University, NBER
Andrea Patacconi, University of Aberdeen

Editorial Notes

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"The Contractual Foundation of Family-Business Law" Free Download
Forthcoming Ohio State Law Journal, vol. 75, 2014

BENJAMIN MEANS, University of South Carolina School of Law

Most U.S. businesses are family owned, and yet the law governing business organizations does not account adequately for family relationships. Nor have legal scholars paid sufficient attention to family businesses. Instead, legal scholars operate within a contractarian model of business organization law, which holds that a firm is comprised of a nexus of contracts among economically rational actors. Intimate relationships appear irrelevant except insofar as they affect contractual choices. Indeed, strictly speaking, there is no such thing as family-business law.

This Article lays the foundation for a law of family business by turning the contractarian model on its head: a firm includes not just business contracts, but all bargains among participants that affect the business enterprise. The payoff for including family considerations is two-fold. First, when family obligations introduce uncertainty, as when co-owners of a business divorce, contract offers an explanatory resource for resolving disputes consistent with the parties’ expectations. Second, a contractual conception of the firm can guide the establishment of appropriate default rules for the interpretation and enforcement of family-business bargains.

"The Surprising Breadth of Post-Grant Review for Covered-Business-Method Patents: A New Way to Challenge Patent Claims" Free Download
15 Columbia Science and Technology Law Review 235

P. ANDREW RILEY, Finnegan, Henderson, Farabow, Garrett & Dunner LLP, American University Washington College of Law
JONATHAN R. K. STROUD, Finnegan, Henderson, Farabow, Garrett & Dunner LLP, American University Washington College of Law
JEFF TOTTEN, Finnegan, Henderson, Farabow, Garrett & Dunner LLP

Sued for or threatened with infringement? Companies and innovators sued for infringement over software, Internet, or business-method patents have a new means for quick and relatively low-cost resolution. By using the recently enacted post-grant review procedures at the U.S. Patent and Trademark Office created by the America Invents Act and implemented September 16, 2012, parties can resolve software disputes quickly and relatively cheaply, compared to the rigors of a full trial. While there are never easy answers, these reviews enable many parties not only to lower costs but also to protect their own often-nascent software innovations from predatory suit.

"Five Stages of Patent Grief to Achieve 3D Printing Acceptance" Free Download

NICOLE A. SYZDEK, University of San Francisco - School of Law

3D printing presents unique implications for intellectual property holders. Patent law grants an exclusive right to inventors for a limited time in exchange for a detailed public disclosure of an invention. The underlying goal behind this statutory deal “is to bring new designs and technologies into the public domain through disclosure.? The paradox of the patent system is that the disclosure requirement arguably enables infringement, yet infringement is not common. Until now the patent system’s stability was able to rely on physical limitations that made wide-scale infringement of physical goods infeasible. 3D printing challenges companies depending on patents to protect their non-rivalrous goods as the overhead required to reproduce such goods is minimized. Intellectual property holders will inevitably be intimidated by the development of 3D printing and will want to protect themselves by slowing its expansion or limiting their own exposure. Since intellectual property holders were the same major stakeholders during the Napster disaster that befell the copyright industry, strong parallels exist between the likely future battles in 3D printing and the previous copyright battles against duplication technologies. Using the reaction of the copyright stakeholders for guidance, this Comment speculates as to patent holders’ reactions to the impact of 3D printing on the patent industry, categorizing them into the Kubler-Ross five stages of grief, working through denial, anger, bargaining, depression, and acceptance. To stifle the economic shake-up brought by 3D printing it is necessary for intellectual property holders to begin strategizing on how to approach foreseen business and legal issues.

One solution is for patent holders to adopt a system that makes it easy and affordable for users of 3D printers to access legally licensed CAD design files. A licensing model for CAD files similar to that of iTunes or the Amazon MP3 Store for copyrighted music, would give patent holders an alternative path for generating profit. Creating quality CAD files from scratch is not a piece of cake. Instead of sifting through a CAD file-sharing platform hoping to find a decent upload, it is likely that many users would not object to purchasing an authorized design file that guarantees a quality printed product. New technology always raises questions about current law’s effectiveness in promoting its intended goals. Creation in 3D printing does not simply refer to replication. Rather, creation encompasses taking ideas and altering them to make something better. As 3D printing technology accelerates it is critical for innovation that those who fear change do not stop those who are inspired.

"Going Public After the JOBS Act" Free Download
76 Ohio St. L.J. ___, Forthcoming

CARLOS BERDEJO, Loyola Law School Los Angeles

The Jumpstart Our Business Startups Act of 2012 (JOBS Act) represents one of the most comprehensive overhauls of the securities laws in recent years. The principal legislative goal of the JOBS Act is to improve the access to the capital markets for smaller issuers, which are referred to in the act as emerging growth companies, or EGCs. To accomplish this goal, the JOBS Act seeks to reduce the costs of conducting a public offering and complying with the ensuing reporting obligations by making certain disclosure requirements voluntary for EGCs. This Article examines whether these scaled disclosure rules have increased the number of small issuers conducting an initial public offering (IPO) of their equity securities and the extent to which these issuers have taken advantage of the various exemptions available to them under the JOBS Act.

The evidence presented in this Article indicates that EGCs have increasingly taken advantage of several of the scaled disclosure provisions of the JOBS Act during the course of their IPOs. However, the number of EGCs accessing the public capital markets has not increased as a result. The Article explores two explanations for these seemingly contradictory findings. First, the evidence suggests that the direct costs of conducting an IPO have not decreased for EGCs and that some indirect costs may have increased following the enactment of the JOBS Act. Second, certain issuers that qualify for EGC status (particularly the largest ones) may be choosing to pursue private offerings instead. EGCs that take advantage of the scaled financial disclosure available under the JOBS Act are smaller, younger and more likely to belong to R&D-intensive industries, a pattern supporting the adoption of a more flexible securities regulation framework that allows issuers to select from a menu of disclosure regimes.

"How Does Firm Size Moderate Firms' Ability to Benefit from Invention? Evidence from Patents and Scientific Publications" Fee Download
European Management Review, Vol. 11, Issue 1, pp. 21-45, 2014

ANDREA PATACCONI, University of Aberdeen

Using novel firm?level panel data, this paper investigates how firms' ability to benefit from invention is moderated by firm size. We distinguish between output indicators of applied research using patents versus output indicators of basic research using scientific publications in “hard science? journals. Our results show that the relationship between performance and patents is stronger for small firms than for large firms. By contrast, the relationship between performance and scientific publications is stronger for large firms than for small firms. We also investigate several mechanisms that may be responsible for these firm size effects. Cost?spreading, complementary assets and especially large firm's inertia all appear to exert a significant influence on the appropriability of patented research. Conversely, a key role of published research seems to be that of complementing large firms' marketing and sales efforts.


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.

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