Table of Contents

How Do Fab-Spaces Enable Entrepreneurship? Case Studies of 'Makers' Who Became Entrepreneurs

Letizia Mortara, University of Cambridge - Institute for Manufacturing
Nicolas Gontran Parisot, University of Cambridge - Department of Engineering

Are Patent Trolls 'Opportunistic'?

Ted M. Sichelman, University of San Diego School of Law

The Intellectual Property Chapter of the Trans-Pacific Partnership Agreement and Investment in Developing Nations

Krista L. Cox, Association of Research Libraries, Notre Dame Law School

Who Does What in Competition Law: Harmonizing the Rules on Damages for Infringements of the EU Competition Rules?

Caroline Cauffman, Maastricht University, University of Antwerp
Niels J. Philipsen, Maastricht University - Faculty of Law, Metro

Patent Conflicts

Tejas N. Narechania, Columbia University - Law School

A Century of Patent Litigation in Perspective

Ron D. Katznelson, Bi-Level Technologies


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ENTREPRENEURSHIP & LAW eJOURNAL
Sponsored by the Kauffman Foundation

"How Do Fab-Spaces Enable Entrepreneurship? Case Studies of 'Makers' Who Became Entrepreneurs" Free Download

LETIZIA MORTARA, University of Cambridge - Institute for Manufacturing
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NICOLAS GONTRAN PARISOT, University of Cambridge - Department of Engineering
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Fabrication spaces (fab-spaces), such as Makerspace or FabLabs, give access to even the most sophisticated digital manufacturing technologies to ordinary people. Examples are known of entrepreneurs who launched new products developed in fab-labs. To improve the understanding of the circumstances under which individuals could become entrepreneurs, this paper reviewed the experience of 12 individuals who, benefiting from the fab-spaces environment, managed to push forward their entrepreneurial ventures. This research highlights what particular barriers can be lowered by fab-spaces and what are the most important features provided by these environments.

"Are Patent Trolls 'Opportunistic'?" Free Download

TED M. SICHELMAN, University of San Diego School of Law
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A recent and widely received study by Lauren Cohen, Umit G. Gurun, and Scott Duke Kominers finds that non-practicing entities (NPEs) — pejoratively known as “patent trolls? — are “opportunistic? because they target defendants that (1) are cash-rich (particularly compared to practicing entity patentees), (2) operate in industries that “have nothing to do with the patent? in suit, (3) are staffed by small legal teams, and (4) are busy with numerous non-IP cases. Additionally, the authors conclude that defendants that lose in patent litigation with NPEs on average have marked declines in subsequent R & D expenditures, on the order of $200 million per year. On this basis, the authors suggest “the marginal policy response should be to more carefully limit the power of NPEs.? Here, I critique in detail the most recent, publicly available version of this study. I conclude that although the authors’ project is admirable in attempting to comprehensively examine the litigation behavior of NPEs, their dataset is incomplete and unrepresentative, their theoretical model is flawed, and their empirical models are unsound. As such, neither their findings nor policy prescriptions are justified.

"The Intellectual Property Chapter of the Trans-Pacific Partnership Agreement and Investment in Developing Nations" Free Download
University of Pennsylvania Journal of International Law, Vol. 35, No. 4, 2014

KRISTA L. COX, Association of Research Libraries, Notre Dame Law School
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The United States has some of the highest standards of intellectual property protection in the world, though many copyright and patent laws in the United States are limited through balancing provisions that provide exceptions to the exclusive rights conferred by the intellectual property system. The United States has engaged in efforts to raise intellectual property standards worldwide through creation of new global norms, such as through negotiations of free trade agreements like the currently negotiated Trans-Pacific Partnership Agreement.

Higher levels of intellectual property protection may be unnecessary to attract investment in developing countries. In fact, increasing intellectual property standards may actually result in negative impacts on development for low- and middle-income countries. This paper examines the role of intellectual property rules in attracting investment for developing countries. It uses the proposals for the TPP's intellectual property chapter as an example on how higher levels of intellectual property enforcement may harm rather than promote investment.

"Who Does What in Competition Law: Harmonizing the Rules on Damages for Infringements of the EU Competition Rules?" Free Download
Maastricht European Private Law Institute Working Paper No. 2014/19

CAROLINE CAUFFMAN, Maastricht University, University of Antwerp
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NIELS J. PHILIPSEN, Maastricht University - Faculty of Law, Metro
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After a long preparatory process, a Directive harmonizing certain national rules on private enforcement of competition law has been adopted by the European Parliament. In this contribution it is investigated whether harmonization of these rules was desirable and whether the main objectives of the directive, the improvement of the possibilities for victims to obtain damages and of the interaction between public and private competition, are likely to be achieved. With regard to the aim of increasing the possibilities for victims of antitrust infringements to obtain compensation, we can conclude that the Directive indeed increases this possibility, although various obstacles to private action are likely to remain. This includes obstacles in relation to (lacking) possibilities for collective action, the requirement to prove negligence or intent, and rules on disclosure of evidence. With regard to the interaction of public and private enforcement of competition law a crucial issue is finding the right balance between using the leniency program (which the European Commission needs in order to be able to effectively trace cartels) in the public enforcement of competition law and compensating victims via enforcement of private law. Whether the Directive has chosen the most desirable option to achieve this balance is debatable.

"Patent Conflicts" Free Download
Georgetown Law Journal, Vol. 103, July 2015, Forthcoming

TEJAS N. NARECHANIA, Columbia University - Law School
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Patent policy is typically thought to be the product of the Patent and Trademark Office, the Court of Appeals for the Federal Circuit, and in certain instances, the Supreme Court. This simple topography, however, understates the extent to which outsiders shape the patent regime. Indeed, a wide range of administrative actors influence a variety of questions ranging from the standards of patentability to the remedies for infringement through the exercise of their regulatory authority and administrative power.

Although such interventions into patent policy by nonpatent agencies predate the First World War, the PTO and the Federal Circuit have often resisted attempts at regulation by outsiders, and the authority for these agencies to take patent-related action has rarely been clearly articulated. As a result, outside agencies will sometimes avoid such regulation. In other cases, the nonpatent agency’s policymaking process can be costly and inefficient, requiring Supreme Court or congressional intervention. This is true even where patent-related regulation is critical to achieving an agency’s objective. This dynamic has the striking effect of shifting authority away from the nonpatent agency and to patent policymakers, thereby replacing a specific regulatory design with a patent’s generic innovation-inducing incentive.

This article offers a novel description of the ways in which agencies have sought to intervene into questions of patent policy. In particular, the article examines forms of direct and indirect agency intervention, and finds indirect intervention to be more costly yet prevalent. The article thus considers two related paths forward. First, it recommends borrowing from an often overlooked theory of agency authority in order to enable nonpatent agencies to issue patent-related orders that are directly related to their regulatory objectives. Second, where such agency authority may be insufficient, the article suggests that nonpatent agencies should appeal to authorities within the Executive Branch, including the PTO, to give effect to their policy aims before turning to the legislature or judiciary. Such intervention and regulation by nonpatent agencies can be more efficient, and may give rise to a context-sensitive patent regime that is more harmonious with other regulatory goals.

"A Century of Patent Litigation in Perspective" Free Download

RON D. KATZNELSON, Bi-Level Technologies
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When comparing patent litigation rates or their “rarity? across decades, one must take into account the proportion to the actual scale of commercial activities that give rise to patent disputes. Such normalizing scales are preferably national metrics of commercial activity such as (a) the number of patents issued in the year, (b) the total number of patents in force over which disputes may arise, (c) the total number of Federal civil suits, or (d) the economic scale of the Gross National Product (GDP) in real dollars. This paper marshals for the first time information on all patent litigation in Federal district courts spanning almost a century. The patent lawsuit filing information is newly obtained from the Judicial Conference Annual Reports going back to 1937 and further collected from the weekly Official Gazette of the Patent Office going back to 1923. In addition, an estimate for the number of US patents in force in each of the years covered is derived. Using non-parametric statistical tests, it is shown that, with the exception of the AIA-caused litigation anomaly of 2011-2013 explained in the paper, for all four normalizing metrics, patent litigation intensities during this century had not exceeded those experienced during the 20th century. High patent litigation intensities in the 1920s-1930s and the 1960s have been comparable to, if not higher than, those in the 2000s. These litigation activities are thought to be consistent with major shifts in technological developments such as the development of radio and electronics and chemical advances in the 1920s-1930s, the development of semiconductor transistor electronics in the 1960s and the wireless communications and internet-based technologies at the turn of the 20th century.

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