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Strategic Patenting: Evidence from the U.S. Court of Appeals for the Federal Circuit

Yun Hou, National University of Singapore
Ivan P. L. Png, National University of Singapore (NUS)
Xi Xiong, New York University (NYU), Department of Economics

Reading Tea Leaves Differently? A Comparison of the Interpretive Fingerprint of the European Court of Justice and the US Supreme Court in Copyright Law

Frederic Blockx, University of Antwerp Law School, Centre de droit privé, unité de droit économique, Government of the Kingdom of Belgium - Commercial Court, Antwerp


INTELLECTUAL PROPERTY: EMPIRICAL STUDIES eJOURNAL

"Strategic Patenting: Evidence from the U.S. Court of Appeals for the Federal Circuit" Free Download

YUN HOU, National University of Singapore
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IVAN P. L. PNG, National University of Singapore (NUS)
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XI XIONG, New York University (NYU), Department of Economics
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How should businesses adjust strategic patenting to changes in patent law? Theoretically, under particular conditions, if the legal protection of patents is stronger, incumbent businesses would reduce patenting. When the Court of Appeals for the Federal Circuit assumed jurisdiction over patent appeals, it strengthened the legal protection of patents. Importantly, the strengthening varied geographically by judicial circuit. Exploiting these changes as a natural experiment, we find that post-CAFC, patents were more valuable commercially but not technologically superior, businesses reduced patenting, and new entry fell. The reduction in patenting was more pronounced among continuations, larger businesses, and in less concentrated industries.

"Reading Tea Leaves Differently? A Comparison of the Interpretive Fingerprint of the European Court of Justice and the US Supreme Court in Copyright Law" Free Download
in Eleonora Rosati, Handbook of EU Copyright Law (Routledge, Forthcoming April 2021), ISBN 978-0-367-43696-4

FREDERIC BLOCKX, University of Antwerp Law School, Centre de droit privé, unité de droit économique, Government of the Kingdom of Belgium - Commercial Court, Antwerp
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This paper discusses the use of interpretive techniques by the US Supreme Court and by the European Court of Justice in copyright cases. The method of systematic content analysis is used to code the entire body of these cases for the use of any of ten interpretive techniques (or topoi) as identified by MacCormick, Summers and Taruffo. The introductory part discusses the methods used (I), followed by a brief overview of the particularities of both courts (II) as all readers are not necessarily equally familiar with the workings of both courts. The first part consists of a descriptive overview of both case law corpuses (III). In the second part, the rationale behind copyright law in both systems are discussed (IV). The third and main part of the analysis consists of a presentation (V) and discussion (VI) of the statistical analysis performed on the coding of the cases.

It will be shown that both courts use six of the ten interpretive techniques similarly, and four differently: the main differences are to be found in the interpretation techniques that go back to the legislator’s intent. This leads to the conclusion that the interpretation techniques used by both courts fit the underlying, philosophical and thus substantive differences in both systems of copyright law. This insight can contribute to a better mutual understanding of the respective systems across the Atlantic.

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This area includes content that provides quantitative and qualitative empirical and experimental studies of intellectual property, innovation, and related laws (including patent, copyright, trademark, trade secret, and similar forms of protection). The eJournal will focus on papers that report new data and analysis, but will also include papers that review and analyze empirical and experimental papers in these areas.

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INTELLECTUAL PROPERTY LAW EJOURNALS

BERNARD S. BLACK
Northwestern University - Pritzker School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
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RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
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Advisory Board

Intellectual Property: Empirical Studies eJournal

REBECCA S. EISENBERG
Professor of Law, University of Michigan Law School

PAUL GOLDSTEIN
Stella W. and Ira S. Lillick Professor of Law, Stanford Law School

I. TROTTER HARDY
Associate Dean of Technology and Professor of Law, William & Mary Law School

WILLIAM M. LANDES
Clifton R. Musser Professor of Law & Economics, University of Chicago Law School, National Bureau of Economic Research (NBER)

MARK A. LEMLEY
William H. Neukom Professor of Law, Stanford Law School

J. THOMAS MCCARTHY
University of San Francisco School of Law

MARGARET JANE RADIN
Professor, University of Toronto - Faculty of Law, Henry King Ransom Professor of Law, University of Michigan Law School

PAMELA SAMUELSON
Richard M. Sherman Distinguished Professor of Law & Information, University of California, Berkeley - School of Law