ENTREPRENEURSHIP & LAW eJOURNAL
Sponsored by the Kauffman Foundation
"Only a Pawn in the Game: Rethinking Induced Patent Infringement"
Santa Clara Computer and High Technology Law Journal, Forthcoming
W. KEITH ROBINSON, Southern Methodist University - Dedman School of Law
A party that causes another to infringe a patent may be liable for induced infringement. Recently, the Supreme Court and the Federal Circuit have interpreted the inducement statute in a way that may be problematic. For example, in a suit for induced patent infringement a plaintiff must show that an accused party had specific intent to cause infringement. The defendant can rebut allegations of induced infringement by showing that he had a good faith belief that he did not infringe the patent. However, a defendantâ€™s good faith belief that the patent is invalid is no longer a defense to inducement. While the accused partyâ€™s actions or conduct could also be relevant, these scienter based inquires indicate that the lawâ€™s current interpretation of inducement focuses primarily on intent.
In response, this article suggests that the current trend in induced infringement analysis places too much emphasis on the question of intent. Further, this article argues that the conduct of an accused party should remain an important influence in the induced infringement determination. Numerous papers have suggested how courts should determine the level of intent required for induced infringement. In contrast, this article asserts that in lieu of further legislative or judicial revision of the intent requirement, many of the challenges in this area can be addressed by understanding the type of inducing conduct that patent law should discourage.
"Permanent Injunctions in Patent Litigation After eBay: An Empirical Study"
CHRISTOPHER B. SEAMAN, Washington and Lee University School of Law
The Supreme Courtâ€™s 2006 decision in eBay v. MercExchange is widely regarded as one of the most important patent law rulings of the past decade. Historically, patent holders who won on the merits in litigation nearly always obtained a permanent injunction against infringers. In eBay, the Court unanimously rejected this â€śgeneral ruleâ€? that a prevailing patentee is entitled to an injunction, instead holding that lower courts must apply a four-factor test before granting such relief. Almost ten years later, however, significant questions remain regarding how this four-factor test is being applied, as there has there has been little rigorous empirical examination of eBayâ€™s actual impact in patent litigation.
This Article helps fill this gap in the literature by reporting the results of an original empirical study of contested permanent injunction decisions in district courts for a 7Â˝ year period following eBay. It finds that eBay has effectively created a bifurcated regime for patent remedies, where operating companies who compete against an infringer still obtain permanent injunctions in the vast majority of cases that are successfully litigated to judgment. In contrast, non-practicing entities almost always are denied injunctive relief. These findings are robust even after controlling for the field of patented technology and the particular court that decided the injunction request. It also finds that permanent injunction rates vary significantly based on patented technology and forum. Finally, this Article considers some implications of these findings for both participants in the patent system and policy makers.
"China's Intellectual Property Protection Strength and its Evaluation â€“ Based on the Accession to Trips Agreement (Agreement on Tradeâ€?Related Aspects of Intellectual Property Rights)"
R&D Management, Vol. 45, Issue 4, pp. 397-410, 2015
WEI LI, Zhejiang University - Ningbo Institute of Technology
XIANG YU, Zhejiang University - Ningbo Institute of Technology
This paper builds China's intellectual property protection strength from the aspects of intellectual property legislation protection strength and law enforcement protection strength, and calculates by using the actual data from 1985 to 2010. The results show that China's intellectual property protection strength has always been enhanced, and Chow test shows that the structural breakpoints appeared in China's intellectual property protection strength in 2001(when China joined TRIPS Agreement). The further Granger causality test shows that the economic development level and technological innovation ability are the factors promoting China's intellectual property protection strength, which, however, has not effectively promoted economic development and technological innovation ability due to the impact of the overall economic development level.
George Washington Law Review, 2015 Forthcoming
D. DANIEL SOKOL, University of Florida - Levin College of Law, George Washington University Law School Competition Law Center
The Robinson-Patman Act protects inefficient competitors rather than consumers. The possibility of a suit brought under Robinson-Patman increases the costs of efficient competitors. As such, Robinson-Patman shifts the benefit of antitrust from consumers to less efficient competitors. The Act is fundamentally in tension with contemporary antitrust policy. This article explores the history of Robinson-Patman, shifts in Robinson-Patman case law, and how the FTC may have aided (or not) the change in legal outcomes of Robinson-Patman cases.
"Copyright for Blockheads: An Empirical Study of Market Incentive and Intrinsic Motivation"
Columbia Journal of Law & the Arts, Vol. 38, 2014
JIARUI LIU, Stanford Law School
Copyright law is widely perceived as the means to promote social welfare by providing necessary incentive for intellectual creation. However, there has been little clarity in copyright literature on how artists actually respond to copyright incentives: What factors motivate artists to create works? How do artists perceive the usefulness of copyright protection? Would artists continue their artistic careers in a world without copyright law? This article contains a systematic study regarding copyright incentives, based on industrial statistics and extensive interviews from the music industry in China, a virtual copyright-free environment featuring one of the highest piracy rates in the world and having forced dramatic transformation of music businesses.
The empirical research indicates three seemingly paradoxical phenomena: While 17.9% of all the musicians in the sample referred to economic benefits as at least part of their motivations for music creation, 97.4% specifically recognized money as being important and helpful for music creation; While 56.4% alleged that copyright piracy did not affect their creative motivations, 72% agreed that copyright piracy does affect music creation; While 53.8% explicitly admitted that they had little awareness or knowledge of copyright, 92.3% indicated that the current level of copyright protection is insufficient and 71.8% suggested that copyright law should provide strong incentives for music creation.
The empirical evidence itself provides compelling explanations for such paradoxes: Even though musicians primarily create music for musicâ€™s sake, copyright law could still supply powerful incentive for music production in a way that not only caters to market demand, but also allows for broader artistic freedom. Copyright piracy that does not necessarily affect musiciansâ€™ intrinsic motivations could nevertheless affect music creation in terms of the time spent on music creation, the volume of investment in music creation, and ultimately the quality of music creation. Most importantly, copyright incentives do not function as a reward that musicians consciously bargain for and chase after but as a mechanism that preserves market conditions for gifted musicians to prosper, including a decent standard of living, sufficient income to cover production costs, and maximum artistic autonomy during the creative process.
"The Impact of Patent Law on Emerging Technology"
Wake Forest Intellectual Property Law Journal Forthcoming
W. KEITH ROBINSON, Southern Methodist University - Dedman School of Law
In the near future, emerging technologies will allow billions of everyday devices to be connected via the Internet. This increasingly popular phenomenon is referred to as the Internet of Things (â€śIoTâ€?). The Internet of Things is broadly defined as technology that allows everyday devices to (1) become â€śsmartâ€? and (2) communicate with other smart devices. It is estimated that the market for smart devices, such as wearables, will grow to $70 billion dollars in the next ten years. Like many other emerging technologies, the entrepreneurs and companies developing these applications will seek patent protection for their inventions. In turn, the current U.S. patent system will present unique challenges for the IoT technologies.
Many of the patent issues that were prevalent for Internet Age inventions will also be of concern with respect to IoT technology. Specifically, IoT technology raises issues concerning patentability, joint infringement and patent quality. This essay provides a brief overview of these issues and concludes that although patentability and divided infringement will present challenges for IoT, they are not insurmountable. Further, the essay concludes that the new United States Patent and Trademark Office (â€śUSPTOâ€?) quality initiatives such as post grant procedures and the business method review will likely lead to the existence of IoT patents of reasonable scope.
In sum, the Internet of Things presents tremendous potential for consumers. In addition, this emerging technology will present patent practitioners, policy-makers and scholars with the opportunity to observe, question and if necessary modify the patent system to promote innovation and continued growth in IoT technologies and applications.
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
To submit your research to SSRN, sign in to the SSRN User HeadQuarters, click the My Papers link on left menu and then the Start New Submission button at top of page.
If your organization is interested in increasing readership for its research by starting a Research Paper Series, or sponsoring a Subject Matter eJournal, please email: RPS@SSRN.com
Entrepreneurship Research & Policy Network (ERPN), a division of Social Science Electronic Publishing (SSEP) and Social Science Research Network (SSRN)
ERPN SUBJECT MATTER EJOURNALS
E. J. REEDY
Please contact us at the above addresses with your comments, questions or suggestions for ERPN-Sub.