Marquette Intellectual Property Law Review
Volume 22 | Issue 1 Article 1
Volume 22-1 Board of Editors
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Repository Citation Volume 22-1 Board of Editors, 22 Marq. Intellectual Property L. Rev. (2018). Available at: https://scholarship.law.marquette.edu/iplr/vol22/iss1/1
This Prefatory Matter is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion in Marquette Intellectual Property Law Review by an authorized editor of Marquette Law Scholarly Commons. For more information, please contact [email protected]. 40672-mqi_22-1 Sheet No. 1 Side A 05/20/2019 14:43:36
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W ...... 11 AMMONS ight Protection ...... 21 ...... ight Protection S. H S. and Transfer ROPERTY ...... ROGRAM IN ROGRAM IN P P and Solutions ...... 23 ...... and Solutions orking Spaces ademarks ...... 22 ATHANIEL Copyright ...... 17 IN WISCONSIN IN WISCONSIN N UPPORT ) 9/13/2018 11:46 AM S ELETE D NTELLECTUAL I OT ...... N Programs ...... 19 19 Programs ...... O INNOVATION IN WISCONSIN: WISCONSIN: IN INNOVATION STARTUPS PARTICIPATING IN STARTUPS (D 1. Overview of 2. Copyright Ownership 1.Tr Overview of 2. Trademark Risks 3. Copyright Risks for Startups Participating in Support 4.Copyr Startup Practices for INAL INAL .F B.Co-W Incubators and A...... 17 Copyright ...... A...... 8 Accelerators ...... C. Hackathons ...... 13 ...... 14 D...... Business Contests ...... 15 E...... Startup Social Groups F...... 15 Startup Service Organizations ...... B. Trademarks ...... 22 INTELLECTUAL PROPERTY ISSUES FOR PROPERTY ISSUES INTELLECTUAL VERVIEW OF KICK-STARTING INNOVATION ARTICLES ARTICLES INNOVATION KICK-STARTING * Visiting Clinical Associate Professor and Director of the Law and Entrepreneurship Clinic, * Visiting Clinical Associate Professor and Director NTREPRENEURSHIP M K AMMONS ENTREPRENEURSHIP SUPPORT PROGRAMS SUPPORT ENTREPRENEURSHIP C Y NTRODUCTION 5. H 5. I. E I Marquette University Law School. University Marquette The author would like to thank the Marquette Intellectual Property Law Review for to present the the opportunity Innovation in at 2017 in WisconsinOctober Symposium in Milwaukee,Wisconsin. II. O 40672-mqi_22-1 Sheet No. 4 Side A 05/20/2019 14:43:36 A 05/20/2019 4 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 4 Side B 05/20/2019 14:43:36 4 M K 2017 C Y (May (2016) OURNAL 32 33 Wisconsin , J OUNDATION ERALD [Vol. 22:1 [Vol. F H For Third Straight For Third Yet the startup ORPORATION (May 18, 2017 7:00 1 C HIPPEWA In 2016, by way of C , at 4 (2017), AUFFMAN 2 K HE ENTINEL S , T OUNCIL C ROGRAMS ...... EVELOPMENT P ARION D WNERSHIP BY M OURNAL O a Startup...... 25 ...... a Startup. , J by a Startup ...... 26 ...... by a Startup ECHNOLOGY CONOMIC WING T E ROPERTY Assignment ...... 31 , E , P As someone familiar with the state might NTRODUCTION ISCONSIN ISCONSIN I 3 , W , W ) 9/13/2018 11:46 AM How Can Wisconsin Get Can Startups? More How MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. NTREPRENEURSHIP SUPPORT NTREPRENEURSHIP ELETE NTELLECTUAL I E D Technology Helps Drive “Holy Trinity” of Wisconsin Economy Technology Helps Drive “Holy Trinity” of OT N Programs ...... 32 32 Programs ...... a. Creation of Information for b. DisclosureInformation of c.28 Maintain Secrecy ...... Efforts to O Tom Still, (D See 1.23 Overview ...... 2.25 ...... Programs Support Secret Issues Arising Trade with 1. Overview of Patents ...... 29 1...... Overview of Patents 2.and Patent Ownership 3. with Patents and Issues Entrepreneurship Support . at 19. . at INAL INAL 2017 Wisconsin Portfolio ISCONSIN (March 4, 1017), http://www.jsonline.com/story/money/2017/03/04/tom-still-technology- .F Id D. Patents ...... 29 C.23 ...... Trade Secrets W OSTERING OF 1. Wisconsinof the past has achieved notoriety ranking in business last startup activity sorts by 4. 3. 2. Tom Still, Wisconsin a bastion of startup activity. is not known as AMMONS ONCLUSION ...... ENTINEL 5. H 5. helps-drive-holy-trinity-wisconsin-economy/98704132/ [https://perma.cc/WA4T-CFQ2]; 2016 Deal Flow Snapshot Year-End scene has changed significantly since the turn of the century, and the pace of scene has changed significantly since only eight early-stage Wisconsin 2001, change has been accelerating. In companies less than $53 million. raised capital, totaling S (2017), http://www.kauffman.org/kauffmanindex/reporting/~/media/b27f0b8eb4a8414295f23870538 [https://perma.cc/2U8T-QDK4]. e5372.ashx Other studies place Wisconsin’s startup in a activity more positive light. 4 AM), http://www.jsonline.com/story/money/2017/05/18/third-straight-year-wisconsin-ranks-last- [https://perma.cc/9R6W-ZKY5]; business-startup-activity/328803001/?cookies=&from=global Kauffman Index of Startup Activity surmise, more than half of the deals closed in 2016 were in the Madisonarea, three years, according to the Ewing Marion Kauffman Foundation. Rick Rommell, Activity Year, Wisconsin Ranks Last in Business Startup http://wisconsintechnologycouncil.com/wp-content/uploads/2015/09/2017-WI-Portfolio.pdf [https://perma.cc/C9T9-B75G]. (on file with the Marquette Intellectual Property Law Review). (on file with the Marquette Intellectual Property Law 24, 2017), http://chippewa.com/news/opinion/columns/tom-still-how-can-wisconsin-get-more- startups/article_06ca8e39-89fa-50ba-8ca2-e8eabd790e47.html [https://perma.cc/VW6R-KU66]. comparison, 137 early-stage Wisconsin companies raised more than $276 million in investment capital. C III. F 40672-mqi_22-1 Sheet No. 4 Side B 05/20/2019 14:43:36 B 05/20/2019 4 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 5 Side A 05/20/2019 14:43:36 5 5 CO . COM . , (May ECH NC , I , T ORBES , F Wisconsin’s Madison has 10 6 Milwaukee, the (Nov. 5, 2015), 8 , http://madisonregion.org/ IME T 9 7 , https://en.wikipedia.org/wiki/List_ . Venture capitalists and others view AP C Id Epic Systems Draws on Literature Greats Epic ARTNERSHIP P IKIPEDIA HE , W , T CONOMIC E note 3, at 12. , at 2–3 (Sept. 2014), http://www.kauffman.org/what-we- (Jan. 6, 2015), http://host.madison.com/news/local/govt-and- (Jan. 6, 2015), http://host.madison.com/news/local/govt-and- EGION Venture Capitalists Nod to Epic Systems, UW-Madison for R supra , COM . ) 9/13/2018 11:46 AM OUNDATION F ADISON The Top 25 “Next in Tech” Cities Fostering Startup Growth The Top 25 “Next in Tech” Cities Fostering Forget Silicon Valley. Move Your Startup Any of These 3 Places ELETE ADISON , M D , M OT N O AUFFMAN K (D INAL INAL Examining the Connections within the Startup Ecosystem: A Case Study of St. Louis .F 2017 Wisconsin Portfolio Top Employers List of United States Cities by Population ARION Introducing the Entrepreneurship Ecosystem: Four Defining Characteristics Introducing the Four Entrepreneurship Ecosystem: Defining ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS ENTREPRENEURSHIP IN STARTUPS FOR ISSUES . M Id 8. 9. Andrew Medal, 10. 5. 6. 7. Conor Cawlyer, Startups are not created, and do not grow, in a vacuum.Startups are not created, Indeed, a strong Startup activity is not confined to the Madison is not confined Startup activity area, with early-stage M K AMMONS WING C Y 5. H 5. (Mar. 30, 2017), https://tech.co/top-25-cities-fostering-startup-growth-2017-03 [https://perma.cc/4Q9 fostering startup growth outside the country’s main technology W-J4SZ]. A “next in tech” city is one hubs. madison-for-madison/article_7a407cee-cc3b-5b3d-a2e8-92b6184f646b.html [https://perma.cc/255L- madison-for-madison/article_7a407cee-cc3b-5b3d-a2e8-92b6184f646b.html 933F]. about-the-region/major-companies/top-employers/ [https://perma.cc/S95F-RYFY]. One of the most about-the-region/major-companies/top-employers/ prominent and successful employers is Epic Systems a privately held software company Corporation, employing more than 8,000 in the Madison area. Jeff Glaze, for Its Next Expansion garnered national attention for its startup activity, for its startup activity, national attention garnered one with study ranking recent cities. “Next in a list of the city sixteenth in Tech” do/research/a-research-compendium-entrepreneurship-ecosystems/examining-the-connections- do/research/a-research-compendium-entrepreneurship-ecosystems/examining-the-connections- within-the-startup-ecosystem-a-case-study-of-st-louis [https://perma.cc/LUJ7-AHQT]. Isenberg, Daniel startup ecosystem—i.e., mentors, a region’s entrepreneurs, investors, service various the the connections between and etc., providers, support organizations, players—encourages and facilitates the growthventures. of new investor networks and funds active in Milwaukee,investor networks La the Chippewa Valley, state. River Valley, and elsewhere in the Crosse, the Fox (Feb. 6, 2017), https://www.inc.com/andrew-medal/3-unexpected-places-that-are-actually-amazing- for-startups.html [https://perma.cc/L4F5-Q3W2]. homethe University to Wisconsin-Madison of employers large and in informationamong life sciences, healthcare, and technology, sectors. other E 2018] by population, the United States ranking 82nd in Despite of_United_States_cities_by_population [https://perma.cc/64E2-99F9]. of_United_States_cities_by_population [https://perma.cc/64E2-99F9]. politics/epic-systems-draws-on-literature-greats-for-its-next-expansion/article_4d1cf67c-2abf-5cfd- 8ce1-2da60ed84194.html [https://perma.cc/9TQN-XUV9]. the United patients all in half of than More Epic system. States have their electronic health records in an Epic Systems and the University of Wisconsin-Madison assets to the entrepreneurial as strong community in Madison. Laurel White, Madison’s Burgeoning Startup Scene Startup Madison’s Burgeoning http://host.madison.com/ct/business/technology/venture-capitalists-nod-to-epic-systems-uw- http://host.madison.com/ct/business/technology/venture-capitalists-nod-to-epic-systems-uw- largest city in the state, is known to have less startup activity than Madison. state, is known to have less startup largest city in the Milwaukeearticle in Inc. Magazine designated cities as one of three 2017 Yet a in the country to which startups should consider moving, in part due to the city’s and proximityaffordable rent to large companies such as Rockwell Controls. Automation, Healthcare, and Johnson GE 40672-mqi_22-1 Sheet No. 5 Side A 05/20/2019 14:43:36 A 05/20/2019 5 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 5 Side B 05/20/2019 14:43:36 in M K HIO C Y EGAL (Jan. L infra , 8 O TEP [Vol. 22:1 [Vol. -S AWYER Y L -B TEP . 139, at 153 and n. 67 Sample Due Diligence IN TARTUP : S , S & F US. OMPANY 63 (2008); 16 Strategies for Start-Up Ecommerce C . 643, 644 (2002). . 643, 644 If issues exist regarding a , a venture capital firm). , a venture capital EV ALE 15 S . J.L. B e.g. O L. R T TAN P -U ECHNOLOGY , 21 S ESLEYAN Consequently, acceptance into a support Consequently, acceptance TART A T S Lockdown Lost-Founder IP F 13 . W O EX ROM F , 8 T UIDE IFECYCLE G ) 9/13/2018 11:46 AM Accelerating the Growth of the Next Generation of Innovators Accelerating the Growth of the Next Generation MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. . L.J. L.J. 379, at 382 (2013); Ron Corbett, . Investment Accelerators ELETE US D B RACTICAL OT P N 14 —many of which came existence within into ten years. the last O 12 ND (D A Wisconsin is now homehackathons, incubators, to accelerators, , Cooley LLP, https://www.cooleygo.com/documents/sample-vc-due-diligence-request- INAL INAL .F 11 14. programs Support are not necessary for all startups, that are well funded particularly those 15. Dana Thompson, 13. Brad Bernthal, 16. Edwin Miller, Jr., L 11. support This Article uses the phrases “entrepreneurship support program” and “startup 12. be defined and discussed The types of support organizations and programs will NTREPRENEURIAL Participation in entrepreneurship support programs, however, is not without not support programs,Participation in entrepreneurship however, is AMMONS . E ACKGROUND T 5. H 5. (2016). prior experience creating and running a successful or run by so-called serial entrepreneurs with have varying track records of success, and startups business venture. Additionally, support programs program before accepting an offer to participate in are advised to perform due diligence on a support it. program” interchangeably and in the broad sense to encompass any activity, and in the broad sense program” event, to encompass any interchangeably or organization that does not apply those terms to organizations that supports startup business ventures. This Article to, startups ( primarily invest it, or provide financial support Section I. Section I. business contests, co-working spaces, startup social groups, and startup service social groups, and spaces, startup co-working contests, business organizations program, is often a significant moment especially one that is selective, in the life of a startup. ecosystem with particularly and deepened, has strengthened to the respect of programsand expansion creation and support entrepreneurship that startups. startup’s intellectual property, the company itself to significant liability exposes by doing business in the marketplace. Such issues can also threaten a startup’s as intellectual property is a core ability to obtain venture capital financing, process. component of the investmentdue diligence Among programs other things, these and hone business entrepreneurs test help ideas; meet receive cash awards, co-founders and business partners; potential seed investments, legal and accounting services); and in-kind support (e.g., validation, which and investors; and receive third-party connect with advisors reputation. can enhance a startup’s risk. This Article examines may the risks that participation create with respect to the long- of critical importanceintellectual property, something to a startup’s term success of any modern venture. business S B 25, 2011 5:55 AM), https://www.forbes.com/sites/danisenberg/2011/05/25/introducing-the- [https://perma.cc/MBA9-entrepreneurship-ecosystem-four-defining-characteristics/#490451d05fe8 GQUK]. 6 Companies in the Post-Dot-Bomb Era Request List list/ [https://perma.cc/7TZJ-RM2Y]. for so-called Part of the due diligence process involves looking of the startup who might later assert claims lost founders, i.e., people involved in the earliest stages regarding the company’s intellectual property. 40672-mqi_22-1 Sheet No. 5 Side B 05/20/2019 14:43:36 B 05/20/2019 5 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 6 Side A 05/20/2019 14:43:36 7 18 SE U Another 17 (May 2013), NTREPRENEURS (2011); Steve Blank, EVIEW E R S ’ 19 ODAY USINESSES T B USINESS B OW : H UCCESSFUL ARVARD S TARTUP S Lean startup embraces for most that, , H Lean startup stands in contrast to “stealth- 21 EAN 22 L ADICALLY R HE REATE C ) 9/13/2018 11:46 AM note 13. note 13, at 164–65. note 13, at 167–69. note 13, at Eric Ries, T ELETE D supra OT supra supra N O (D Furthermore, on informal the reliance relationships is, in the NNOVATION TO I 17 U.S.C. §§ 201(a), (d)(1) (2012). 20 INAL INAL See generally .F See ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS ENTREPRENEURSHIP IN STARTUPS FOR ISSUES 18. Bernthal, 19. trade secrets and inventions to mentors are discussed in The risks regarding disclosure of 20. Bernthal, 21. 17. 22. Bernthal, Support programsSupport important are an the involve they because focal point Attorneys can, and often do, counsel startups to formalize counsel Attorneys can, and often do, relationships M K AMMONS ONTINUOUS C Y 5. H 5. Section II.C and II.D of this paper, respectively. Section II.C and II.D of this paper, MBBT]. as opposed to forced, matches; (4) are viewed as community-oriented; and (5) are attractive to, and sometimes required by, volunteers who support these programs. example to a mentor. secrets or an invention a startup discloses trade is where As is common in Wisconsin practice have not and elsewhere, many mentors signed—and, in some cases, will not sign—a non-disclosure agreement. mode,” a methodology author’s opinion, an outgrowth of “lean startup,” a popular methodologyauthor’s opinion, an outgrowth of for developing early- stage businesses. through signing of written agreements intellectual property. But addressing it does not account for whysuch advice is broad-stroked, and informality is now so commonplace. support programs Entrepreneurship informal embrace relationships because, among reasons, they (1) are attractive to resource- other (3) are believed to lead to natural, costs; poor startups; (2) have low transaction https://hbr.org/2013/05/why-the-lean-start-up-changes-everything [https://perma.cc/QE28-2L2P]. https://hbr.org/2013/05/why-the-lean-start-up-changes-everything [https://perma.cc/QE28-2L2P]. C 26, 2010), http://startuplawyer.com/incorporation/lockdown-lost-founder-ip [https://perma.cc/G2UT- 26, 2010), http://startuplawyer.com/incorporation/lockdown-lost-founder-ip Consequently, disclosure of trade secrets or inventions to a mentor of trade secrets or inventions Consequently, disclosure may result respectively. rights or patent rights, in loss of trade secret industries, constant customers is more and other third parties from feedback secrecy because feedback allows a business to rapidly develop than important services. and iterate its products or 2018] Why the Lean Startup Changes Everything insertion of third parties—i.e.,insertion mentors, providers, customers, service business and potential co-founders—intopartners, of a the growth and development in Wisconsin startups the author’s experience, startup. In often engage with parties informally,those third there are no written i.e., agreements in place. Informal problems significant can lead to relationships for startups, especially relationship. in the disclosed is created, used, or when intellectual property For example, might a developer a software code for a startup during write entrepreneurship program.hackathon or other basic rules of copyright Under assigned it is properly that code until rights to any hold not law, the startup will company,or licensed to the such as through a written agreement. 40672-mqi_22-1 Sheet No. 6 Side A 05/20/2019 14:43:36 A 05/20/2019 6 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 6 Side B 05/20/2019 14:43:36 M K C Y Other Other 26 [Vol. 22:1 [Vol. EVELOPMENT D . (Mar. 1, 2016), EV . R US ISCONSIN B CONOMIC E W . Id ARVARD , H ISCONSIN , W ROGRAM IN ROGRAM IN Until startup loses influence lean P 23 Some capital to accelerators provide They operate for a fixed term, typically 24 25 UPPORT S A. Accelerators Seed Accelerator ) 9/13/2018 11:46 AM note 13; MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. What Startup Accelerators Really Do Startup What ELETE D supra OT N O NTREPRENEURSHIP (D Stealth mode involves limiting exposure of products or services outside the company , https://wedc.org/programs-and-resources/seed-accelerator/ [https://perma.cc/F9WC- . I. E INAL INAL Id. Id .F 24. Ian Hathaway, 23. 25. 26. Bernthal, This article examinesThis article by startups face property issues the intellectual Entrepreneurship support programs in Wisconsin, as elsewhere in the Accelerators are competitive,Accelerators programs cohort-based are designed to accelerate AMMONS ORPORATION 5. H 5. prior to launch, to avoid alerting competitors to a market opportunity. participating in support programsparticipating in support in Wisconsin,and why the factoring in how programs provides an overview of as they do. Section I of this article operate support programs.the entrepreneurship informal It includes a discussion of the programs.the arise during commonlyrelationships that provides an Section II overview of the main types of intellectual property startups encounter, namely, copyright, trademarks,patents. The section discusses trade secrets, and problems that startups commonly for each type of intellectual encounter problems. and practices for addressing those property, and tools Section III support explores how entrepreneurship organizations in Wisconsin can—and, in some cases, do—foster intellectual property ownership in early-stage startups. United States, take many forms. The main types are accelerators, incubators, business contests, startup social groups, and co-working spaces, hackathons, of the various types of programsstartup service organizations. An overview follows. https://hbr.org/2016/03/what-startup-accelerators-really-do [https://perma.cc/6FX8-4BC7]. popular at the turn of the century that involved disclosure of little information of disclosure involved that the century turn of at the popular launch. product startup prior to outside a C 8 participants in the form of grants, loans, or equity investments. and the other preceding factors are addressed or proven untrue, or proven addressed factors are other preceding and the reliance use of, and to halt their support programsentrepreneurship unlikely are on, informal relationships. the life cycle of early-stage startups. X6Z5]. lasting three to six months, and culminate in an event where participants “demo”their startups. or “pitch” accelerators do not provide any capital, focusing instead on the educational and focus, networking aspects of the program. Some an industry accelerators have 40672-mqi_22-1 Sheet No. 6 Side B 05/20/2019 14:43:36 B 05/20/2019 6 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 7 Side A 05/20/2019 14:43:36 , , , 9 A 32 ATER W Companies (Dec. 2, 2015), One notable HE 30 , T 31 KILLSET a.cc/A8YN-38RR]. , S gener8tor does not ask 33 tor-swarm/ [https://perma.cc/CK2V- note 13, at 153. note 13, at e.g., BREW Program Details , see supra -gener8tor-men Founded in 2012, gener8tor has, as of summer has, in 2012, gener8tor Founded 29 , https://www.gener8tor.com/gener8tor/ [https://perma.cc/9FNN- , https://www.gener8tor.com/gener8tor/ In 2014, two attorneys and an entrepreneur in 35 TOR WERCBench Labs: An Immersive Program for Technology WERCBench Labs: An Immersive Program for Water Council’s BREW Program Promises to Launch 75 Start-Ups , http://wercbenchlabs.com/ [https://perm , http://wercbenchlabs.com/ Gener8tor Raises $1.5 Million Fund, Names New Class of Start-Ups Class of Fund, Million Raises $1.5 Gener8tor Names New 8 ) 9/13/2018 11:46 AM Gener8tor Again Named One of Nation’s Top Accelerator Programs Gener8tor Again Named One of Nation’s Top note 24; Bernthal, ABS note 13, at 158–59; note 13, at 162–63. note 13, at L A Morning at The Gener8tor Mentor Swarm ELETE GENER D (Feb. 12, 2016), http://archive.jsonline.com/business/gener8tor-raises-15- (Feb. 12, 2016), http://archive.jsonline.com/business/gener8tor-raises-15- , supra supra OT supra 28 ENCH (Mar. 22, 2016), http://archive.jsonline.com/business/water-councils-brew- N O (D 34 The mentorsby organized of volunteer experts, generally consist . ENTINEL INAL INAL Id 27 S ENTINEL .F , WERCB (Jun. 6, 2017 11:37 AM), https://www.biztimes.com/2017/ideas/entrepreneurship/gener8to S , https://thewatercouncil.com/programs/brew-accelerator/program-details/ , https://thewatercouncil.com/programs/brew-accelerator/program-details/ ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS ENTREPRENEURSHIP IN FOR STARTUPS ISSUES About gener8tor 28. Bernthal, 30. 34.swarms. The author has participated in multiple of gener8tor’s mentor 35. Kathleen Gallagher, 32. Jack Koziol, 27. Hathaway, 31. Kathleen Gallagher, 33. Bernthal, 29. Andrew Weiland, IMES Wisconsin is home of note. In 2013, The Waterto other accelerators The most prominentaccelerator in Wisconsin an investment is gener8tor, M K T AMMONS IZ OUNCIL C Y OURNAL OURNAL 5. H 5. J Council, a trade group based in Milwaukee,Council, a trade group based in launched Business Research Entrepreneurship in Wisconsin (“BREW”), an accelerator focused on growing water technology startups. 3XSH]. http://blog.skillset.com/resources/morning r-again-named-one-of-nations-top-accelerator-programs/ [https://perma.cc/M9B5-Y6V2].r-again-named-one-of-nations-top-accelerator-programs/ B startup and mentormatch who mutual upon well may, agreement, with work one another for the remainder the accelerator program of or beyond. As is common with other investment accelerators, accelerator ranked in the top sixteen in the country according to the Seed the country according to in the top sixteen in accelerator ranked Project. Accelerator Rankings accepted into gener8tor’s twelve-week programaccepted into gener8tor’s a $20,000 investment receive $140,000 following successful completion.upon entry and 7UK4]. C while others accept startups fromaccept startups others while many Programs sectors. business include education and training, introduce participants accelerators often and to mentors, purposes of “accelerating” partners for and potential business investors, the ventures. 2018] million-fund-names-new-class-of-start-ups-b99669253z1-368629531.html [https://perma.cc/F2NR- million-fund-names-new-class-of-start-ups-b99669253z1-368629531.html 5Z38]; [https://perma.cc/7L5Q-LXK4]; Innovators aspect of gener8tor is its “mentoraspect of gener8tor swarm,” to three week period at the a two programbeginning of each mentors. where startups meet of with dozens 2017, graduated fifty-four companies2017, graduated fifty-four have raised more that than $110 million than 1500 people. employment for more and created in financing volunteers participating in its mentor programvolunteers participating in its mentor to sign non-disclosure agreements. the accelerators. J 40672-mqi_22-1 Sheet No. 7 Side A 05/20/2019 14:43:36 A 05/20/2019 7 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 7 Side B 05/20/2019 14:43:36 , M K HE C Y ENCH , T - 40 EED OURNAL S Student ADWORKS ADWORKS , J ONSORTIUM [Vol. 22:1 [Vol. 41 C a cluster of a cluster ISCONSIN W 37 ADWORKS M note 34; M note 27; M , ESEARCH R supra supra , , NIVERSITY OF ABS L , U Our Program NERGY http://www.gazettextra.com/archives/ E ENCH , https://thewatercouncil.com/programs/brew- , https://thewatercouncil.com/programs/brew- Launch Pad IDWEST BREW Accelerator available at (Jan. 13, 2016), http://archive.jsonline.com/business 42 , M OUNCIL C note 27; note 34; WERCB ENTINEL ATER S supra W , supra , Madworks Seed Accelerator Accepts Applications for Start-Up Madworks Seed Accelerator Accepts Applications EPC Industry HE ABS Startups Chosen for WERCbench Labs Training Program Startups Chosen for WERCbench Labs Training L ) 9/13/2018 11:46 AM UW-Whitewater Students Take the Risk and UW-Whitewater Students Take Start the Risk Own Businesses , T OURNAL MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. note 35. note 35. , J ELETE ENCH D (Wisconsin), Oct. 16, 2015, supra supra OT , , N O (D AZETTE , http://uwwlaunchpad.squarespace.com/ [https://perma.cc/7HW8-UDBV]. , http://uwwlaunchpad.squarespace.com/ , http://www.madworksaccelerator.org/program-information/ [https://perma.cc/C2N2- , http://www.madworksaccelerator.org/program-information/ . In 2015, the MidwestIn 2015, Consortium, Energy Resource note 27. BREW, Madworks the and WERCBench Accelerator, Seed Labs G INAL INAL See BREW Accelerator Id As with gener8tor, manyAs with gener8tor, of the mentors volunteer their services. .F (Jun. 11, 2015), http://archive.jsonline.com/business/start-ups-chosen-for-wercbench-labs- 36 38 BREW Accelerator 39 CCELERATOR CCELERATOR supra A A 40. See WERCB 41. Andrea Anderson, 36. Kathleen Gallagher, 42. 38. Kathleen Gallagher, 37. representing M-WERC, is an organization or The Midwest Energy Resource Consortium, 39. , Another student accelerator is The Commons, an initiative launched in Wisconsin University for student-led startups. The also has accelerators of AMMONS HITEWATER CCELERATOR ABS EED EED ENTINEL ANESVILLE 5. H 5. Training Class in Madison industry stakeholders based in Milwaukee,stakeholders based industry launched WERCBench an Labs, power, and controls in the energy, startups focused on early-stage accelerator sectors. /madworks-seed-accelerator-accepts-applications-for-start-up-training-class-in-madison- b99651043z1-365154131.html/ [https://perma.cc/NSH7-7MTY]; each offer seed investments, in participating startups, lean loans, or grants among and industry experts, and access to mentors startup training, other things. Madison Madworks the launched Accelerator, Seed which Wisconsin assists development, stages of in the very early startups business e.g., still honing models. Wisconsin–Whitewater’sis one of the Pad, which started in 2011, Launch oldest and most accelerators in the state. established student S S J A S L 10 accelerator/ [https://perma.cc/A64W-5LBK]. program-promises-to-launch-75-start-ups-b99692354z1-373093141.html/ [https://perma.cc/YA9P- program-promises-to-launch-75-start-ups-b99692354z1-373093141.html/ TYUQ]; W uw-whitewater-students-take-the-risk-and-start-own-businesses/article_441b8f01-67e8-5b30-b55f- 631a4c166324.html [https://perma.cc/2G8C-YCER]; https://www.m-werc.org/ [https://perma.cc/3KUK-CHPM]. https://www.m-werc.org/ [https://perma.cc/3KUK-CHPM]. participants in Launch Pad receive a small stipend; training and mentorship Pad receive a small stipend; participants in Launch referrals to volunteers; resources, outside and professors such fromcommunity an option incubator; and a business office space at firms; law as accountants and credit. to apply for independent study training-program-b99517983z1-307060401.html/ [https://perma.cc/J8A3-Z6P3]; WERCB U376]. research institutions; and companies; educational and a large cluster of energy, power, and control other industry stakeholders. 40672-mqi_22-1 Sheet No. 7 Side B 05/20/2019 14:43:36 B 05/20/2019 7 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 8 Side A 05/20/2019 14:43:36 50 The 11 43 Unlike with 44 , at 10 (Oct. 2014), , http://www.thecommons 51 OMMONS Business incubators are not Business incubators C 47 HE DMINISTRATION T A The Commons relies heavily on its The Commons on relies heavily 46 USINESS While accelerators work with startups at B 48 (Aug. 12, 2015), http://archive.jsonline.com/blogs/busine (Aug. 12, 2015), http://archive.jsonline.com/blogs/busine MALL Innovation Accelerators: Defining Characteristics Among What Is the Commons? ENTINEL note 24. , U.S. S S ) 9/13/2018 11:46 AM note 24. supra note 43. Corporations participating in the Commons’ corporate challenge note 43. Corporations participating in the Commons’ note 43; ELETE B. Incubators and Co-Working Spaces Similar incubators aim to accelerators, to accelerate a The Commons Seeks Students to Apply for Fall 2015 Entrepreneurial Skills The Commons Seeks Students to Apply for Fall D OURNAL supra 49 OT , J N supra supra In the author’s experience, O (D 45 Hathaway, .; C. Jennifer Auer et al, INAL INAL Id See .F ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS IN ENTREPRENEURSHIP STARTUPS FOR ISSUES 46. The author has served as a mentor for several classes of The Commons and has provided 47. Hathaway, 48. Id. 49. 44. Cordio, 45. Cordio, 43. Matt Cordio, 50. Id. 51. Business incubators are sometimesBusiness accelerators, but mistaken for Co-working spaces are also rent-based, but are open-plan, where but are open-plan, Co-working spaces are also rent-based, members M K AMMONS C Y 5. H 5. incubators differ in notable ways. The core business model notable ways. The core business incubators differ in of incubators is to provide space to companies, oftentimes on terms that are more and affordable flexible than with commercial standard leases. However, support vary significantly among incubators, services and incubators term. do not provide intense programming over a fixed the pre-seed and seed stages, many incubators accept companies at later stages of development. competitive—i.e., if a company rent and space is available, they can afford the will be admitted to the incubator. business’s growth through providing business assistance, referrals, networking networking business assistance, referrals, business’s growth through providing shared equipment, amongopportunities, technical support, and other things. Startup Assistance Organizations do not, in the author’s experience, require an assignment to the company of intellectual property do not, in the author’s experience, require an The corporations, rather, use the program primarily as developed by the students during the program. Wisconsin. talented students in southeastern an avenue for attracting and helping to develop program. in the legal counsel to several startups that participated program, which lasts ten weeks, is free and open to any students enrolled in the students enrolled open to any and program, weeks, is free which lasts ten two-dozen southeastern Wisconsin.and universities in colleges ss/the-commons-seeks-students-to-apply-for-fall-2015-entrepreneurial-skills-accelerator-program- ss/the-commons-seeks-students-to-apply-for-fall-2015-entrepreneurial-skills-accelerator-program- 7146153-321661761.html [https://perma.cc/3KB5-XLQC]. wi.com/mission/ [https://perma.cc/QRT8-5PRV]. 2018] 2014 by the Greater MilwaukeeGreater by the 2014 CommitteeMilwaukee.Startup and Accelerator Program https://www.sba.gov/sites/default/files/rs425-Innovation-Accelerators-Report-FINAL.pdf [https://perma.cc/ZS82-JACB]. volunteer mentors, who guide and work closely with the student teams. volunteer mentors, who guide and work the student closely with other accelerators, The Commons creates cross-functional teams The Commonsother accelerators, cross-functional creates of students, teamand each a challenge venture or on launching a startup works on either fromWisconsin a large as Briggs & such corporation, or Kohl’s Stratton Corporation. 40672-mqi_22-1 Sheet No. 8 Side A 05/20/2019 14:43:36 A 05/20/2019 8 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 8 Side B 05/20/2019 14:43:36 , , M K IMES C Y T and the 57 the [Vol. 22:1 [Vol. APITAL 61 C HE , T , https://technologyinno However, the open However, 55 ARK P [https://perma.cc/F4TD-EZJ9]; 56 Because the concept of Because the concept , http://universityresearchpark.org 60 4, https://www.ward4mke.com/mem ARK ESEARCH P , http://universityresearchpark.org/about/ ARD R and Ward4 in Milwaukee, home 59 The open environmentThe open is believed , W ARK (Oct. 22, 2012), https://www.washingtonpost. (Oct. 22, 2012), https://www.washingtonpost. P 54 Membershipmonth-to-monthis often ESEARCH OST R ENTER AT P 52 C 52bd3fdd1.html ESEARCH R NIVERSITY ASHINGTON NNOVATION W in Section II.C, open environment in the of co-working spaces creates r, U I Gener8tor, Ward4 Attract Subscription Wine Retailer to Wisconsin NIVERSITY HE ) 9/13/2018 11:46 AM 4, https://www.ward4mke.com/ourmembers/ [https://perma.cc/93XW- Because of their relatively low cost and communal low cost and of their relatively Because 100state is Moving to a New Downtown Location infra MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. , U , T note 54. 53 Co-Working Spaces Are Redefining What It Means To Go To The Office Co-Working Spaces Are Redefining What It Means (Sept. 26, 2017 1:37 PM), http://www.npr.org/2017/09/26/552379626/co- Entrepreneurship Advice: How to Decide Between Coworking Spaces, Entrepreneurship Advice: How to Decide Between ARD ELETE Individual Options and Pricing D , , W (May 9, 2015), http://archive.jsonline.com/business/gener8tor-ward4-attract- OT supra ADIO ECHNOLOGY N e.g. R O , , T (D As discussed see Prominent in Madison, spaces include 100state co-working ; About the Park UBLIC INAL INAL ENTINEL ; Id About Id. P MGE Innovation Cente S .F 58 , https://100state.com/ [https://perma.cc/BG2L-3MPT]. Id Our Members 55. Id. 56. 61. Noguchi, 57. 53. 60. Kathleen Gallagher, 59. Erik Lorenzsonn, 52. J.D. Harrison, 58. 54. Yuki Noguchi, Wisconsin is home Two of incubators and co-working spaces. to an array STATE AMMONS ATIONAL OURNAL 5. H 5. risks for a startup’s trade secrets. risks for a startup’s trade com/blogs/on-small-business/post/entrepreneurship-advice-how-to-decide-between-coworking- com/blogs/on-small-business/post/entrepreneurship-advice-how-to-decide-between-coworking- spaces-accelerators-and-incubators/2012/10/22/e9ab1eec-1c0a-11e2-9cd5-b55c38388962_blog.html [http://perma.cc/CDL3-FUDX]. 100 (Sept. 22, 2016), http://host.madison.com/ct/news/local/state-is-moving-to-a-new-downtown- location/article_4ad15f4a-80e5-11e6-bcea-97f Accelerators and Incubators J and typically includes access to conference rooms, to conference includes access and typically Wi-Fi, copying, printing, amenities.and other to gener8tor and multipleto gener8tor and technology startups. AMDL]. Wisconsin’s largest co-working community; Wisconsin’s co-working largest working-spaces-are-redefining-what-it-means-to-go-to-the-office [https://perma.cc/L4AC-XHSC]. working-spaces-are-redefining-what-it-means-to-go-to-the-office subscription-wine-retailer-to-wisconsin-b99496168z1-303175031.html/ [https://perma.cc/MWQ3- GH5Q]; to lead to “serendipitous” meetings “serendipitous” to lead to people. of business vationcenter.org/about/ [https://perma.cc/8U9N-KSEY]. vationcenter.org/about/ [https://perma.cc/8U9N-KSEY]. work alongside or near one another. or near alongside work /the-property/mge-innovation-center/ [https://perma.cc/867X-4JLC]. The MGE/the-property/mge-innovation-center/ [https://perma.cc/867X-4JLC]. Innovation Center is park affiliated with the University of Wisconsin-part of University Research Park, a technology Madison. of the more prominent include the MGEincubators Innovation Center, in Madison, with twenty-seven suites; offices and thirty-four laboratory 12 Technology Innovation Center at Research Park, in the Milwaukee-area, Center at Research Park, in Technology Innovation with of lab, light manufacturing,80,000 square-feet by and office space for rent startups. bership [https://perma.cc/8WHG-467C] (listing amenities of the co-working space). bership [https://perma.cc/8WHG-467C] of the co-working amenities (listing incubators and co-working spaces is relatively easy to replicate, easy spaces is relatively incubators and co-working space also can create privacy challenges for members. privacy challenges for space also can create [https://perma.cc/SR83-US4Z]. environment, co-working space is attractive to early-stage well as to startups as workers,independent such as freelancers. N 40672-mqi_22-1 Sheet No. 8 Side B 05/20/2019 14:43:36 B 05/20/2019 8 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 9 Side A 05/20/2019 14:43:36 69 70 (June 13 N. Y. Y. N. HE (Apr. 15, , T EVIEW R COM Hackathons . 62 68 Hackathons can EDIUM USINESS 67 At the outset of a At the outset of a B , M 65 ARVARD (Nov. 12, 2015), https://isthmus (Nov. 12, 2015), , H STHMUS , I Hackathons have traditionally been (April 18, 2015), http://host.madison.com/ct/enter (April 18, 2015), http://host.madison.com/ct/enter Near the end of the event, the teamsNear the end of the pitch 67, http://www.sector67.org/blog/2016/build-madison- 63 66 IMES T C. Hackathons ECTOR , S The concept is now being applied beyond software being The concept is now APITAL 64 C , https://www.madhacks.org/ [https://perma.cc/HB3R-PR8K]. , https://www.madhacks.org/ ) 9/13/2018 11:46 AM HE A Happening Hackathon Who Owns Hackathon Inventions? The Hackathon Fast Track, From Campus to Silicon Valley The Hackathon Fast Track, From Campus to 6 Tips for Putting Together a Hackathon Team Programmers, Designers Descend On UW-Madison for 24-Hour Programmers, Designers Descend On UW-Madison note 62. , T ELETE note 68. D OT Build Madison ADHACKS supra N ., M supra O (D see .; Alan Steele, .; INAL INAL See, e.g Id Id .F ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS IN ENTREPRENEURSHIP STARTUPS FOR ISSUES (April 6, 2015), https://www.nytimes.com/2015/04/12/education/edlife/the-hackathon-fast- 68. Nathan J. Comp, 65. 63. 67. Leckart, 66. Matt Menietti, 69. 70. Comp, 62. Steven Leckart, 64. Laurel White, As in other parts of the country, hackathons are popular events in As in other parts of the country, A hackathon—aportmanteau “marathon”—is of “hack” and an event M K AMMONS IMES C Y 5. H 5. Wisconsin. MadHacks the state’s largest annual hackathons. is one of [https://perma.cc/85H6-BQVL]. .com/news/news/madhacks-focuses-on-drawing-novices/ november-19th-20th/ [https://perma.cc/2ZUZ-FPBY] (announcing seventh annual 24-hour “create-a- (announcing november-19th-20th/ [https://perma.cc/2ZUZ-FPBY] thon” for Madison). Launched in 2015, the event attracts college students from across the country. of Wisconsin–Madison,Participants convene at the University where teams of track-from-campus-to-silicon-valley.html [https://perma.cc/974H-SE8W]. 2016), https://medium.com/globalhack/6-tips-for-putting-together-a-hackathon-team-3991f14437c8 [https://perma.cc/3Q2E-7MZM]. 13, 2013), https://hbr.org/2013/06/who-owns-hackathon-inventions [https://perma.cc/Q7KW-TDF3]. 13, 2013), https://hbr.org/2013/06/who-owns-hackathon-inventions employees can arise where an organization’s Problems regarding intellectual property ownership Such problems, and the solutions to them, are beyond desire to participate in an external hackathon. article. the scope of this T where teams of people work intensely over a period, such as a day or weekend, over a period, such as a day intensely work where teams of people problem. or solution to a a service, product, to create and pitch attract hundreds of participants and are viewed as social events. attract hundreds of participants and are viewed as social computer-programmingcompetitions softwarehave therefore attracted and developers and designers. tainment/programmers-designers-descend-on-uw-madison-for—hour-hackathon/article_dac71902- 1a6f-50eb-a6b2-e66c1d6fcde1.html [https://perma.cc/5WAQ-MT7T]. 2018] marketplace in Wisconsin is competitive such organizations for and fluid. into fields such as hardware, engineering, and even art. hardware, engineering, and even into fields such as have traditionally been events open to the public, but an increasing number been events open to the public, but have traditionally of internal hackathons to motivatebusinesses are holding employees and to to problems.generate solutions “Hackathon” Competition competition, teams are typically permitted to form organically from individuals from organically competition,permitted teams to form are typically up for the event. who have signed their ideas or solutions to judges, and awards are given out. their ideas or solutions to judges, and 40672-mqi_22-1 Sheet No. 9 Side A 05/20/2019 14:43:36 A 05/20/2019 9 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 9 Side B 05/20/2019 14:43:36 77 M K C Y (2017), [Vol. 22:1 [Vol. ONTEST C As a condition of As a condition LAN 72 P USINESS B S ’ A student holds the rights to any holds the rights A student 71 . see Major League Hacking Contest Terms and see Major League Hacking Contest Terms OVERNOR 76 G .; See id Id According to the Wisconsin Technology 78 (2017), http://www.rokkincat.com/hack-n-tell/ [https://perma. (2017), http://www.rokkincat.com/hack-n-tell/ ISCONSIN D. Business Contests AT C , W ) 9/13/2018 11:46 AM Participants who progress past initial rounds in the MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. According to the program’sterms, “[p]articipants retain 79 OKKIN ELETE 75 note 64. note 69. As such, participants in Madhacks must agree to Major League note 69. As such, participants in Madhacks D (2017), https://github.com/MLH/mlh-policies/blob/master/prize-terms-and- , R OT The event is open to professionals, non-professionals, and to professionals, non-professionals, The event is open N UB supra O supra 74 H (D , IT . About the Contest INAL INAL Hack & Tell Id , G .F 73 ADHACKS 76. Id. 77. 72.Hacking. League agreement with, Major sponsorship has a by, and sanctioned is Madhacks 75. Id. 73. 74. 71. White, 78. Id. 79. Id. Another exampleHack & is Milwaukee Tell, a one-day hackathon in run Each year, a variety of organizations throughout WisconsinEach year, a variety hold contests M AMMONS 5. H 5. cc/5YLU-9BZ2]. Council, contest finalists have raised more than $200 million in venture capital raised more than $200 million in venture Council, contest finalists have and other financing. contest receive support from camp”through a “boot volunteer mentors and contest Conditions Hacking’s Contest Terms and Conditions. conditions/contest-terms.md [https://perma.cc/5FZ4-4NSH]. conditions/contest-terms.md [https://perma.cc/5FZ4-4NSH]. one to four students have twenty-four hours to build a mobile build a hours to have twenty-four to four students one application, website, software, or hardware “hack.” intellectual property he or she creates during the program.she creates during property he or intellectual Since 2004, the contest has received moreSince 2004, the contest has received than 3300 entries in four categories—advanced manufacturing, information business services, technology, and life sciences. 14 participation, however, a student must however, a student participation, and warrant represent that their work is rights of third property not infringe the intellectual and that it does their own parties. 100% their ideas.” of the ownership of See students, and participants maystudents, and participants or those brought or work on their own projects proposed by others. for startups. Many of the contests involve the submission by entrants of a judges, and cash prizes or other awards for business plan, pitches to a panel of winners. One of the more prominent Plan contests is the Governor’s Business Council. Technology the Wisconsin produced by Contest, an annual program http://govsbizplancontest.com/about/ [https://perma.cc/9AYM-UWCA]. The Wisconsin Technology and Council is a non-partisan organization created by legislative act that advises the governor legislature on science and technology matters. by a software development firm and sponsored gener8tor, Ward4,by and other organizations. 40672-mqi_22-1 Sheet No. 9 Side B 05/20/2019 14:43:36 B 05/20/2019 9 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 10 Side A 05/20/2019 14:43:36 , 15 (2017), (2017), ONTEST OURNAL C 87 , J COM . LAN P ONTEST C EETUP Startup Milwaukee , M 83 USINESS LAN B P S ’ 81 USINESS OVERNOR B (Jun. 7, 2017), http://host.madison.com/wsj S ’ Additionally, in 2016, the organization Additionally, in 84 OURNAL (2017), http://wisconsintechnologycouncil.com/events- (2017), http://wisconsintechnologycouncil.com/events- J OVERNOR , http://merlinmentors.org/about-us/ [https://perma.cc/WD4J , http://merlinmentors.org/about-us/ G TATE S , https://www.startupmke.org [https://perma.cc/W2DK-QMG6]. , https://www.startupmke.org The contest is valued for its prizes—offor valued contest is The more its than E. Social Groups Startup OUNCIL ENTORS Wisconsin Start-Ups Create Their Own Support Networks Wisconsin Start-Ups Create Their Own Support Northern Star Fire, with a Device to Help Firefighters Exit a Blaze, Northern Star Fire, with a Device to Help Firefighters C M ) 9/13/2018 11:46 AM 85 80 F. Service Organizations Startup Startup Business Meetups in Madison ISCONSIN ELETE ISCONSIN ERLIN D , ILWAUKEE , W OT M , M N , W O (D to larger organizations that hold regularly scheduled events. scheduled regularly that hold organizations to larger Some ECHNOLOGY Judy Newman, Two are notable and relevant for this Article, in part because of Two are notable and relevant for T , https://www.startupmke.org/about/ [https://perma.cc/65A8-DKJR]. , https://www.startupmke.org/about/ See, e.g. 82 TARTUP INAL INAL 86 See Mentors About Us Id. (Oct. 20, 2012), http://archive.jsonline.com/business/wisconsin-startups-create-their-own- .F ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS ENTREPRENEURSHIP IN STARTUPS FOR ISSUES 82. 87. 86. This Article lists only a sampling of entrepreneurship support programs and organizations 85. 83. Gallagher, Kathleen 80. 81. 84. S Startup social groups range fromStartup social groups smallgroups of entrepreneurs that hold Wisconsin has a variety of other organizations that serve startups in also M K AMMONS ISCONSIN ENTINEL C Y 5. H 5. in Wisconsin, many with respect to which the author has personal experience. The omission of any program. program should not be taken to reflect negatively or positively with respect to that https://www.meetup.com/topics/startup-businesses/us/wi/madison/ [https://perma.cc/Q8W4-CQ7G]. meetings. Meetup.comis a web-based platform that that facilitates group /business/northern-star-fire-with-a-device-to-help-firefighters-exit/article_be8e2b05-1eb5-5010-972f -87TV]. Wins Biz Plan Contest “meetups” various capacities, ranging from entities to government nonprofits to for-profit agencies. offers a mentorship program, an internship program, a monthly startup pitch resources. event, and web-based launched Milwaukee Startup Week, event featuring programs a weeklong to Startup Milwaukee,across the city. According by the event was attended more than 2700 people. of the groups have rules for admission,of the groups have but many do not. Startup Milwaukee, is an examplefounded in 2011, of a larger social group. information.treat confidential focus on mentorship they and how their The first organization is the Madison Innovation Entrepreneur Resource, Learning and Network (“MERLIN”) Mentors, leaders who volunteer a group of business their time the Madisonin and expertise to mentor area. entrepreneurs overview/governors-business-plan-contest [https://perma.cc/4UPV-PAEU]. overview/governors-business-plan-contest [https://perma.cc/4UPV-PAEU]. S practice pitch sessions. pitch practice 2018] http://govsbizplancontest.com/participate/mentor/ [https://perma.cc/4ECK-76W7].http://govsbizplancontest.com/participate/mentor/ W -bc5f0a6fa62e.html [https://perma.cc/6EYG-WN6P]; G $100,000 in cash and in-kind services—but in cash and in-kind $100,000 it connects startups also because with community resources, mentors, and investors. support-networks-l578vi3-175076271.html/ [https://perma.cc/JXP6-Y5KE]. 40672-mqi_22-1 Sheet No. 10 Side A 05/20/2019 14:43:36 A 05/20/2019 10 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 10 Side B 05/20/2019 14:43:36 , 90 93 M K C Y TARTS S IZ [Vol. 22:1 [Vol. , B (Nov. 16, 2013), (Mar. 21, 2009), (Oct. 12, 2012, 12:00 An overview and (10th ed. 2014); Miller, 96 , http://www.bizstarts.com/ IMES T OURNAL IZ J ENTINEL , B TARTS ROPERTY S S P ICTIONARY , http://www.bizstarts.com/program- IZ All About Bizstarts D TATE , B S AW L TARTS S S ’ OURNAL ntors, BizStarts relies on volunteer BizStarts ntors, IZ note 87, http://merlinmentors.org/meet-the- note 87, http://merlinmentors.org/meet-the- , B , J LACK ISCONSIN Mentors in MERLIN are prohibited from , B NTELLECTUAL 88 I , W supra The four principle types of intellectual property types of intellectual property The four principle , (2016), http://www.bizstarts.com/wp-content/uploads/2016/ Mentor Program Guide 95 89 TARTS ENTORS ) 9/13/2018 11:46 AM S M note 16, at 105. note 16, at IZ MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. VERVIEW OF Tech and Biotech: MERLIN Mentors Celebrate Tech and Biotech: MERLIN Mentors Celebrate Milestone; and University , B ELETE As with MERLIN Me As with 94 D supra 91 OT II. O ERLIN N O BizStarts Mentor Program Rules (D Its mentors a “program are provided guide” and must to agree .; .; M INAL INAL Id Definition of Intellectual Property BizStarts Milwaukee Receives Federal Grant Extension BizStarts Milwaukee Receives Federal Grant Mentors are Key to Startups Id Impact Report 92 .F note 16, at 105. note 16, at 95. 96. Miller, Jr., 92. 89. 93. 88. Judy Newman, 90. 91. 94. Id. The second organization is BizStarts, a nonprofit formedis BizStarts, a organization The second in 2008. Intellectual property is, defined simply, a category of intangible rights, or supra AMMONS 5. H 5. maintain any proprietary information confidentiality over provided to them. [https://perma.cc/6KC4-PL5K]. mentors. Additionally, mentors must avoid Additionally, mentors of interest withfinancial conflicts companies mentoring. they are BizStarts works with Wisconsin, and startups in southeastern entrepreneurs providing mentorshipof 2016, among other assistance. As and referral, to according entrepreneurs since its inception, 800 nearly BizStarts has assisted the organization. having financial ties to startups they are mentoringstartups they are ties to having financial and must follow guidelines. confidentiality Research Park Earns National Praise Jr., 11/Q3-2016-BizStarts-Impact-Report.pdf [https://perma.cc/83FP-W3YJ]. rules/ [https://perma.cc/JG2J-4GX2]; AM), https://www.biztimes.com/2012/industries/banking-finance/bizstarts-milwaukee-receives- federal-grant-extension-2/ [https://perma.cc/7R7W-QN6H]; discussion of each type of intellectual property follows. The discussion focuses on intellectual property ownership and transfer, the most common issues that Founded in 2008, MERLIN in 2008, Founded matches mentors with entrepreneurs provide who business development, on issues such as guidance human startup financing, property. and intellectual resources, assets, of the humanintellect. http://archive.jsonline.com/business/41607062.html/ [https://perma.cc/6AWW-YQNV].http://archive.jsonline.com/business/41607062.html/ http://host.madison.com/wsj/business/technology/biotech/tech-and-biotech-merlin-mentors- http://host.madison.com/wsj/business/technology/biotech/tech-and-biotech-merlin-mentors- celebrate-milestone-and-university-research/article_c07bfa24-5a5c-52ad-b731-0928b1211d27.html 16 mentors/become-a-mentor/ [https://perma.cc/29W4-D9H9]. http://www.bizstarts.com/about/ [https://perma.cc/L6H5-BWR6]. are copyright, trademarks, trade secrets, and patents. Moststartups encounter four. all use and some startups types, the and use several of wp-content/uploads/2016/10/Mentor-Program-Guide-BizStarts.pdf [https://perma.cc/M63D-9FVW]. 40672-mqi_22-1 Sheet No. 10 Side B 05/20/2019 14:43:36 B 05/20/2019 10 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 11 Side A 05/20/2019 14:43:36 98 17 , at 162 Startups 103 Copyright is Copyright 97 , § 2A.10[B] (2017) NTREPRENEURSHIP E OPYRIGHT C (10th ed. 2014). 2014). (10th ed. To receive protection under the To receive protection 99 IMMER ON Consequently, an entrepreneur who Consequently, an entrepreneur who ICTIONARY ANAGEMENT AND D 105 : M AW L Copyright protection generally begins at the at begins generally Copyright protection S ’ A. Copyright note 103, § 913. note 103, § 100 YBERLAW LACK , B supra , ). ) 9/13/2018 11:46 AM Startups typically have need for and use works in the have need for Startups typically IMMER 101 ELETE 102 IMMER D . art. cl. 8 (“Congress I, § 8, shall have Power . promote the Progress of . [t]o . & N OT & N N O ONST (D IMMER IMMER 17 U.S.C. §§ 101–1332 (2012). INAL INAL 11 Melville B. Nimmer & David Nimmer, N 104 Definition of Copyright .F See ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS IN ENTREPRENEURSHIP STARTUPS FOR ISSUES see 101. JCW Investments Inc. v Novelty Inc., 482 F.3d 910, 914 (7th Cir. 2007). 102. 17 U.S.C. § 102. 103. Margo Reder, et al., C 100. § 102(a). A work is “original” if it “was independently created by the 17 U.S.C. 99. 98. U.S. C 104. N 97. 105.102(b). they § what 17 U.S.C. protect to It is for entrepreneurs seek not uncommon to Copyright protection does not extend to any idea, procedure, process, Copyright protection does not extend Under the Copyright Act, works of authorship fall into eight categories: (1) eight categories: Act, works of authorship fall Under the Copyright into Copyright is a property right in a work of authorship. right in a work is a property Copyright M K AMMONS C Y 5. H 5. author . . . and . . . it possesses at least some minimal degree of creativity.” Feist Publ’ns, Inc. v Rural author . . . and . . . it possesses at least some minimal work is fixed in a tangible medium of expression when Tel. Serv. Co., 499 U.S. 340, 345 (2013). A “it [is] embodi[ed] a material objec[t] . . . from which the work can be perceived, reproduced, or in v Varsity Brands Inc., 137 S.Ct. 1002, 1008 (2017) otherwise communicated.” Star Athletica, LLC omitted). (internal quotations marks omitted) (citation Science and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to Times to Authors . . . the exclusive Right to Science and useful Arts, by securing for limited their . . . Writings[.]”) system, method or discovery, regardless of the of operation, concept, principle, form it is embodied in which in a work. literary works; musical (2) works; (3) dramatic works; (4) pantomimes and works; (6) motion (5) pictorial, graphic, and sculptural choreographic works; recordings; and (8) audiovisual works; (7) sound pictures and other architectural works. also commonly develop or have developed for them works in the fifth category, fifth works in the for themhave developed or develop also commonly which may encompassa design mark) logos (also known as and website graphics. “literary works” category, a broad one encompassing items as computer such programs, technical documentation, posts, and website text, blog databases, ebooks, provided the requirements of the Copyright Act are met. (2015); moment of creation. (hereinafter N 2018] Act of 1976, as amended.and the Copyright arise for startups participating in entrepreneurship support programs. support entrepreneurship in participating for startups arise 1. Overview of Copyright governed almost exclusively by federal law, specifically the U.S. Constitution law, federal specifically by governed almost exclusively Copyright Act, a work of authorship mustCopyright Act, a original and (2) fixed in a be (1) of expression. tangible medium 40672-mqi_22-1 Sheet No. 11 Side A 05/20/2019 14:43:36 A 05/20/2019 11 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 11 Side B 05/20/2019 14:43:36 M K 113 108 C Y A 115 [Vol. 22:1 [Vol. A work is is A work 114 An author may a work with register 106 4, at 7 (2017), https://www.copyright.gov/circs/circ For a work made hire, discussed below, for 109 110 IRCULAR C Registration does, however,Registration does, multiple confer benefits, ) 9/13/2018 11:46 AM FFICE MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. O 107 ELETE D OT N O OPYRIGHT (D § 201(a). . § 302(c). . § 111 § 106. § 408(a). Id. Id . . § 201(b). . § 101. INAL INAL The authors of a joint work are co-owners of copyright in the work. The authors of a joint work are co-owners Id Id Id Id. Id. .F 112 112. 113. 114. 115. 110. 17 U.S.C. § 302(a). 111. 106. 107. 108. 17 U.S.C. § 411(a); 19 C.F.R. § 133.31 (2017); U.S. Copyright 108. 17 U.S.C. § 411(a); 19 C.F.R. § 133.31 (2017); Office Circular 1, at 5 109. U.S. C A copyright owner has up to six exclusive rights, depending on the nature on the nature rights, depending to six exclusive owner has up A copyright For works created on or after January 1, 1978, copyright lasts for the life of 1, 1978, copyright lasts for the life January For works created on or after As or authors of the a general rule, copyright vests initially in the author AMMONS 5. H 5. 2.Transfer Ownership and Copyright Filing fees are relatively low, ranging fromFiling fees are relatively low, ranging thirty-five to eighty-five dollars for basic copyright registration. 04.pdf [https://perma.cc/V9L5-MJKL]. (2017), https://www.copyright.gov/circs/circ01.pdf (2017), https://www.copyright.gov/circs/circ01.pdf [https://perma.cc/YS9W-JEZN]. considered made for hire in two situations. The first situation is wherework a is prepared by an employee within scope of his or her employment. the has an idea for a new business product or service not yet in the marketplace not yet in service product or a new business idea for has an to protect that idea. on copyright law cannot rely the work; (2) (1) to reproduce of the work: (3) to derivative works; to prepare to publicly the work; (5) perform to publicly (4) copies to the public; distribute to publicly performfor sound recordings, work; and (6) display the the work by means audio transmission. of digital the author plus seventy years. including (1) establishing a public record of the copyright claim; a public record of the copyright including (1) establishing (2) allowing a legal presumption creating (3) federal court for copyright infringement; suit in are valid; (4) registration certificate in the copyright that the facts stated award of statutory damagesallowing a potential and attorney’s fees, if certain registration with the the of recordation (5) allowing conditions are met; and copies. of infringing U.S. Customs Service for protection against importation In the case of a “work made however, the employer for hire,” or other person for whom the work was is considered the author. prepared marketplace. believe is a unique idea, not yet existing in the copyright lasts the earlier of 120 years after creation or ninety-five years from after copyright lasts the earlier of 120 years publication. 18 the Unitednot registration is Office, States Copyright a condition of but copyright protection. work. 40672-mqi_22-1 Sheet No. 11 Side B 05/20/2019 14:43:36 B 05/20/2019 11 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 12 Side A 05/20/2019 14:43:36 For , 19 AW 119 L RACTICAL , P Section I.A. note 16, at 108. note 16, at see supra supra ., R , J 116 an individual (an engineer, software developer, an individual (an engineer, software ILLER Intellectual Property Rights: The Key Issues 121 ) 9/13/2018 11:46 AM The most common conveyance used by companies is an note 16, at 108–09. ELETE D 118 OT N supra O , (D Consequently, this second work madeConsequently, this applies for hire situation ILLER . INAL INAL Id 117 .F 120 ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS IN ENTREPRENEURSHIP STARTUPS FOR ISSUES 121. For a discussion of The Commons, 118. 17 U.S.C. § 201. 119. David Marsh, et al., 116. 120. 17 U.S.C. § 204(a). 117. M (2) the work to a i.e., it is a contribution one of nine categories, falls into (3) have the parties expressly agreed in a signed, written instrument that the The second situation is where an independent contractor prepares a work contractor prepares an independent situation is where The second (1)commissioned; ordered or the work is specially The nine categories of works listed in the second condition do not of works listed in the second The nine categories Startups participating in support programs face several risks with respect to Startups participating in support programs If neither the first nor the second situation applies, copyright ownership If neither the first nor the second M K AMMONS C Y 5. H 5. and three conditions are met:and three encompass software or manyencompass software to be created for other types of works likely startups. 3.Programs Copyright Risks for Startups Participating in Support infrequently to startups, even if the companyinfrequently to startups, a written has agreement with a contractor. collective work, part of a motioncollective work, audiovisual work, a or other picture translation, a supplementary work, a compilation, text, a test, an instructional and answer material for a test, or an atlas; hire. work is a work made for assignment, maywhich be used for existing as well copyrights. as future an assignment to be effective, it must be in writing and signed by the copyright the signed by and writing in an assignment to be effective, it mustbe owner. 2018] written agreement this situation. in is not required graphic designer, etc.) is partnered or allowed to partner with a specific startup. not to discuss individual for the startup and For such programs,is common it in the author’s experience. No moneythe nature of their relationship, that the individual is an employeeexchanges hands, there is no understanding does not sign a writtenof the startup, and the individual assignment. independent as an classified be individual will likely Consequently, the Practice Note 2-500-4365 (2017); M copyright ownership. In some instances, the risks arise from the support programs themselves.example, For with hackathons and certain accelerators, such as The Commons, mayany means be transferred in whole or in part by of conveyance or by operation of law. 40672-mqi_22-1 Sheet No. 12 Side A 05/20/2019 14:43:36 A 05/20/2019 12 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 12 Side B 05/20/2019 14:43:36 , , M K 127 128 C Y LLCs OFTWARE 125 S [Vol. 22:1 [Vol. NSTITUTIONS I REE , F 123 INANCIAL F med by filling out a online form simple by med It is also common,It is also in the author’s 124 EPARTMENT OF see GNU General Public License General see GNU D . at 140; . at Id ISCONSIN Moonlighting Founders: 5 Steps to Help Protect Your Company W ) 9/13/2018 11:46 AM Consequently, in either situation—whereConsequently, in the startup MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. note 16, at 140–41. Open source software is software in which the note 103, at 376. note 103, at See ELETE D 126 Section II.C. OT supra supra N , , O Even if the support programEven if the has terms such as of participation, (D Danielle Naftulin, Wood v. Lesnick, 725 F. Supp. 2d 809, 824–25 (W.D. Wis. 2010). EDER 122 ILLER , https://www.gnu.org/licenses/gpl-3.0.en.html [https://perma.cc/XXY9-U299]. [https://perma.cc/XXY9-U299]. , https://www.gnu.org/licenses/gpl-3.0.en.html See supra INAL INAL LLP, https://www.cooleygo.com/moonlighting-founders-5-steps-to-help-protect-your- See See .F 124. R 126. 127. M 123. 128. 122. as either employees or independent A full analysis of the classification of workers 125.can be for company A Wisconsin limited-liability In other instances, the risks do not arise directly from do not arise directly the risks In other instances, the support program Startups should also be aware that the individual with whom the individual Startups should also be aware that they are AMMONS OOLEY OUNDATION 5. H 5. contractors is beyond the scope of this paper. contractors is beyond the scope of this company/ [https://perma.cc/7UHA-D58C]. C experience, for startups to offer equity and “co-founder” status to a worker in to offer equity and “co-founder” experience, for startups relationship. employer-employee traditional or a lieu of pay particularly is This problematic for startups that are limited-liability companies (“LLCs”). https://www.wdfi.org/apps/CorpFormation/directions.aspx?type=12 [https://perma.cc/76X6-QWJB]. of Wisconsinamount startups begin, in the author’s Due to the low cost and ease of formation, a fair attorney. experience, by a founder forming a Wisconsin of an LLC without the assistance contractor, and the startup will the startup and contractor, any works to the copyright not hold by created him or her. are typically structured as partnerships, and partners (i.e., co-owners) are and as partnerships, are typically structured as employeesgenerally not regarded partnership under common of the law agency principles. F Second, if an individual is “moonlighting”—i.e., in the they are participating hackathon or other support program outside their normal employment—the prepare for the startup. individual’s employerrights to works might they hold 20 engages a worker as an independent contractor or a co-owner in an LLC—the as an independent contractor engages a worker startup will not own the copyright absent a written assignment by the signed contractor. engaging might the copyright to works he or she authors or is not hold purportedly authoring. This may result in a couple ways. First, the individual might copyrighted works of others—e.g., incorporate source or open proprietary, third-party software—into works they create for the startup. itself, but rather as a result of a startup being connected with a potential co- connected with of a startup being rather as a result itself, but through the program.owner or future hire It is common for cash-poor startups to hire workers as independent contractors. MadHacks, terms those copyright ownership generally state that with remains to the startup. does not transfer participant and the individual and paying $130. copyright holder licenses to the public certain uses of the software. For example, software made copyright holder licenses to the public certain uses of the software. For example, software used, available under the General Public License of the Free Software Foundation may be freely anyone. by redistributed modified, and 40672-mqi_22-1 Sheet No. 12 Side B 05/20/2019 14:43:36 B 05/20/2019 12 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 13 Side A 05/20/2019 14:43:36 , 131 129 and AW 21 L 132 133 (Apr. 8, 2013), RACTICAL , P AB L [https://perma.cc/P3C5- AW L PEN , O note 16, at 49, 118. note 16, at 49, supra . R A startup participating in a hackathon A startup participating in a hackathon , J 134 ILLER note 16, at 141. note 16, at Legal Planning for Hackathoners ) 9/13/2018 11:46 AM supra ., R note 130. note 118; M 130 ELETE , J D OT supra supra N in Section II.A.4,in Section to mitigate them. ILLER O (D infra See, e.g., Independent Contractor/Consultant Agreement (Pro-Client) INAL INAL .F ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS IN ENTREPRENEURSHIP STARTUPS FOR ISSUES 131. Marsh, 129. generally apply outside of the context of entrepreneurship support These best practices 130. Margaret Hagen, 134. Hagen, 132. See M 133. Second, as a general rule, startups should enter into written agreementsinto withenter shouldrule, startups as a general Second, Startups participating in support programsin support few relatively engage in a should Startups participating In limited circumstances, mayit be in for a startup to participate reasonable M K AMMONS C Y 5. H 5. programs, too. 4. Protection Copyright Practices for Startup ownership. to copyright respect risks with reduce to practices straightforward all persons—employees, LLC members)— contractors, and co-owners (e.g., that, at a minimum, by (1) provide that all copyrightable work product created made for of their employmentthe person withinis a work the scope or services of (2) assigns to the startup full ownership hire under the Copyright Act; and madeall work product that is not work for hire under the Copyright Act. http://www.openlawlab.com/2013/04/08/legal-plan-for-hackathoners/ 5YZB]. an entrepreneurship support program without written agreements in place with other participants. This is most transactional costs of likely to occur where the program, the the nature of light of in agreement are high written a into entering will workand the likelihood of a copyrightable being produced that the startup use are low. For example, code written a one or two-day during software hackathon is often discarded. Additionally, startups should require employeesAdditionally, startups should require to identify any of their work thatproduct, e.g., open source software, might be subject to a license, 2018] (in First, before a startup person any capacity) engages a new it, the to work for startup should determine to any agreements— whether that person is subject such as an assignment agreement or former with a current employer—that work product. If the person is subject might impactthat person’s ownership of to such an agreement,the engagement, consider declining the startup should the agreementuntil employer, or waiting that person’s a waiver from requesting force. is no longer in Startups should be aware of these risks of these be aware should Startups those such as steps, take and actively discussed Form 2-500-4638, at § 7.1(f) (2017). Form 2-500-4638, at § 7.1(f) should require contractors to represent and warrant that their work product is should require contractors to represent parties. property of third original and does not infringe the intellectual primarily social purposes for networking or might reasonably therefore decide 40672-mqi_22-1 Sheet No. 13 Side A 05/20/2019 14:43:36 A 05/20/2019 13 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 13 Side B 05/20/2019 14:43:36 , M K C Y FFICE O 140 , [Vol. 22:1 [Vol. Filing fees FFICE O federal law— 143 136 RADEMARK The term “service T A generic mark is a 138 141 RADEMARK T 135 ATENT AND P ATENT AND , U.S. P TATES S B. Trademarks NITED The Lanham Act defines a trademark as “any word,Act defines a trademark The Lanham , U 137 ) 9/13/2018 11:46 AM MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D Section II.A.2. The startup should attempt to enter into the copyright Section II.A.2. The startup should attempt to enter , 505 U.S. at 768. , 505 U.S. at OT N O The latter three categories of marks are deemed inherently (D § 1127. A trademarkname. also commonly is as a brand referred to 142 See supra Id. Id. Trademark Application Fee Structure Two Pesos INAL INAL 139 144 .F . Trademark Basics 136. First Wis. Nat. Bank of Milwaukee v. Wichman, 270 N.W.2d (Wis. 168, 171 1978). 137. 15 U.S.C. §§ 1051–1072 (2012). 138. 139. 140 142.(1985). Park ‘N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194 143. 144. 141. Two Pesos v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992) (citing Abercrombie & Fitch 135. A key word of the statutory definition is “distinguish,” as a mark is “distinguish,” mustA key word of the statutory definition Trademarks Although by both federal and state law. are governed AMMONS 5. H 5. Co. v. Hunting World,1976)). Inc., 537 F.2d 4, 9 (2d Cir. assignment as soon as possible after the hackathon, the when value of the work the lowest. is likely for federal registration range from $225 to $400 per class of goods or services. distinctive and are entitled to protection under the Lanhamdistinctive and are entitled to protection Act. https://www.uspto.gov/trademarks-getting-started/trademark-basics [https://perma.cc/3322-J6B4]. https://www.uspto.gov/trademarks-getting-started/trademark-basics [https://perma.cc/3322-J6B4]. marks” is the similarly,defined it is except services as opposed used in case of to forgo a writtento forgo agreement with program. it in the assisting a person In the the startup during the event, work is produced event a copyrightable unlikely may via a copyright assignment. later purchase it https://www.uspto.gov/trademarks-application-process/filing-online/trademark-application-fee- structure [https://perma.cc/G28S-9M8V]. achieve a certain level of distinction to receive trademarkachieve a certain level of distinction protection. Marks increasing distinctiveness: (1) generic, (2) are often classified in categories of or (5) fanciful. descriptive, (3) suggestive, (4) arbitrary, 22 1.Trademarks Overview of of Wisconsin,the common law under trademarks are protected specifically the Lanham Act the Lanham of 1946, amended—providesas the primaryspecifically source protection. of trademark term that simply refers to the particular product or service, for example, WATER for bottled water. Generic terms eligible for trademark are not protection. name, symbol, or device, or any combination thereof . . . [used] to identify and name, symbol, or device, or any combination thereof . . . [used] to identify including a uniquedistinguish . . . goods, product, from those manufactured or to indicate the source of the goods[.]” sold by others and to goods. 40672-mqi_22-1 Sheet No. 13 Side B 05/20/2019 14:43:36 B 05/20/2019 13 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 14 Side A 05/20/2019 14:43:36 23 assign individuals assign individuals 145 If a startup finds itself 148 Consequently, the startup will not own the C. Trade Secrets note 103, § 913. 146 supra , ) 9/13/2018 11:46 AM ELETE note 119. D IMMER OT . § 134.90 (2015–2016). Section I.A. N & N O supra TAT (D Trade secrets are addressed in federal law,Trade secrets are addressed in federal in pertinent part, in 147 . S 17 U.S.C. § 201 (2012). a trademark does not contractor) startup or an independent (e.g., a IS IMMER INAL INAL 149 See supra See .F ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS IN ENTREPRENEURSHIP STARTUPS FOR ISSUES owns 148. Marsh, 149. W 145. 146. N 147. The primary with copyright. It is not risk that does arise is actually one Of property, trademarks of intellectual all the types fewest give rise to the Fortunately, failure of a startup to own copyright to a logo or other graphic copyright to a logo or other Fortunately, failure of a startup to own Trade secrets are governed by state law and federal law. state law Trade secrets are governed by Wisconsin, as with M K AMMONS C Y 5. H 5. arise as it does with copyright. Another business mightarise as it does with goods or services sell similarunder a confusingly mark—whichmight to a claim give rise for trademark infringement—but result in the loss of the original does not that trademark rights, provided the elements owner’s of the Lanham Act are met. uncommonuse friends, family, for cash-poor startups to or inexpensive contractors (e.g., design graphic students) to design their branding and business logos. Indeed, some programs, such as The Commons, issues when a startup participates in an entrepreneurship support program. support in an entrepreneurship a startup participates issues when TrademarksThe question of one business. associated with are, by definition, who copyright to that logo or graphic unless the individual has signed a written the individual unless copyright to that logo or graphic assignment. or pictorial work is not fatal, as the startup mayor pictorial work is not fatal, as negotiate a copyright assignment who authored the work. with the person with graphic design backgrounds to a startup. As noted, logos and business As backgrounds to a startup. with graphic design graphics may works, provided the as pictorial or graphic be copyrightable statutory elements are met. 1. Overview in such a situation, it should attempt to obtain the copyright assignment as soon it should in such a situation, as practicable. As value of the work the startup rises in valuation, the will rise inexperienced graphic designers are often as well. In the author’s experience, to a logo or other design authored surprised to learn they still hold copyright support programduring or in connection with an entrepreneurship and are less. willing to sign a copyright assignment for a low fee, sometimes $100 or most states, has adopted the Uniform(“Wisconsin Trade Secrets Act UTSA”). 2018] 2. Solutions Trademark Risks and chapter 90 of title 18 of the United States Code, entitled “Protection of Trade Code, entitled “Protection of United States the of title 18 of chapter 90 40672-mqi_22-1 Sheet No. 14 Side A 05/20/2019 14:43:36 A 05/20/2019 14 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 14 Side B 05/20/2019 14:43:36 , M K 153 156 C Y [Vol. 22:1 [Vol. Identifying the . Id 155 Encap, LLC v. Scotts Co., LLC, 2014 WL see Such items, however, are not trade secrets Such items, however, are not trade . L.J. 470, 503 (2016–2017). 157 ECH T Defend Trade Secrets Act of 2016: Protecting Trade Secrets Defend Trade Secrets Act of 2016: Protecting 154 note 16, at 110; IGH ) 9/13/2018 11:46 AM H Federal trade secret lawFederal trade does not preempt state law. MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE supra and the Defend Trade Secrets Act of 2016 (“DTSA”), a Act of 2016 Trade Secrets and the Defend 152 LARA D ., C (Nov. 1, 2016), http://www.wisbar.org/NewsPublications/WisconsinLawyer/ R OT . § 134.90(1)(c) (2015–2016). 151 N , J O TAT ANTA (D That chapter encompasses chapter That two major legislation: of federal pieces . S AWYER § 1832. (to be codified at 18 U.S.C. § 1838). ILLER IS L INAL INAL 150 , 33 S Id. Id. .F 151. 153. 155. W 154. Erin M. Cook et al., 156. Defend Trade Secrets Act of 2016 (to be codified at 18 U.S.C. § 1839); 150. 18 U.S.C. §§ 1831–1835 (2012). No. 114-153, § 2(c), 130 Stat. 376, 380 (2016) L. 152. Defend Trade Secrets Act of 2016, Pub. 157. M are reasonable under the circumstances. are reasonable under the Federal law defines “trade secret” consistent with the WisconsinFederal law defines “trade secret” consistent UTSA, The Wisconsin “information, UTSA defines “trade secret” as including a 1. information The economic derives independent or value, actual potential, fromnot being readily being generally known to, and not proper meansascertainable by can obtain by, other persons who use. economic value from or its disclosure 2. The information is the subject of efforts to maintain its secrecy that The statutory definition of trade secret has two key components—theThe statutory definition of trade AMMONS ISCONSIN 5. H 5. Trade Secrets at Issue in Litigation Under the Uniform Trade Secrets Act and the Federal Trade Trade Secrets at Issue in Litigation Under the Uniform Trade Secrets Act and the Federal Secrets Act formula, pattern, compilation, program, device, method,technique or process to whichof the following all apply: simplifying of whether the analysis information is a trade secret or not. informationthe efforts to maintain itself, and secrecy. With respect to the first component, many items of import to startups may fall within the meaning of “information”: business plans and strategies, manufacturingtechniques, pricing and margin information, internal manuals, results from product testing, web analytics, financial statements, customer and supplier lists, personnel information, recipes, and more. (to be codified at 18 U.S.C. § 1836(b)). Among other things, the trade secret at issue must relate to a Among other things, the (to be codified at 18 U.S.C. § 1836(b)). in interstate or foreign commerce. product or service used, or intended to be used, [https://perma.cc/V6EZ-YZW2].Pages/Article.aspx?Volume=89&Issue=10&ArticleID=25197 4273302, at *5 (E.D. Wis. Aug. 28, 2014) (listing examples of trade secrets in other cases, including W the Economic made (“EEA”), which Act of 1996 Espionage trade secret theft crime;a federal significant change in federal law granting the right for a private party to bring right for a private law granting the change in federal significant trade secret misappropriation, civil action for a federal certain provided are met.conditions Secrets.” 24 A party mayfor trade secret misappropriation under have remedies therefore law. both state and federal 40672-mqi_22-1 Sheet No. 14 Side B 05/20/2019 14:43:36 B 05/20/2019 14 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 15 Side A 05/20/2019 14:43:36 163 25 An overview of Whether efforts are 161 159 , 2014 WL 4273302, at *2. , 2014 WL 4273302, at 158 in Part II.C.2.c of this Article. in Part II.C.2.c of this see Encap, LLC 164 , ch. 4, tit. 18, § 18.03 (Matthew Bender ed., 2017). 2017). , ch. 4, tit. 18, § 18.03 (Matthew Bender ed., infra ECRETS Additionally, information patentable that is neither S note 16, at 110; 111. note 16, at ) 9/13/2018 11:46 AM 162 RADE T supra supra ELETE a.Startup Creation of Information for a ., ., D R R OT . § 134.90(1). , J , J However, courts have interpreted the Wisconsin courts have interpreted However, UTSA as N O TAT (D 160 . at 112. . at . at 110. . at ILLER ILGRIM ON ILLER . S Id Id IS INAL INAL .F ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS IN ENTREPRENEURSHIP STARTUPS FOR ISSUES 164. 159. M 161.2008). Maxpower Corp. v. Abraham, 557 F. Supp. 2d 955, 961 (W.D. Wis. 162. M 158. W 160. M 163. Startups are in the business of bringing a new good or service to market.Startups are in the business of bringing The second component—reasonableThe second to maintain efforts secrecy—is often Trade secret rights, unlike with copyright and patents, can last perpetually unlike with copyright and patents, Trade secret rights, Startups participating in entrepreneurship support programsStartups participating in entrepreneurship face three M K AMMONS C Y 5. H 5. 2.Programs Trade Secret Issues Arising with Support That involves the creation of a significant amount of new information by people people amountThat involves the creation of a significant new information of by internal to the company and sometimes external to it as well. A startup or copyrightable—such as an idea—may some in instances be eligible for the statutory elementsprotection under trade secret law, provided are met. requiring more than engaging in normal business practices, such as simply to a facility and requiring passwords.restricting access regarded as the mostregarded important element a trade secret. of an operating manual, a proprietary manufacturing process, customer lists, vendor lists, pricing and an operating manual, a proprietary manufacturing compiled product data). margin information, and a spreadsheet with uniquely Although trade secrets do not incur filing or registration fees, business costs for filing secrets do not incur Although trade high. protecting trade secrets can be 2018] under the Wisconsinunder other elements the unless UTSA component the first of are met, i.e., they must have “economic value” from“generally not being known as competitors by persons, such ascertainable” to” or “readily to a from could obtain value startup, who it. if maintained properly. practices for a startup participating in an entrepreneurship support program support to an entrepreneurship participating in practices for a startup is discussed protect trade secrets “reasonable” depends on the particular enterprise and the nature of the on the particular enterprise “reasonable” depends information. general areas secrets: creation of risk with respect to trade of work product that secret; disclosure of trade secrets to trade a startup would like to protect as a These risks are magnified during secrets. third parties; and protection of trade support programa startup’s participation in an entrepreneurship due to the many interactions, often informal, with capacities. A people in varying follows. discussion of the three areas of risk 40672-mqi_22-1 Sheet No. 15 Side A 05/20/2019 14:43:36 A 05/20/2019 15 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 15 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 170 Hicklin Engineering, Hicklin Engineering, 167 Under Wisconsin law, a 171 note 16, at 111. note 16, at supra ., R For example in , J 166 ILLER § 7.01. 439 F.3d at 349. 439 F.3d at ECRETS S Additionally, the contractor must know, or should note 16, at 112. note 16, at Startups are therefore advised to enter into writtenStartups are therefore advised to RADE ) 9/13/2018 11:46 AM T 168 MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. This is true whether an employeeThis is true officer of the is an 169 supra ELETE ., D 165 b. Disclosure of Information by a Startup R OT , J N ILGRIM ON , the Seventh Circuit, applying Wisconsin, the Seventh Circuit, “[a] law, noted that . O (D ILLER . See id Id Hicklin Engineering, L.C., . at 350. INAL INAL Id .F 168. 169. 170. M 167. 165. Hicklin Engineering, L.C. v. Bartell, 439 F.3d 346, 349 (7th Cir. 2006); 17 U.S.C. § 101 166. 171. 2-7 M Independent contractors, on the other hand, presumptively work own on the other Independent contractors, A separate but related area of risk is where a startup has an existing, valid where A separate but related area of risk is As a general rule, a company trade secrets to a person or may disclose For an independent contractor’s work product for a startup to be protectable for product contractor’s work independent an For AMMONS 5. H 5. product they develop during a service relationship and may during a service relationship product they develop use that work product with or customers. other clients trade secret but shares it with a third party. For example,trade secret but shares it with a third a food startup might desire to disclose a recipe to a manufacturing facility, or a software startup might desire to disclose a business plan and strategy to a mentor. another business and maintain the company’s trade secret rights so long as a confidential relationship exists between the parties. (2012); 1-5 Milgrim on Trade Secrets § 5.02; M agreements where a contractor particularly items, addressing the preceding startup. mightdevelop valuable, confidential information for the business or a lower-level hourly worker. worker. or a lower-level hourly business under therefore operate startup may A the presumption that, if an employee information creates for it, the information as the elements the Wisconsin of UTSA so long as a trade secret is protectable are met (i.e., the information generally known, and subject to is valuable, not to maintainreasonable efforts for avoidance of doubt, However, its secrecy). to enter into writtenstartups are advised agreements with employees addressing information. ownership and confidentiality of generally owns work product, including information, including product, work owns generally by its developed employees, of a written even in the absence agreement work and even if the is not copyrightable. as a trade secret, ownership of the work product mustas a trade secret, ownership of the be assigned upon its creation to the startup. 26 reasonably know under the circumstances, that the work product is a trade secret of the startup. L.C. v. Bartell software programmer, Z, who contractor for Client independent working as an a database maydevelops a novel way to organize re-use the source code for another client’s project, unless he promises otherwise.” 40672-mqi_22-1 Sheet No. 15 Side B 05/20/2019 14:43:36 B 05/20/2019 15 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 16 Side A 05/20/2019 14:43:36 177 The 27 175 There are There are 172 In that situation, a note 16, at 112. 178 The startup should also The startup should supra A critical step is entering A critical step is entering 173 ., in Section II.C.2.c. in Section R 176 174 Section II.F. , J infra ILLER See supra 179 § 7.01; M § 7.01. ECRETS ECRETS S S § 5.02. note 16, at 112; Fail Safe, LLC v. A.O. Smith Corp., 674 F.3d 889, note 16, at 112; Fail Safe, LLC v. A.O. Smith note 16, at 111. note 16, at RADE RADE T ) 9/13/2018 11:46 AM T note 13, at 164, 169. note 13, at 164, supra supra ECRETS ELETE S ., ., D R R supra OT , J , J N ILGRIM ON ILGRIM ON RADE O T Burbank Grease Services, LLC v. Sokolowski, 717 N.W.2d 781, 796–97 (Wis. 2005); Services, 717 LLC v. 796–97 (Wis.N.W.2dSokolowski, 781, Burbank Grease (D ILLER ILLER See INAL INAL .F ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS IN ENTREPRENEURSHIP STARTUPS FOR ISSUES ILGRIM ON 179. entrepreneurs oftentimes either (i) overreach, believing most In the author’s experience, 178. Bernthal, 172. 173. 2-7 M 176. M 174. M 177. Merlin Mentors and BizStarts are two examples of support programs in Wisconsin that 175. 2-7 M Loss of trade secrets through disclosure is an area of high risks to startups Loss of trade secrets through disclosure A startup desiring to share trade secrets with any person (employee, with any to share trade secrets A startup desiring M K AMMONS C Y 5. H 5. of their company-related information is a trade secret; or (ii) under reach, treating little to no company- no to little treating under reach, or (ii) secret; is a trade information their company-related of a trade secret. as information related counsel determine to working with Startups therefore benefit from not. if particular information is a trade secret or 1-5 M 893–94 (7th Cir. 2012) (applying Wisconsin law). 893–94 (7th Cir. 2012) (applying Wisconsin confidentiality agreement should not withduration respect to be one of limited trade secrets; otherwise, when the agreement terminates, the it can be argued information is no longer a trade secret. disclosed do require mentors to sign confidentiality agreements. into a confidentiality agreementinto a confidentiality with of the trade secret. the recipient contractor, mentor, etc.) or business is therefore advised to take steps to ensure is therefore advised to take steps contractor, mentor,business etc.) or relationship does, in that a confidential fact, exist. startup need not be resigned to not working with the mentor.with be resigned to not working need not startup and can it Rather, should interact with the but mentor not disclose information that is truly a trade business. secret and core to the startup’s Indeed, many and venture capital investors refuse to sign confidentiality angel agreements among for fear of liability, other reasons. 2018] confidential relationship exists most exists relationship confidential key and other officers with clearly employees, them that obligates duty of loyalty who owe a fiduciary not to use or disclose confidential information to their employer’s detriment. no other clear categories or types of relationships wheretypes of disclosure is permitted. categories or no other clear examineRather, courts to determinea case-by-case basis facts on if a implied. relationship mayconfidential reasonably be take steps with respect to the information as marking itself, such it as other efforts, stated confidential and engaging participating in entrepreneurship support programs.participating in entrepreneurship support As previously discussed, with, manystartups are introduced to, and interact people through support programs—potential or actual mentors, service providers, customers, and business partners, among In some others. instances, such as with certain accelerators, startups will be encouraged to disclose information to mentors even though the mentors signed a confidentiality agreement. have not Confidentiality agreements are commonly called non-disclosure agreements, or NDAs. non-disclosure agreements, or Confidentiality agreements are commonly called 40672-mqi_22-1 Sheet No. 16 Side A 05/20/2019 14:43:36 A 05/20/2019 16 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 16 Side B 05/20/2019 14:43:36 , M K C Y ILLER 182 [Vol. 22:1 [Vol. In some cases, it will be 180 § 18.03; Maxpower Corp. v. Abraham, 557 F.Supp.2d § Abraham, Corp. v. 18.03; Maxpower Protecting Corporate Trade Secrets in the Age of Personal ECRETS S 181 RADE c. to Maintain Efforts Secrecy T ) 9/13/2018 11:46 AM MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D Section I.B. OT . http://www.driven-inc.com/protecting-corporate-trade-secrets- (Aug. 10, 2016), N ILGRIM ON O NC I (D Marking documents containing trade secrets with “Confidential” trade or documentsMarking containing “Top Secret”; Disclosing sensitive information who only to individuals “need to know” it; documents files and containing Password protecting electronic trade secrets; networks; Controlling and limiting to computers access and Google personal clouds (e.g., Adopting a policy limiting use of and Drive, Box, and Dropbox) for company information; they employeesConducting exit interviews for departing to ensure possession. return or delete confidential information in their Entering into confidentiality agreementsEntering into confidentiality with employees, parties to whomindependent contractors, and other trade secrets disclosed; will be Entering into non-competition non-solicitation agreements and with employees; Informing employees contractors of the and independent confidential; importance of keeping trade secrets See supra INAL INAL .F note 16, at 112. note 16, at • • • • • • • • • RIVEN , D 181.or current that a the likelihood help reduce agreements Non-compete and non-solicitation 182. 4-18 M 180. The open, informalThe open, of many nature programs support entrepreneurship can To protect trade secrets, startups are advised to engage in the following advised to engage in the startups are To protect trade secrets, supra AMMONS ., R 5. H 5. former employee will disclose trade secrets to a business competitor or customer. former employee will disclose trade secrets to a business competitor or significantly impingesignificantly efforts to maintain a startup’s confidential secrecy of information. Encouragement by programs information to disclose to third agreement non-disclosure the absence of a parties in example. is one Another co-working startups work. Popular example location in which is the physical in Madisonspaces such as 100state and Ward4 in Milwaukee are communal and share alongside one another environments work where entrepreneurs printers, and other resources. conference rooms, prudent for a startup to moveprudent for a startup to a more its operations secure location. In other to workinginstances, the benefits in the space might outweigh the the risks to rights. trade secret startup of losing its practices: 955, 961 (W.D. Wis. 2008); Philip Favro, Clouds in-the-age-of-personal-clouds/ [https://perma.cc/JJP9-KTWT] (last visited Sept. 7, 2017); M 28 J 40672-mqi_22-1 Sheet No. 16 Side B 05/20/2019 14:43:36 B 05/20/2019 16 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 17 Side A 05/20/2019 14:43:36 184 To 29 188 And plant 192 Utility patents A United States States A United 193 189 187 There are three types of patents There are 190 (2017), Resource ID 8-509-4160. at 24 (2016), https://www.uspto.gov/sites/default/files AW D. Patents L Design patents are for the invention a new, Design patents are for the invention 194 FFICE O With United exceptions, States patents last for a 191 [https://perma.cc/5DCM-3HPY]. The right to exclude is an importantThe right to exclude it can one, as 186 RACTICAL note 16 at 105. 185 ) 9/13/2018 11:46 AM , P RADEMARK supra and title 35 of the United States Code, entitled “Patents.” entitled Code, of the Unitedand title 35 States ELETE T D ., . art. 1, § 8, cl. 8 (“Congress shall have Power . . . [t]o promote the Progress . art. 1, § 8, cl. 8 (“Congress shall have Power R 183 OT , J N O ONST (D § 171. § 161. § 101. § 154(a)(1). § 217(a). ILLER Id. Id. Id. U.S. Patent and Trademark Office Performance and Accountability Report Fiscal Year Id. Id. Patent: Overview ATENT AND INAL INAL .F ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS ENTREPRENEURSHIP IN STARTUPS FOR ISSUES 185. 186. M 184. 35 U.S.C. §§ 1–390 (2012). 192. 193. 194. 183. U.S. C 190. 35 U.S.C. §§ 101–103, 112. 191. 187. 35 U.S.C. § 154(a)(2). One exception is 187. 35 U.S.C. § 154(a)(2). One exception is which have a term of fifteen design patents, 188. 189. , U.S. P As with copyright, patents are governed patents As with copyright, the by federal law, specifically, To receive a United States patent, the invention must useful, non- be novel, the patent, receive a United States To M K AMMONS C Y 5. H 5. 1. of Patents Overview 2016 /documents/USPTOFY16PAR.pdf of Science and useful Arts, by securing for limited Times to . . . Inventors the exclusive Right to limited Times to . . . Inventors the exclusive Right to of Science and useful Arts, by securing for their . . . Discoveries[.]”) years from the grant date, for those filed after May 13, 2015. 35 U.S.C. § 173. years from the grant date, for those filed after U.S. Constitution receive patent protection outside the United States, a company outside the United States, receive patent protection must obtain a sought. or region where protection is patent in each country termyears, measured of twenty from of filing. the date patents are for the invention or discovery of certain plants. patents are for the invention or discovery patent generally provides patent protection within the Unitedprovides patent protection within patent generally States. obvious, and described in terms that would skilled in the enable a person relevant field to make and use the invention. 2018] Patent and Trademark by the U.S. in United States is a right, granted A patent are by far the most commonly issued type of patent. In 2016, for example, the are by far the most commonly patent. In 2016, for example, issued type of U.S. Patent and Trademark Office issued 304,568 utility patents; 27,830 design patents; and 1250 plant patents. be used to preclude others frombe used to preclude the same making though they invention even invented it independently. under federal law: and plant patents. Utility utility patents, design patents, useful or disclosure of process, machine,and a new patents are for the invention article of manufacture,or composition of matter, or any new and useful improvement of such thing. original, and ornamental for an article of manufacture. design Office, to exclude others from making, using, offering for sale, selling, or others fromOffice, to exclude making,or selling, using, offering for sale, importing an invention. 40672-mqi_22-1 Sheet No. 17 Side A 05/20/2019 14:43:36 A 05/20/2019 17 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 17 Side B 05/20/2019 14:43:36 , M K 203 C Y , U.S. (Oct. FFICE [Vol. 22:1 [Vol. O Patent Fees Startups in the 204 RADEMARK T 200 The Cost of Obtaining a Patent in the ATENT AND Foreign countries, however, generally Foreign countries, 198 A startup wishing to patent an invention patent an invention to A startup wishing The United States has a one-year grace The United States 199 197 According to the U.S. and Trademark Patent 201 Additionally, applications will patent be rejected (2017), https://www.uspto.gov/learning-and-resources/fees-and- 196 ) 9/13/2018 11:46 AM Costs for obtaining a patent are high, ranging fromCosts for obtaining a patent are high, FFICE Do Patents to Startups? Really Matter New Data Shifting Habits Reveals MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. O (Apr. 4, 2015), http://www.ipwatchdog.com/2015/04/04/the-cost-of- note 103, at 215–16; Gene Quinn, note 103, at 225. 225. note 103, at 202 ELETE D OT supra supra supra COM The new system to file patent inventors incentivizes . N , , , O (D RADEMARK . Even a single non-secret use of an invention by one person might bar a patent . Even a single non-secret use of an invention 195 (June 21, 2012), https://techcrunch.com/2012/06/21/do-patents-really-matter-to- EDER EDER EDER T Id U.S. Patent and Trademark Office Performance and Accountability Report Fiscal Year U.S. Patent and Trademark Office Performance note 194, at 181. note 194, at INAL INAL .F ATCHDOG RUNCH supra 203. R 201. Patents, U.S. P General Information Concerning 202. 198. 35 U.S.C. § 102(b). 199. R 195.285–93 125 (2011). Stat. 284, 3, Pub. L. No. 112-29, § America Invents Act, Leahy-Smith 196. R 204. Leonid Kravets, 197. 35 U.S.C. § 102(a)(1). 200. C Despite the high cost time of and length required to obtain a patent, a , The process for obtaining a patent is expensive and time a patent is expensive and The process for obtaining consuming as Under the Leahy-SmithUnder America became2011, which Act of Invents AMMONS , IPW substantial minority of startups still pursue them. According to a 2012 study ECH ATENT AND $10,000 for simple inventions to $50,000 and more for complex inventions. $10,000 for simple $50,000 inventions to and more for by RJ Metrics, approximately one-third of funded technology companies listed on Crunchbase had applied for patents as on Crunchbase had applied for patents of that year. 5. H 5. 2016 application. Robert A. Matthews, Jr., 3 Annotated Patent Digest, § 17:137 (Oct. 2017). application. Robert A. Matthews, Jr., 3 Patent Digest, § 17:137 (Oct. Annotated compared to trademarks normally and copyright. Inventors use, and are the U.S. application with a patent to prosecute attorney advised to use, a patent Patent and Trademark Office. 2015), https://www.uspto.gov/patents-getting-started/general-information-concerning-patents [https: 2015), https://www.uspto.gov/patents-getting-started/general-information-concerning-patents //perma.cc/ET7L-CHKW]. Office, the average total pendency for patent applications was moreOffice, the average total pendency than twenty-five months. should therefore avoid disclosing the invention to anyone outside the company outside the disclosing the invention to anyone should therefore avoid agreement. a non-disclosure or who has not signed applications expeditiously. applications effective in 2013, the United States movedin 2013, the United effective system, first-inventor-to-file to a to file a patent the first inventor awarded to priority is generally under which application. obtaining-a-patent-in-the-us/id=56485/ [https://perma.cc/S8GD-NHW5]. Total costs for obtaining a patent include patent fees and attorney’s fees. Startups are often “small entities” or “micro-entities” §§ 1.27, 1.29 (2017); and therefore qualify for reduced patent fees. 37 C.F.R. P 30 US period for disclosures by the inventor. by period for disclosures for lack of for lack of novelty if the claimed invention was patented, described in a printed the public before to otherwise available on sale, or use, public or in publication, wasthe patent application filed. do not have such a grace period. do not have such T payment/uspto-fee-schedule [https://perma.cc/3KN7-4H5U]. 40672-mqi_22-1 Sheet No. 17 Side B 05/20/2019 14:43:36 B 05/20/2019 17 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 18 Side A 05/20/2019 14:43:36 , AW 205 31 L RACTICAL 211 note 209. If an invention invention If an A company will , P 207 supra 208 , . L. 1, 17 (2012). To obtain a See Assignment of Employee AP C If an employee of conceives , Resource ID 4-582-6485 (2017). 209 AW ENTURE L & V An inventor’s interest in his or her interest in his An inventor’s Student Intellectual Property Issues on the Student Intellectual Property Issues on the 206 QUITY RACTICAL E , 563 , 799–801 U.S. at (criticizing FilmTec’s “technical , P FilmTec Corp. v. Allied-Signal, Inc., 939 F.2d 1568, 1572–73 FilmTec Corp. v. Allied-Signal, Inc., 939 F.2d RIVATE see , 563 U.S. at 786. , 563 U.S. at , 563 U.S. at 786; 35 U.S.C. §§ 152, 261. . J. P .; Id ) 9/13/2018 11:46 AM iting employee assignment agreements. ICH ELETE However, a shop right is non-exclusive, and the employee and the However, a shop right is non-exclusive, , 2 M D 210 OT N O but see Roche Molecular Sys. https://www.crunchbase.com/ [https://perma.cc/346E-YXWF]. (D . See Intellectual Property: Employees and Independent Contractors Intellectual Property: Employees and Independent Roche Molecular Sys. Intellectual Property: Employees and Independent Contractors Id Roche Molecular Sys. INAL INAL .F ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS IN ENTREPRENEURSHIP STARTUPS FOR ISSUES 211. 208. 209. 205. 207. 210.1993). McElmurry v. Arkansas Power & Light Co., 995 F.2d 1576, 1580 (Fed. Cir. 206. Bd. of Tr. of Leland Stanford Junior Univ. v. Roche Molecular Sys., 563 U.S. 776, 780, 206. Bd. of Tr. of Leland Stanford Junior Univ. As a general rule, rights in an invention belong to the inventor or, for to the inventor in an invention belong rule, rights As a general M K AMMONS C Y 5. H 5. 785 (2012); 35 U.S.C. §§ 101, 262 (2012). online database with information about technology companies, people, funding rounds, and other online database with information about technology information. 2. and Assignment Patent Ownership Inventions State Laws Chart: Overview drafting trap for the unwary” regarding the “hereby assign[s]” language) (Breyer, J. dissenting). drafting trap for the unwary” regarding the “hereby assign[s]” language) (Breyer, J. dissenting). Multiple laws lim states have (Fed. Cir. 1991); can therefore freely sell and license the invention to third parties. the invention to thirdcan therefore freely sell and license an invention and no assignmentan invention and no agreement the employer is in place, may have invention, i.e., an implied“shop rights” in the right to use it without liability for infringement. invention, however, is assignable by an instrument in writing. by assignable is however, invention, Wisconsin does not have such a law, but employee assignment agreements are nevertheless subject to principles. common law contract is the original conception of an employeeis the original conception an employer alone, will not have absent that invention agreementan rights in to the contrary. present assignment of assignment rights—and not merely a promise to assign—an assignment in inventions he or “hereby assigns” all rights agreement should state that the employee or contractor she may develop in the future. startups-new-data-reveals-shifting-habits/ [https://perma.cc/R5TW-6VUQ]. Crunchbase is a free 2018] semiconductor industry were most likely to apply for patents, at a rate of at a rate for patents, apply 65.2%,were most to industry likely semiconductor 10.5%. and companiesecommerce in a rate of only the least likely, at were similarly by an independent rights to an invention conceived not have the companycontractor unless agree otherwise. It is therefore and contractor common for a company employees to have and contractors sign an agreement assignmentcontaining a present of inventions. inventions madeinventions jointly, the inventors. Resource ID W-002-9206 C. Pilz, (2017); Bryce Entrepreneurial Campus 40672-mqi_22-1 Sheet No. 18 Side A 05/20/2019 14:43:36 A 05/20/2019 18 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 18 Side B 05/20/2019 14:43:36 M K C Y (Aug. in Part ORBES [Vol. 22:1 [Vol. ISCONSIN ?, F supra W 212 WNERSHIP BY ROGRAMS Before You Product Unveil That New P O . L.J. 16 (May 2017). Additionally, a startup should avoid Additionally, a startup ECH ROPERTY 213 Second, many support programs work many Second, P . & T . & 215 ROP Student Intellectual Property Issues on the Entrepreneurial on Property Issues Intellectual Student . P NTELL note 16, at 107. note 16, at ) 9/13/2018 11:46 AM MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. NTELLECTUAL I Do Venture Capitalists Care About Intellectual Property supra 214 ELETE NTREPRENEURSHIP SUPPORT ., D E R , 29 No. 5 I OT , J N O James R. Barney and Anthony Anthony Del Monaco, D. and Barney James R. (D note 209, and the author refers readers to that article. note 209, and the author refers readers to that ILLER See INAL INAL .F OSTERING OF supra , 215. Mary Juetten, 212. A number of additional patent issues can arise for student inventors. Professor Bryce Pilz 214. 213. M As addressed in the Wisconsin’sin of this Article, As addressed Introduction Support programsembrace should this opportunity for several reasons. The second issue involves failing to obtain proper ownership of an ownership involves failing to obtain proper The second issue of an Two significant patent-related issues arise for startups participating in for startups participating issues arise patent-related Two significant AMMONS III. F 5. H 5. event. There, disclosure mayevent. There, patent losing international in the startup result rights permanently ticking for filing of a United and starting a one-year clock mitigateStates patent. To an invention startup wishing that risk, a to discuss such as a mentorwith a third party, first enter into non- or advisor, should disclosure agreement with party. that presenting the invention at events such as a demopresenting the invention until patent filings have day made. been properly entrepreneurship support programs assist startups in many ways, such as entrepreneurship through providing business development assistance, financial support, mentorship, introductions to investors and potential business partners, and exists for support programs to opportunity third-party validation. A significant another capacity—fostering startup intellectual property assist startups in ownership. First, as noted in the Introduction, intellectual property is critical for startups— to enable them the marketplace, to protect their goods or services in only not but also to make them more attractive to investors. Indeed, some commentators maintain for ninety percent of the that intangible assets account value of an early-stage company. invention developed, or that will be developed, by an employee or worker hired an employee or will be developed, by or that invention developed, entering into a patent issue should be addressed by by a startup. This assignmentagreement with the employee or contractor, as stated support programs. an or disclosure of the public use first issue involves The or demoa startup pitch or at party, third other such as to a mentorinvention, or unique to, nor does it depend on, II.D.2. The issue of patent is not however, entrepreneurship support programs. As stated throughout this article, programs. support startups routinely meet new hires at or through potential comprehensively addresses those issues in addresses those comprehensively Campus with early-stage startups 3.Programs Support Entrepreneurship with Patents and Issues 11, 2015 10:23 AM), https://www.forbes.com/sites/maryjuetten/2015/08/11/do-venture-capitalists- 32 at the Big Trade Show 40672-mqi_22-1 Sheet No. 18 Side B 05/20/2019 14:43:36 B 05/20/2019 18 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 19 Side A 05/20/2019 14:43:36 , N AW L 33 : A RRICK , O UIDE TO G S RADEMARK ’ & T NTREPRENEUR E Startup Forms Library OPYRIGHT HE , C , M-WERC 2016 9:30 AM), (Nov. 4, ATENT (17th ed. 2016); ONCLUSION C , https://launch.wilmerhale.com/build/document-generator/ EFERENCE ALE 218 R H ) 9/13/2018 11:46 AM ESK ILMER D ELETE D , https://www.cooleygo.com/documents/ [https://perma.cc/2FJQ-5PF8]; , W WERCBench Labs Week 4 Highlights OT , N ., Constance E. Bagley & Craig E. Dauchy, T & Craig E. Dauchy, ., E. Bagley Constance O (5th ed. 2017); Richard Stim, P ROPERTY Programs to print-based and online can also direct startups OOLEY (D P 217 See, e.g. See, e.g 216 INAL INAL , C .F ISSUES FOR STARTUPS IN ENTREPRENEURSHIP PROGRAMS PROGRAMS IN ENTREPRENEURSHIP STARTUPS FOR ISSUES TRATEGY S 218. The Marquette Law and Entrepreneurship Clinic holds office hours at or in connection 217. 216. To address and mitigate risk with to such programs, respect startups should Wisconsin’s ecosystem entrepreneurship has expanded greatly since the Additionally, support programsAdditionally, support many can, as do, refer startups to First and foremost,First and by programs ownership intellectual property can foster M K AMMONS C Y NTELLECTUAL 5. H 5. that support new ventures. Wisconsin is now home to accelerators, incubators, spaces, and various other programshackathons, business contests, co-working in varying capacities. Participation in a and organizations that assist startups support program oftentimes provides a startup with needed resources, networking opportunities, and mentorship. It also, however, can place a startup’s intellectual property at risk—directly program through the itself, or program. develop as a result of the indirectly through relationships that turn of the century, with respect startups themselves to as well as the programs http://energywercs.org/media/show/wercbench_labs_week_4_highlights.html http://energywercs.org/media/show/wercbench_labs_week_4_highlights.html [https://perma.cc/YVW4-HR35]. resources. [https://perma.cc/MT7B-QKAU]. area. with several entrepreneurship support programs in the Milwaukee intellectual property counsel as appropriate. Some programsintellectual property counsel as appropriate. partner with law firms, legal clinics, or both. I care-about-intellectual-property/#72b891475b87 [https://perma.cc/SB6Q-W5EY]. care-about-intellectual-property/#72b891475b87 2018] that have yet to lock downhave yet that timing The property. intellectual their is therefore Andreceive assistance. those startups to ideal for third, many startups forego life due to limited early in their legal assistance in the financial resources, programs—whichexperience. Support author’s as resource rich are often compared to startups—canresource gap. help to fill the time about intellectual property. If educating startups is limited (e.g., a a programweekend hackathon), can, at a minimum, emphasize the to startups intellectual property. importance of protecting a programlimited, less If time is property intellectual further and provide an education about can proceed a step basics. Some support programs in the state do this, such already as accelerators intellectual property into their curricula training by that incorporate attorneys. AND Document Generator https://www.orrick.com/Total-Access/Tool-Kit/Start-Up-Forms [https://perma.cc/VT9N-TWKQ]; Documents 40672-mqi_22-1 Sheet No. 19 Side A 05/20/2019 14:43:36 A 05/20/2019 19 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 19 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. ) 9/13/2018 11:46 AM MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D OT N O (D INAL INAL .F To preserve patent rights, startups should enter into writtenTo preserve patent rights, startups patent Lastly, entrepreneurship support programs in Wisconsin can and should A startup should also identify its trade secrets and anticipate that new hires secrets and anticipate that new trade identify its A startup should also AMMONS 5. H 5. that certain locations, such as co-working spaces, might create risks for loss of that certain locations, such as co-working rights. trade secret that disclosure to mentors who are not in a confidential relationship with the also be aware should rights. Startups startup may result in loss of trade secret assignment agreements with all employees and contractors. Startups should to third parties who are not bound by also avoid disclosing an invention or at obligations, events as startup pitches or demos,such confidentiality unless and until proper patent paperwork has been filed with the U.S. Patent and Trademark Office. such as through educating startup and foster startup intellectual property, referring themresources and support, as needed. to legal engage in several practices. First, before a startup hires or begins to work with work with begins to hires or a startup before First, practices. in several engage should determine is that person whether an employee the startup or contractor, any agreements,subject to former a current or such as with employer, that mightimpact If the startup decides work product. of that person’s ownership to move enter as a general rule, it should then, the relationship, forward with into a written agreement with addressing ownership that person of intellectual of information.property and confidentiality In most instances, the agreement is a work made for hire all copyrightable work product should provide that not copyrightable is Act, and that all work product under the Copyright startup. assigned to the informationare likely to develop might startup be a trade secret. The that should make reasonable efforts to of the secrecy maintain its trade secrets, such agreementsas entering into confidentiality with all parties to whom the trade secrets will be disclosed; marking“Confidential” or “Top Secret”; documents Startups should be aware secrets. and controlling and limiting to trade access 34 40672-mqi_22-1 Sheet No. 19 Side B 05/20/2019 14:43:36 B 05/20/2019 19 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 20 Side A 05/20/2019 14:43:36 45 49 36 36 38 USIC M USIC M ODERN n ...... 38 M * . ODERN SQ M , E AST ...... P ADONIA eation Exceptio ONCERNS OF THE Disabilities Act ...... 41 ...... Disabilities Act C R. M R. Statute ...... Statute ...... 39 FESTIVAL mmission ...... 46 otection ...... 43 otection ...... OLLY ESTIVALS OF THE ESTIVALS OF F M ) 9/21/2018 1:49 PM NNOVATION WITHIN THE I EGISLATIVE USIC L ELETE D ...... M OT and the Trespass and the N O (D 1.Recr Preservation of the 2.39 ...... festival? music Why is this important to the modern 3.Knives Legislation: Overbroad Federal Trade Co 1. The Americans with 2. Trademark Pr INAL INAL THE TIMES THEY ARE A-CHANGIN’: ARE A-CHANGIN’: THEY THE TIMES ESTIVAL ...... ESTIVAL ...... F INNOVATION IN THE MODERN MUSIC MUSIC THE MODERN IN INNOVATION F F A. Streaming 45 ...... B. Internet, Online Contests, and Legal Concerns of the The A.38 ...... State law B. 41 ...... Federal law ECHNOLOGICAL ECHNOLOGICAL OLITICAL AND ONCLUSION ...... * Staff Attorney, Milwaukee WorldJ.D., Marquette University Law School. Festival, Inc., NFLUENCE OF NTRODUCTION ADONIA M K C Y 6. M 6. I. I Molly R. Madonia currently practices intellectual property and entertainment law as part of her duties part of as entertainment law and property practices intellectual R. Madonia currently Molly as Staff Attorney with Milwaukee Worldproducers of Summerfest in Milwaukee, Festival, Inc., the Wisconsin. She would like to thank her boss Frank Nicotera for providing valuable insight into the quandaries presented herein. legal to discuss Babisch for taking time Bob thank like to would also She she would like to thank the Marquettethe intricacies of the venue–artist relationship. Finally, IPLR, the work and its advisors, for considering this Article for publication; the author is acutely aware of work. involved in publishing a Symposium, and she sees and appreciates all your hard V. C II. I III. P IV. T 40672-mqi_22-1 Sheet No. 20 Side A 05/20/2019 14:43:36 A 05/20/2019 20 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 20 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. (Jan. 6, 1969), (Jan. 6, TONE S AST P OLLING , R ESTIVALS OF THE 9 (Manticore Records 1973). 9 (Manticore Records F VIL E USIC NTRODUCTION ARN M , K I. I 1 ALMER ) 9/21/2018 1:49 PM MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. & P 2 The Rolling Stone Interview: Jim Morrison Jim Stone Interview: The Rolling ELETE D AKE NFLUENCE OF OT , L N II. I O (D MERSON INAL INAL .F 2. E 1. Jerry Hopkins, Jim Morrison, The Doors. An entire article could be written on the tremendousAn entire article could be written and invaluable First and foremost, music the past shaped the direction and festivals of Musical festivals are, and have always been, a way for friends and families friends for and have always been, a wayMusical festivals are, “I can see a lone artist with a lot of tapes and electrical . . . like an like an . . . electrical tapes and a lot of with lone artist see a “I can ADONIA 6. M 6. influence of music festivals of the past on today’s festivals. From location, to demographics, to marketing, to innovation, the music festivals of the sixties today’s events, both nationally and and seventies continue to influence internationally. Below are a few examples of how former festivals shaped the today. way we plan, produce, and attend festivals mission today’s festivals by presenting a simple of question: What type of For example, festival does the reader want to have? is your festival marketed toward the younger, more socially-conscious crowd? Are you planning a family-centric a classic, rock-centered party with Or are you hosting festival? festivals of yesteryear? of throwbacks to plenty Each of these festival types has a myriad unique to each scenario showcased by the trials and of concerns festivals. successes of the early to gather together to celebrate the latest and greatest in music, to celebrate the latest and greatest to gather together food, and entertainment. From festivals in major large metropolitan cities to small, enjoyment to music of a source been intimatefestivals have long shows, music of inspiration to up-and-comingfans and a source musicians. This Article will political, explore innovation within the modern music festival, including legal, festivals across the country. So, as and operational changes that affect Emerson, Lake, and Palmer expressed, “Welcome so eloquently back my we’re so glad you could attend, comefriends to the show that never ends, inside, come inside.” extension of the Moogextension — synthesizer and with the complexity a keyboard there, working somebody out y’know? There’s of a whole orchestra, richness We’ll musical form. about it in hear a whole new just inventing in a basement, play years. Whoevera couple really popular, to I’d like him to be it is, though, — be on records concerts, not just at large to play at at Carnegie Hall, dances” 36 http://www.rollingstone.com/music/features/the-rolling-stone-interview-jim-morrison-19690726 [https://perma.cc/HQC4-UURE]. 40672-mqi_22-1 Sheet No. 20 Side B 05/20/2019 14:43:36 B 05/20/2019 20 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 21 Side A 05/20/2019 14:43:36 , 37 new 9 to a functional 7 YEARS OF MUSIC AND YEARS OF MEMORIES : 40 All of these projects reflected 11 Echoed in today’s promotions,Echoed in in 5 and Summerfest welcomed several new today’s admission promotions continue to the early years of the festival encompassedfestival of the years the early 6 10 OOLER BY THE LAKE 3 : C ) 9/21/2018 1:49 PM TIMES THEY ARE A-CHANGIN’ A-CHANGIN’ ARE THEY TIMES UMMERFEST ELETE , S D OT N In the 1980s, paved walkways replaced gravel paths, In the 1980s, paved walkways replaced IANEN O T 8 (D at 29. at 30. at 41. For this reason, the $1.25 Youth Fest admission was reduced to $0.50 to $0.50 was reduced admission Fest the $1.25 Youth For this reason, AVE INAL INAL Id. Id. Id. Id. Id. Id. Id. 4 .F 3.Milwaukee, Wisconsin, https://summerfest.com/ in Summerfest, located 4. D 5. 6. 7. 8. 9. 10. 11. One of the most obvious evolutions in Summerfest is the changing history Fortunately for Summerfest, for Fortunately ADONIA M K C Y 6. M 6. if patrons brought in soda bottle caps. brought in soda if patrons stages, including the Amphitheater 1987. in the continuing innovation within the festival landscape; festivalgoers deserved festival the continuing innovation within the newer amenities, safer grounds, and high-level talent. to popular responding By demand, the festival demonstrated both its commitment to its guests and its potential for longevity. As Summerfest continues to adapt to the newest amenities, such as mobile phone charging stations, virtual reality, and concert modern landscape at a level expected streaming, it navigates the musicfestival from top-tier entertainment venues by offering the latest and greatest comforts to its guests. all of the above demographics.all of the For example, recognized the early producers ticket so the community’sfor an affordable the need could attend the youth festival. 2018] marketplace. [https://perma.cc/QQ2H- UPZ6]. collaboration with supportive sponsors, Summerfest with supportive collaboration this is able to reflect commitment to the younger demographics, families,financially-conscious and a similarguests by continuing as Summerfest strategy. Just pricing 1968 these efforts, received praise for enjoy great success at the box office and have been among at the box office and enjoy great success the most popular box office attractions. itself. Maier Festival Park landscape of Henry grounds make the to In an effort more Summerfest enjoyable to all patrons, made its first capital improvements fromin the 1970s, ranging a new roof on the main stage bathroom facilities were added, 21 (Journal Sentinel Inc., 2007). 21 (Journal Sentinel Inc., 40672-mqi_22-1 Sheet No. 21 Side A 05/20/2019 14:43:36 A 05/20/2019 21 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 21 Side B 05/20/2019 14:43:36 M K C Y USIC [Vol. 22:1 [Vol. M ODERN M ONCERNS OF THE OF THE ONCERNS C This interpretation means all persons that ESTIVAL 12 F A. law State EGISLATIVE L ) 9/21/2018 1:49 PM MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D OT N O (D Schultz v. Grinnell Mut. Reinsurance, Co., 600 N.W.2d 243, 246 (Wis. Ct. App.1999). OLITICAL AND AND OLITICAL INAL INAL 13 .F See 12. Wis. Stat. §§ 895.52(1)–(2) (2015-16). 13. III. P Although music the the of “fighting built on feelings was festival industry The laws of the state of WisconsinThe laws of the govern the majority of Summerfest One of the most important legal issues within the modern music festival is ADONIA 6. M 6. man,” the modern and helpfulness the need, purpose, music recognizes festival following initiatives. The and legislative of political of how is a discussion of the modern are incorporated into the operation state and federal laws music festival. operations. For this reason, the legal departmentoperations. For this must monitor changes to the would for any changes to policies that legislative landscape affect the safety and security of Summerfest encompass guests. The below statutes two of the more important years. Accompanied legislative policies in recent a brief by how the modern two statutes were selected to show explanation, these music tofestival innovates within and adapts in state legislative policy. changes 1. Preservation of the Recreation Exception protecting the festival from if that music liability, especially festival serves alcoholic beverages. While responsible imbibingfor the is encouraged lead to injury. can enjoyment of all of-age patrons, overindulgence Thankfully, instituted the so-called “recreation recognized this issue and the legislature has Wisconsinexception” to liability, codified in sum, Statute section 895.52. In other managementofficers, and all personnel of the owners, relieves statute the non-profit organizations from liability for injuries that occur on premises that are used for recreational purposes. that elect to visit a theme a music park, festival, a farm used for tours, or other recreational activity maylocation used specifically for outdoor not hold the sustained while on the property. As owner of the property liable for injuries someare exceptions (e.g., still state-owned properties are statute, there with any liable, malicious failure to warnis still actionable, etc.), and these exceptions traditional outdoor activities, such as ice fully apply to those participating in the next time you see a patron So, fishing or even saying hi to your neighbor. at a fair attempting a runaway steer, consider the recreational to capture immunity statute, and let them in recreational activity know they are engaged and should watch their step because the fair organizer is immune from liability. 38 40672-mqi_22-1 Sheet No. 21 Side B 05/20/2019 14:43:36 B 05/20/2019 21 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 22 Side A 05/20/2019 14:43:36 39 As the reader 15 This meant was no that there 16 14 ) 9/21/2018 1:49 PM TIMES THEY ARE A-CHANGIN’ A-CHANGIN’ ARE THEY TIMES ELETE D OT N O (D . INAL INAL Id .F 15. 16.legislation. to ascertain the purpose of the The author makes no attempt 14. Wis. Assemb. B. 142 (2016), https://docs.legis.wisconsin.gov/2015/related/acts/ Act 149, The Act, as written, was seemingly overbroad enough to encompass The answer came in the formWisconsin of Statute section 943.13, First, the recreational immunityFirst, the allowing applies to non-profits, statute In 2016, Wisconsin enacted Act 149, which modified weapons the ADONIA M K C Y 6. M 6. Summerfest in its scope. However, a few provisions, and some quick research, Summerfest in its scope. However, and some a few provisions, quick safety and security of Summerfestwere necessary to ensure the continued guests. First, Summerfestthe is a private event. The event is not sponsored by City of Milwaukee and is produced by a private company.the For this reason, as if the event were conducted in a public statute would not apply as broadly forum, streets, or in another open setting. With on City this in mind, legal for other legislation that could be used to counsel for the event then searched purpose of the research was to find a legal deter the carrying-in of knives. The policies and to ensure that no our security response for patron clarifications on Park. bodily harmobjects that could potentially cause were permitted at the encompassing trespass to land. Under the statute, no person issues relating to may enter any enclosed land of another, without the express or implied consent 149 [https://perma.cc/8828-D2R5]. may be aware, Summerfest of weapons of any does not allow the carrying-in a unique statutory conundrumkind, so this legislation presented for legal counsel. The new definition of weapon did not include knife, so were knives now allowed at Summerfest, under the statute? Was this the intention of the legislature when they drafted the language? 2018] a knife in the state. Act 149 also removedprohibition against openly carrying “knife or switchblade knife” from of weapon. the definition 2. festival? Why important is this modern to the music a reprieve from litigate an issue afford to fully that could not organizations the The statute allows action. reputation-harming expensive and potentially with its mission. that aligns an activity to focus on hosting non-profit personal accountability;Secondly, it encourages enters a mosh if a patron pit, hopefully they will have the wherewithalbe aware to of their surroundings. The combinationneed for the exception, a creates a of these important points act in a responsible approach to ensuring that patrons functional and legal manner, to and a way for non-profits missions.continue to focus on their 3. Statute Knives and the Trespass Overbroad Legislation: the list of weapons that may not be to removeregulation statute “knives” from without a permit.concealed and carried 40672-mqi_22-1 Sheet No. 22 Side A 05/20/2019 14:43:36 A 05/20/2019 22 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 22 Side B 05/20/2019 14:43:36 18 M K C Y [Vol. 22:1 [Vol. A person has Land is posted 19 20 In determining implied has a person whether 17 ) 9/21/2018 1:49 PM MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D OT N O 21 (D § 943.13(1m)(b). § 943.13(2). §§ 943.13(1s)(a)–(d). INAL INAL .F Id. Id. Id. 19. 20. 21. Wis. Stat. §§ 943.13(2)(am)(1)–(2) (2015–16). 17. Wis. Stat. § 943.13(1m)(a). 18. Let us break that all down real quick using SummerfestLet us break that all down real quick as an example. ADONIA 6. M 6. First, no person may or Meier enter Henry the express Festival Park without implied consent of Milwaukee World Festival (“MWF”), the occupant of the Park. Here, the Summerfest MWF ticket functions as express consent; has the allowed by is so and this entry entry, vended to the patron a ticket for holding of the Summerfestticket. valid every each and said, on That being Summerfest “Entrance is subject to the ticket is the following language: entrance to the grounds.” Essentially, policies and restriction posted at each patrons may use their Summerfestto enjoy Summerfest ticket subject to all that signage that refers to Wisconsinposted signage on the grounds, including Statute section Summerfest943.13. For those still thinking that and thus is a public event, statute. the of move to the next section weto attend, the public invites impliedly To determine implied consent, a trier of fact would consider the listed factors. Respectively, and in sum, MWF has never acquiesced to patrons bringing in knives to Summerfest, it is not customary a music to bring a knife to festival located on private property, Summerfest does not customarily have any hobbies, and the big or knife-related attractions or areas dedicated to knives grounds do not naturally lend themselvesfence and giant lake surrounding the to an arrangement supporting the carrying of knives. Thus, there are no received notice fromhave been notified the owner or occupant if they land is posted. orally or in writing,personally, either or if the consent to enter the land of another, the trier of fact shall consider the trier of fact shall of another, the to enter the land consent circumstances, the owner including whether or occupant acquiesced to previous under similar other persons the person or by entries by circumstances, the customary to the or occupant represented the owner use of the land, whether the land maypublic that and the general purposes, be entered for particular arrangement of any improvements or design on the land. or structures if either (a) a sign of certain dimensionsif either (a) a sign content is placed in at least two and there are markings or (b) acres to be protected places for every forty at least of of the owner the name the word “private land” and one foot long, including places for every forty acres to the land, are marked at least two in conspicuous be protected. of the owner or occupant. owner of the 40 Further, no person may enter remainor on the land of another having been after not to enter or remainnotified by the owner premises. on the 40672-mqi_22-1 Sheet No. 22 Side B 05/20/2019 14:43:36 B 05/20/2019 22 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 23 Side A 05/20/2019 14:43:36 41 has informed a patron that their presence is no their presence that a patron has informed B. Federal law both agree that historically, there have been have been both agree that historically, there 22 ) 9/21/2018 1:49 PM TIMES THEY ARE A-CHANGIN’ A-CHANGIN’ ARE THEY TIMES ELETE D OT N O (D INAL INAL .F 22.(2008). Americans with Disabilities Act of 1990, 42 U.S.C. § 12101(a) The Americans (“ADA”) provides regulations with Disabilities Act The modern music festival is not exempt from any federal regulation Moving may on, no patron remain at Summerfest being notified that after ADONIA M K C Y 6. M 6. pertaining to the public health and welfare to organizations and persons to organizations and welfare pertaining to the public health and the United States (so all of them).laws of conducting business subject to the festivals and all modern venues have The ADA certainly applies to music therein. their policies to accommodateprovisions adapted the several are There which modern festivals must pay policies within the ADA to well-established those provisions mustspecial attention; for outdoor festivals, be implemented to an even higher standard. Summerfest and Congress (according to the ADA) of the Findings discriminatorywith Summerfest disabilities. practices against those strives to favorite entertainment. their festival where all musicenjoy be an open fans may The belowcompliance examples within are not the only instances of ADA the festival; indeed, as Summerfest upgrades its footprint and its amenities, the However, improvements. capital in the consideration foremost the ADA is applicable to any compliantbusiness. Federal guidelines and regulations provide valuable guidance on matters affecting the nation’s festivals and often fill in the gaps where state lawminimal is silent or gives direction. The examples below illustrate how the modern music festival innovates to how the regulations help preserve the incorporate these regulations and community often Further, these deferral regulations the festival itself. feel of protect the interests of the modern music by providing uniform, festival intellectual property and related uses. nationwide protections for the festival’s 1. The Americans with Disabilities Act 2018] Notification on the grounds. longer desired in writing posted includes signage at every entrance to the grounds, and inside the grounds, patrons that informing they may not remain or they are in violation of any policies at the park if procedures of MWF, policies such knives.” Henry Maier including “no there are signs at each also validly, suitably posted, as Festival Park is protected from For these reasons, the Park is entrance to the grounds. the open the trespass section 943.13, relating Wisconsincarry of knives through Statute of land. circumstances, that express, or perceived would fact to believe a trier of lead that Summerfest welcomes knives on the premises. no longer welcomethey are if a notice would occur the Park. Personal at Security Summerfest member of 40672-mqi_22-1 Sheet No. 23 Side A 05/20/2019 14:43:36 A 05/20/2019 23 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 23 Side B 05/20/2019 14:43:36 25 M K C Y [Vol. 22:1 [Vol. 26 23 Employers may discriminate not a person engaged in an industry engaged in an industry a person 24 the ADA long before the festival season long before the festival the ADA 27 , footerwebpage,of https://jobs.summerfest.com/#/ OBS ) 9/21/2018 1:49 PM J MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D OT N O (D § 12112(a). § 12111(9). UMMERFEST INAL INAL Id. Id. .F 25. 26. 23. As of September 2017. 24. 42 U.S.C. § 12111(5)(A) (2008). 27. S Milwaukee World Festival, Inc., provides equal employment opportunity to all employees applicants regardless of a person’s and pregnancy, gender identity, and race, religion, color, sex (including origin, medicalsexual orientation), age, national condition, marital status, sexual orientation, veteran status, disability, or any other legally protected status. Weabide by the requirements also of the Americans with Disabilities Act and state law governing employment of individuals with disabilities. This language was supplemented by the the ADA and related actual text of by language was supplemented This So how does a musicfestival accommodate employees with disabilities, Music festivals must comply with must comply Music festivals ADONIA 6. M 6. research. One of the reasons the text is so detailed (and lengthy) is due to research. One of the reasons the text MWF’spractice reflected in manypractices, a dedication to responsible hiring modern festivals. Secondly, Summerfest encouraged to visit the employees are even those disabilities which may be non-obvious to the eye or those disabilities eye or the whicheven those disabilities be non-obvious to may that are triggered by certain common or uncommon events, such as stress or bad weather? The answer is simple: conducting the hiring process in a by to handle while also being equipped proactive and conscious manner, emergency situations. For example, the modern music should use the festival most used to attract inclusive language possible in all position descriptions language: potential candidates. Summerfest include the position descriptions against any job candidate based on disability and mustcandidate based on disability and against any job makereasonable accommodation in performance to assist those employees job. of their following ADA matters ADA following most the illustrate most issues, and pressing satisfying facing the Summerfestresolutions, team. legal affecting commerceof employees certain number with a working for a certain number of their agents. of weeks and any begins; the hiring of seasonal staff occurs weeks to months weeks staff occurs hiring of seasonal begins; the beforehand. This employment compliancebegins with definitions within a look at the Act. the means to the ADA, “employer” According [https://perma.cc/5VG9-5TXF] (last modified 2018). Accommodations may include making existing facilities accessible and useable by individuals with work disabilities, modified reassignment, schedules, interpreters. modification of training materials, or the use of 42 40672-mqi_22-1 Sheet No. 23 Side B 05/20/2019 14:43:36 B 05/20/2019 23 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 24 Side A 05/20/2019 14:43:36 29 43 Further, 28 2 (2017), ECTION S IGHTS R ISIBILITY ., D IV D IGHTS R IVIL , C ) 9/21/2018 1:49 PM TIMES THEY ARE A-CHANGIN’ A-CHANGIN’ ARE THEY TIMES USTICE J ELETE D T OF ’ OT N EP O (D at 1. INAL INAL Id. .F 29. 28. U.S. D Music festivals enjoy the same intellectual property protections as any other protections as any property same intellectual the festivals enjoy Music To illustrate, Summerfest complies with these regulations and takes Music festivals must also comply with the ADA as to their pertains venues, ADONIA M K business entity. the are amongprotections In fact, copyright and trademark C Y 6. M 6. to navigate by wheelchair or scooter. to navigate by wheelchair or scooter. 2. Trademark Protection https://www.ada.gov/stadium.pdf [https://perma.cc/3C7T-297Q]. implementation step further on its newest one stages. For example, the Miller with upgraded amenitiesLite Oasis redone for 2017, stage wascompletely The ADA accessible areas and video screens. VIP new accessible including the improvements. First, several notable seating areas were also upgraded with the audience the entirety of one side of wheelchair accessible seating occupies area, at the viewing front of the footprint. Second, the section is also at the same area located on the side of the viewing level as the Front Row VIP stage. The ADAthat ADA the design of the stage area, meaning section is integral in to and guests are not isolated from added protection experience. Third, for the is assigned team hassles the ADA a security mitigateencounter any guests may a private ADA and VIP areas share the Finally, area. that to making entrance, the access path less traveled and crowded, thus creating a section much easier 2018] first aid station should they feel unwell. This encouragement unwell. they feel should aid station first during begins in the employee all trainings across is a key tenet orientation and every job departments. one for and support to watch out Employees are also encouraged Finally, any employeeanother. a medical that experiences to issue is required matterbring the receive prompt in order to to their supervisor medical care. MWFof accommodation has a well-established history employees; for their of accommodationsorganization has utilized a variety historically, the including to another relocation area of the grounds, switching work schedules, consistent materials encompassto the latest developmentsof training updating an interpreter to better communicatemedical awareness, and the hiring of in with every employee. create an inclusive, proactive All of these practices environmentsecure. which Summerfest in employees may safe and feel stadiums, For an outdoor festival, complianceand grounds. with these key regulations may require more foresight. Many and planning provisions for patrons involve accessibility, both the ADAwithinfestival planning for utilizing wheelchairs and their guests. For example, lines of sight from theses spectators.” other to those provided to sections must be “comparable a companion seat must be provided next to each wheelchair seating location. seating a companion seat must be provided next to each wheelchair 40672-mqi_22-1 Sheet No. 24 Side A 05/20/2019 14:43:36 A 05/20/2019 24 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 24 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. ) 9/21/2018 1:49 PM there are over 200 instances of improper use of the name improper use of of are over 200 instances there MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. 30 ELETE D OT N In each of these instances, MWF counsel will either call each O 31 (D INAL INAL .F 30. Sept. 28, 2017. 31.are. you these Summerfest fans. You know who The author would like to thank The magic of the internet will be discussed later in this Article, but a brief ADONIA 6. M 6. mention is due when discussing the widespread use of trademarks in the festival mention is due when discussing marketplace. The use of a simple Alert can notify legal counsel to the Google improper marks use of an organization’s or outright appropriation of a mark. Following the identification of improper it is essential that legal counsel use, then find information use, including the name about the infringing the person of event. From and their there, their location, or organization conducting the use, a letter (of varying degrees of sternness) to the attorney can either call or send themthe infringing party in order to put notice to correct the mistake. on In protected at all. is actually the mark not aware cases, the organizer is many For example, as of today, most symbols the business; of festival aspects valued to logos used and measurable the events provide represent venue, and the to the event, the value property issues intellectual the above. However, behind all of organizations maynature of the the protected do not realize when other groups arise trademarks of the protected duplication Such issues include or copyrights. marks manner,an unapproved in abuse of accepted the marks, of appropriation the marksuse of the marks, in unauthorized derivative and the depiction of works. a public to be the event believes public arise when the These issues may when other businesses have “ownership” of the festival event, and thus, they unknowingly use the on the success of the event, or when wish to capitalize name In any case, legal counsel for the or logo in promotion of a new event. music festival mayin the protection of its marks. exercise all rights The following are some examples of how the modern music festival can use new rights, while its intellectual property technology to enforce still maintaining perception. over their public ownership and control 44 person or organization, or write a letter, informingperson or organization, or write the organizers of the Summerfests of MWFs that they are infringing on one registrations, and valid there are no exceptions to the trademarkprotection. In order to ensure the strength of the mark in these situations, MWF required to exercise its is trademark rights, lest the mark become generic. MWF must continuously monitor the use of Summerfest nationwide for several reasons. First, all MWF trademarks enjoy nationwideenforce protection; legal counsel is entitled to these rights across the United States. Secondly, the more pervasive the use of “Summerfest” in the United Each of these instances were States alone. either brought to the attention of MWF’s legal counsel through internet notifications, us just “giving Good Samaritanto email, or mentioned patrons by sent directly a heads up.” 40672-mqi_22-1 Sheet No. 24 Side B 05/20/2019 14:43:36 B 05/20/2019 24 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 25 Side A 05/20/2019 14:43:36 45 ESTIVAL F Summerfests. USIC M other ODERN M A. Streaming NNOVATION WITHIN THE NNOVATION WITHIN I ) 9/21/2018 1:49 PM In some band is signed to a label, streaming cases, if the TIMES THEY ARE A-CHANGIN’ A-CHANGIN’ ARE THEY TIMES 32 ELETE D OT N O (D INAL INAL .F ECHNOLOGICAL ECHNOLOGICAL 32.President of Bob Interview Babisch, Vice with WorldEntertainment, MilwaukeeFestival, One of the most important in the modern innovations music festival is the Streaming rights could involve several parties, namelyStreaming the venue or some rights could ADONIA M K IV. T C Y 6. M 6. advent of streaming and services. Streaming, capabilities in a basic sense, experience to viewersallows a venue to bring a live concert via the internet or other remoteThis service is becoming viewing services. the standard of the venue of desire to the part, festivals, both due, in modern concert venues and to bring its concerts to those not present and the desire of the artists to perform for a large audience. Other in the streaming considerations process is the relative cost-effectiveness of streaming the concert versus the exposure for the act; would this streaming pay for itself in a return of new fans? In experience deciding this question, the streaming partners must which festivals or decide Whichvenues reach their desired audience. venues would be best, based on demographics, existing fans, time of year, and place on the tour? However, these streaming capabilities naturally come with several as legal concerns, well concerns. as a variety of non-legal Inc., Milwaukee, Wis. (Sept. 7, 2017). These mix-ups customer evidence of actual create of prevention confusion, the goal of trademarkwhich is a specialized in such law and unacceptable MWFindustry. Finally, its trademark enforces such care because rights with Summerfest has created valuable goodwill in its communities, including Milwaukee, Wisconsin, the Midwest and at large. When is evidence of there another Summerfestthere is a risk that an experience at actual confusion, will a even if the experience occurs at of the festival, affect the public perception small Summerfest in Arizona,for example. reason, it is absolutely For this imperative that MWF, and all modern music festivals, utilize all resources rights. their trademarkavailable to protect 2018] the mark, more the in the minds create confusion likely to the festivalgoer. of MWF fielded several phone calls after Summerfest 2017 frompatrons wanting their Summerfestrefunds for MWF tickets. Unfortunately, not issue could patrons had attended particular because these these refunds rights and ownership would be discussed during private negotiation. In other rights and ownership would be discussed during private negotiation. cases, the band themselves may own their own streaming rights or have retained those rights during their label contract negotiation. In either case, either the combination side, namely of parties on the band’s the label, the songwriter, or themselves. the band 40672-mqi_22-1 Sheet No. 25 Side A 05/20/2019 14:43:36 A 05/20/2019 25 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 25 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. Commission Commission ) 9/21/2018 1:49 PM MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D However, what if a sponsor is added to defray the costs of a sponsor is added to defray the costs However, what if OT 33 N O (D INAL INAL Id. .F 33. It is well established that the advent of the internet has provided manyIt is well established that the advent The answer depends on the details of the sponsorship agreement.The answer depends on the details A Within the streaming performance,concerns are several marketing there ADONIA B. Concerns of the Federal Trade The Internet, Online Contests, and Legal 6. M 6. valuable resources to legal professionals within the entertainmentvaluable resources to legal professionals industry. One of the interweb’s more notable uses is the dissemination of information for a large audience. Many companies market of this feature to take advantage to certain demographics or track data on information and reception, perception, capitalization. The modern music festival is no stranger to this type of large- scale marketing;increasing the festival’s reach is in its best interest. in fact, Increased awareness of the event can lead to an increased fan base, larger names in booking, and increased revenues. regulated? this online presence But how is successful sponsorship agreement will balance the financial needs of the venue, agreement will sponsorship successful for the partnership, which could include as well as support the sponsor’s goals increasing their goodwill name or adding their to a well-known festival. One common concern within a sponsorship agreement, especially for well-known venues or popular use festivals, is the of both the sponsor’s and for its logo to be present venue/festival’s trademarks. If a sponsor requests during the live will for the duration of the show, the venue decide how stream financial paymenttranslate that exposure into a and calculate the to while marketingsponsorship accordingly. Conversely, the streamed event, will the sponsor have permission use the venue or festival’s logo? If so, the to venue may to limit be able any other brands or logos used in those marketing efforts. band itself or its label negotiates with negotiates its label itself or band to make the venue some important of the streamingSome experience. and feel regarding the look decisions decided betweenquestions the streaming: are the look of all parties will it be a few select, impactful cameras or many dynamicshots? Will there be stream included in the pyrotechnics and who will extras? How pay for those will and rights owners the venue Will sell the content? or the owner the venue pay for the streaming capabilities and implementation? Will How a sponsor? is that sponsor have does the band chosen, and to like them? When the answers of counsel to make are decided, it is the responsibility to these questions sure accurately. all details are contracted that will involve the legal department. likely Details of the streaming performance and after tickets are prior to booking of the band are handled already on sale. 46 the service? 40672-mqi_22-1 Sheet No. 25 Side B 05/20/2019 14:43:36 B 05/20/2019 25 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 26 Side A 05/20/2019 14:43:36 . 38 At At 47 ED 39 , F It is likely It is . 36 Contests are BBQ (2017), 37 IG G IG , B (April 2014), N ’ Naturally, the FTC has an 35 OMM C In furtherance of this mission,In furtherance 34 RADE . T ED hip between the event and the sponsor, in , F , https://www.ftc.gov/about-ftc/what-we-do N ’ OMM C RADE ) 9/21/2018 1:49 PM . T TIMES THEY ARE A-CHANGIN’ A-CHANGIN’ ARE THEY TIMES ED ELETE , F D OT (Sept. 2017), https://www.ftc.gov/tips-advice/business-center/guidance/ftcs- N O N ’ (D INAL INAL The FTC’s Endorsement Guides: What People Are Asking, Social Media Contests Consumer Information, Prize Scams What We Do Big Gig BBQ 2017 “Win a Keg-a-Que”Contest Official Rules Id. Id. OMM .F C 35. 36. 37. 34. 38. 39. As an example, the modern music may festival platforms utilize online to The FTC has recently issued new guidance to navigate the new wave of issued new guidance to navigate The FTC has recently The Federal Trade Commission,The Federal simple has a very or the FTC, mission: ADONIA M K RADE C Y 6. M 6. https://www.consumer.ftc.gov/articles/0199-prize-scams [https://perma.cc/6B5P-5EQ5] the end of the day, most modernsweepstakes music or festivals are utilizing https://www.biggigbbq.com/rules [https://perma.cc/72Q3-X7MH]. [https://perma.cc/NM8A-SG9S]. the FTC protects consumersthe FTC protects unfair, deceptive, or fraudulent by “stopping practices in the marketplace,” as well antitrust laws as enforcing keep to markets open and free, with healthy competition. endorsement-guides-what-people-are-asking#socialmediacontests [https://perma.cc/A6W5-9NWC]. conducted using a measurement and may of skill require payment of funds. interest in the regulation of marketinginterest in the regulation efforts that may be deceptive or otherwise injurious to the public. marketing efforts by companies, namely marketing, the use of online “influencer” marketing, mediaand social endorsements, practices. For example, a festival may host a bacon eating contest, the winner of which is determined by who can eat the most bacon in a certain amount of time. 2018] How can the modern can the How music its marketing with efforts reconcile festival the example The is how online below new laws? and regulation of structure marketing within can function successfully Trade of the Federal the directives Commission. that the modern music may festival of these initiatives to any or all utilize audience. its mission or fits best that waypromote their event, in the Further, a festival’s sponsors may undertake similar initiatives to capitalize on the key to navigating these options, according relationship with the festival. The the relations disclose to the FTC, is to order to ensure that the consumer (or the audience) understands there is a two. Byfinancial relationship between the presenting all information the to are consumer, that no unfair or deceptive practices the FTC should be satisfied sponsor. being undertaken by the festival or host promotions, or contests. sweepstakes, Under some state laws, these terms are used interchangeably. However, according to the FTC, all legitimate are determinedsweepstakes are free and winners by chance. T Protect consumers and promote competition. 40672-mqi_22-1 Sheet No. 26 Side A 05/20/2019 14:43:36 A 05/20/2019 26 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 26 Side B 05/20/2019 14:43:36 M K C Y The FTC [Vol. 22:1 [Vol. 41 note 37. All of these are supra 42 , By way of example,By way of let us consider 40 , (last revised Mar. 30, 2017) https://www.facebook , (last revised Mar. 30, 2017) ACEBOOK , F ) 9/21/2018 1:49 PM MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. requirements an online FTC when designing of the ELETE D OT N O some (D INAL INAL The FTC’s Endorsement Guides: What People Are Asking Facebook Pages Terms .F 40. Both Facebook and Twitter are registered trademarks of the respective owners, and the 41. 42. So what else is likely required in social mediaSo what else is likely required promotional posts? First, disclosures are required. are required. First, disclosures a prize provided sweepstakes is utilizing If a ADONIA 6. M 6. .com/page_guidelines.php [https://perma.cc/XQQ4-LDFA]. author does not assert ownership of these marks. author does not assert ownership of these a social media contest, and required disclosures therein, hosted by MWF. therein, hosted disclosures mediaa social required contest, and Below are giveaways to engage with consumers engage to giveaways media social through especially online, platforms, or Twitter. such as Facebook 48 leaves no room for assumptions in the mind of consumers; it is not obvious that not obvious is for assumptions in the mind of consumers; it leaves no room to a company in a sweepstakes was given a prize given away for free. the name of verbiage of both their clear in be should festivals Therefore, music the sweepstakes as a whole use of any identifying insignia associated and the with the promotion. For example, a music if a signed festival is giving away person to commentguitar to the first using the hashtag on a Facebook post #SummerfestSweepstakes2017, “sweepstakes” should be clear the use of enough to denote in the mind of the consumer that they are participating in a a prize at sweepstakes, there is no financial obligation, and they are receiving no cost. The name Summerfest clear enough to show the Sweepstakes is also same. by the online platformBasically, whatever else is required (i.e., Facebook or Twitter). According to Facebook rules relating to promotions, organizations are responsible for the lawful operation of that promotion, including the official rules of the promotion,requirements, offer terms and compliance and eligibility the promotion. with applicable rules governing straightforward elements and are likely already considered of a promotion language required by Facebook, before the contest is put online. Additional each entrant or participant by of Facebook however, includes a complete release and acknowledgementsponsored by, endorsed by, or is not that the promotion from FTC, this requirementadministered by Facebook. Based on the guidance makes goal of the disclosures is to make sense; the clear in the mind of the consumer the origin of the promotion. If Facebook is not actually affiliated with the promotionsorganization, or music by an presented festival, the so, in the interest of clear disclosure to producing organization should state public. sweepstakes; the following is not an extensive list. is not an extensive the following sweepstakes; two the between the relationship the organization should disclose a sponsor, by companies, if there is an endorsement especially of the product. A simple, no cost to us,” is sufficient. “Companyhas provided this prize at X 40672-mqi_22-1 Sheet No. 26 Side B 05/20/2019 14:43:36 B 05/20/2019 26 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 27 Side A 05/20/2019 14:43:36 49 OCIAL , S . ONCLUSION V. C ) 9/21/2018 1:49 PM Allthese pieces of information of to provide the serve TIMES THEY ARE A-CHANGIN’ A-CHANGIN’ ARE THEY TIMES Social Media Promotions and the Law: What you Need to Know 43 ELETE D OT N (Aug. 19, 2011), https://www.socialmediaexaminer.com/social-media-promotions- 2011), (Aug. 19, O (D INAL INAL .F XAMINER E 43. Sara Hawkins, In conclusion, the musicIn conclusion, the and well, and continues festival industry is alive While somethere are FTC, by the outlined officially not additional ADONIA M K EDIA C Y 6. M 6. to be a place of enjoyment modern for people of all ages. The music festival is sameinvited to share the innovation as are available to all opportunities for modern Withsponsorship. venues, including streaming and this great power comes of compliance the great responsibilities with all legal requirements to be interesting certainly will It ADA and FTC compliance. including therein, see the evolution of the modernfestival industry, but for now, the festival scene before. is just as rockin’ as ever most consumer, detail possible to the the official FTC which is the purpose of the modern FTC regulations, music with the official guidance. Together festival maysocial media conduct successful and utilize these contests potential. platforms to their fullest marketing elements promotions.official rules for be included in that should These elementsadditional method include an alternative participation so that of free term is necessary, the no purchase the promotion, of the number of prizes, the cash value and of the prizes, the odds of and the mannerwinning each prize, of of winners. selection M 2018] and-the-law-what-you-need-to-know/ [https://perma.cc/H72W-C3W5] 40672-mqi_22-1 Sheet No. 27 Side A 05/20/2019 14:43:36 A 05/20/2019 27 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 27 Side B 05/20/2019 14:43:36 M K C Y 40672-mqi_22-1 Sheet No. 27 Side B 05/20/2019 14:43:36 B 05/20/2019 27 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 28 Side A 05/20/2019 14:43:36 , 52 54 9/21/2018 1:50 PM * LJABBAN TM A ...... 61 ...... 57 ALEB T Remedium eXchange (Rx) Think Tank AND , ECOSYSTEM...... 61 ...... OU Entrepreneurs G I re: ...... 62 62 re: ...... REFORM grant Population: , S to Capital...... 63 ...... to Capital. EM ployment: S. S S. ENTREPRENEURS ) NTREPRENEURIAL ...... E ELETE CELEBRATING WISCONSIN WISCONSIN CELEBRATING ANIEL Innovation Cultu S D ’ D OT OT N Ranking ...... 59 1. Midwestern Culture: ...... 60 60 ...... 1. MidwesternCulture: 2. Decreasing Immi 3. Low Unem 4. More of a Manufacturing and Less of a Technology- 5. Lack of Access Ecosystem ...... 63 O (D A.54 ...... and Exports Major Beyond Beer and Cheese: Industries B. Celebrating Wisconsin C. Measuring Entrepreneurialism in Wisconsin: National D. Wisconsin Challenges Facing the Entrepreneurial Ecosystem60 E. Opportunities: Resources to Grow and Initiatives the F.in Wisconsin Law - Legislation to Encourage Investment LESSONS LEARNED FROM WISCONSIN FROM WISCONSIN LESSONS LEARNED INAL INAL ISCONSIN * Dean and Professor of Business, Professor of Pharmaceutical Sciences, Concordia of Pharmaceutical Sciences, Concordia * Dean and Professor of Business, Professor .F SECTOR THAT IS DRIVING HEALTHCARE IS DRIVING HEALTHCARE SECTOR THAT ENTREPRENEURS AND BUSINESSES, AND AND BUSINESSES, ENTREPRENEURS FUTURE PROSPECTS FOR A HEALTHTECH FOR A HEALTHTECH FUTURE PROSPECTS NTRODUCTION M K EM C Y 7. S 7. I. I University Wisconsin; Law J.D., Marquette University School, Ph.D., University of Wisconsin at Madison, MBA, Marquette University. Daniel Sem is also a co-founder of Bridge to Cures Inc., healthcare mentoring to devoted a nonprofit [https://perma.cc/F27G-X74W], www.bridgetocures.com and HealthTech entrepreneurs in Wisconsin. and Taleb Aljeban is Si Gou is an undergraduate student The a graduate student at Concordia University Wisconsin, in the Batterman School of Business. authors would like to thank members of the for strategic input on this article, as http://rxthinktank.org/our-staff/ [https://perma.cc/33FD-4TQA], Scholz. well as Colin Murdy and Professor Tom II. W 40672-mqi_22-1 Sheet No. 28 Side A 05/20/2019 14:43:36 A 05/20/2019 28 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 28 Side B 05/20/2019 14:43:36 , M K C Y 86 92 69 OR [Vol. 22:1 [Vol. F 9/21/2018 1:50 PM OADMAP ECH T in the United States for : A R EALTH H In contrast, Wisconsin ranks at EFORM 1 HE R T s ...... s ...... 76 United States ...... 89 89 ...... United States NTRODUCTION and Acces ups ...... ups ...... 66 EALTHCARE I. I H ooms? ...... 79 ooms? 79 ...... althcare ...... althcare ...... 91 PPORTUNITIES FOR PPORTUNITIES ISCONSIN ...... O ...... 69 69 ...... MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. TATES ...... NABLED W (May 18, 2017, 7:00 AM), http://www.jsonline.com/story/money/2017/05/ S ) -E , For Third Straight Year, Wisconsin Ranks Last in Business Startup Activity ...... 83...... ELETE Wisconsin Start D ECH NITED ENTINEL OT OT T N U HealthTech ...... 68 Innovation 74 ...... Southeast Wisconsin United States is Cost Healthcare System in the Consumerize He via Emergency R via Emergency Solution ...... 80 Bundling ...... 81 81 Bundling ...... O J. S (D HE NDUSTRY IN NDUSTRY G. Growth Future Opportunities Healthcare – Spotlight on and T I A. Learning from Best Practices in the Rest of the World ...... 86 A...... the World Learning from BestRest Practices in the of A. Wisconsin’s History of Healthcare and HealthTech Rich B. HealthTech and the Entrepreneurial Ecosystem Startups in D. for the Poor—Universal Healthcare Access Challenges Care B.HealthTech-enabled Hybrid and Tiered Proposal for a C. The Major the Healthcare Industry in the Challenge Facing C. The Remedium eXchange (Rx) Think Tank—Helping to E. for the Poor—A Healthcare Access Challenges HealthTech F. Healthcare Solutions: Transparent Pricing, Medical Homes and H.85 ...... and Consumerization Barriers to Healthcare Reform G.Healthcare Technology: Consumerizing Enabling HealthTech EALTH INAL INAL HALLENGES AND HALLENGES ONCLUSION ...... 1. Rick Romell .F Wisconsin a rich history of entrepreneurial activity, which is often not has EM ILWAUKEE 7. S 7. M 18/third-straight-year-wisconsin-ranks-last-business-startup-activity/328803001 [https://perma.cc/S6YZ-HPUJ]. III. C the top appreciated beyond its well-recognized strength in the beer and cheese appreciated beyond its well-recognized industries. However, Wisconsin’s entrepreneurial nature has been called into question. Recently, Wisconsin was ranked fiftieth 52 startup activity by the Kauffman Foundation. V. C IV. H 40672-mqi_22-1 Sheet No. 28 Side B 05/20/2019 14:43:36 B 05/20/2019 28 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 29 Side A 05/20/2019 14:43:36 53 , 9/21/2018 1:50 PM OUNDATION F ), with lessons learned ), with lessons ), which has significant ), which has significant AUFFMAN , K Table 1 tartup-activity&indicator=se- Table 2 ) ELETE D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT N The first half of this article willhalf of this article The first review some and of the challenges O 2 (D Larger States Rankings: Main Street Entrepreneurship INAL INAL 2. .F The second half of the article willThe second half of deeper and forward-looking provide a M K EM C Y 7. S 7. opportunities that have faced Wisconsin entrepreneurs, and will Wisconsin that have faced opportunities an provide entrepreneurs, and of over 150 Wisconsinoverview companies ( fromtheir founders. Multiple taken by entrepreneurial journeys the industry sectors will reviewed, be manufacturing,food and beverage, including regulatory, mentoring, seed healthcare. Resources (legal, biotechnology and entrepreneurial created to improve Wisconsin’secosystem are being funds) that presented. will also be sector, HealthTech ( analysis of one industry impactgrowth positively potential, and potential to reform. healthcare However, the HealthTechand faces political, legal, regulatory, industry also that could block its growth—abusiness challenges that growth has to potential and The history of the healthcare positively impact the healthcare industry. a summaryof in Wisconsinbe reviewed, followed by will industry HealthTech for the industry. The status of healthcare the current status and a look forward in the United States, with its high cost and poor access, will be discussed in the context of the current political debate. this political debate that It will be argued is focused more than on how to constrain cost and increase on who is covered discussion of the relative value (and quality, and it does not provide a useful current implementation) of single payer versus competitive markets as a way Ato control cost and increase quality. case will be presented that Wisconsin’s HealthTech entrepreneurs could provide lower cost and higher quality of care. Still, challenges consumerization healthcare, via technology-enabled extend marketwhich may issues and barriers to entry, exist that relate to privacy monopoly-power (intended to foster beyond intellectual property-based innovation) into the realm business practices that hinder of anti-competitive market-driven improvements in healthcare delivery (e.g., consumer-driven value-based shopping; usage of medical centers of excellence; consumer- centric integrated care). The promise of HealthTech-based consumerization tools that empower front-line of healthcare to at the and educate consumers provide higher quality care at lower with cost is presented, along the legal and regulatory challenges that may to be addressed for HealthTech need goal. entrepreneurs to succeed in this of the country for startups that are local and established business with more business and established are local that for startups country of the longevity. 2018] http://www.kauffman.org/kauffman-index/rankings?report=s 2017). (last visited Sept. 26, rate&type=larger [https://perma.cc/RPY6-VQXL] 40672-mqi_22-1 Sheet No. 29 Side A 05/20/2019 14:43:36 A 05/20/2019 29 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 29 Side B 05/20/2019 14:43:36 3 7 M K C Y . (May EV . R [Vol. 22:1 [Vol. US 9/21/2018 1:50 PM . B (Oct. 18, 2016), ARV As markets started , H 8 (Sept. 26, 2017), ENTINEL , https://www.bioforward.org/ J. S NALYSIS , https://www.wisconsinhistory.org/tu . A Y ISCONSIN ’ , 186 (The State Historical Soc’y of Wis. ILWAUKEE W CON OC ); and, increasingly it is the source ); and, increasingly S E , M ISCONSIN ORWARD W F Table 1 UREAU OF IO ISTORICAL fm?fips=55000&areatype=STATE&geotype=3 . B NTREPRENEURIAL ECOSYSTEM ECOSYSTEM NTREPRENEURIAL , B . H E IS OM S C ’ ISTORY OF , W H T OF ’ 4 century, with dramatic growth in the period of time consumer co-operative techniques . . . supporting co- consumer co-operative techniques EP HORT MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. What an Entrepreneurship Ecosystem Actually Is What an Actually Entrepreneurship Ecosystem Wisconsin and is home has a rich entrepreneurial history ) ISCONSIN 5 , A S , U.S. D Sem: The Wisconsin Entrepreneur ELETE ARA D II. W G OT OT N Old WorldOld O A. Exports Beer and Cheese: Major Beyond Industries and ARRY (D Wisconsin Strength of Wisconsin Biohealth 19th-Century Immigration 6 INAL INAL 4. Dan Sem, 3. Daniel Isenberg, 5. 8. L 6. 7. .F Immigrants from Europe and the Eastern United States settled in WisconsinStates settled United Immigrants Europe and the Eastern from An entrepreneurial ecosystemAn entrepreneurial element as a core can be defined of an As is well-known, Wisconsin’sAs is well-known, successes include entrepreneurial EM 7. S 7. strength-wisconsin-biohealth/ [https://perma.cc/SEP2-6DV3] (last visited Sept. 26, 2017). strength-wisconsin-biohealth/ [https://perma.cc/SEP2-6DV3] (last visited Sept. 26, economic development on fostering entrepreneurship. that focuses strategy This could include the people, the supporting institutions This could resources, and people, the supporting as well the include providing a begins by This article of a region. and values as the culture of Wisconsin’shistorical overview ecosystem entrepreneurial and of the Wisconsin entrepreneur. to flourish, many producing cheese and brewing beer. Whileproducing cheese are an important these industries aspect of its economy, Wisconsin’s finance, insurance, largest industries are to the Bureau of Economicaccording rental and leasing real estate, and (“BEA”). Analysis 1962). 12, 2014), https://hbr.org/2014/05/what-an-entrepreneurial-ecosystem-actually-is [https://perma.cc/A 12, 2014), https://hbr.org/2014/05/what-an-entrepreneurial-ecosystem-actually-is 827-LPKV]. of new and emerging companiesin growth in areas like healthcare (e.g., medical and diagnostics), biotechnology, and HealthTech (e.g., digital devices health). to many well-recognized domesticto many well-recognized companies and international that were Wisconsin entrepreneurs ( started by operative stores,” and establishing the concept of a market. a of concept the establishing operative stores,” and With was an increased demand this rapid population growth, there for merchandise. Immigrants brought crucial knowledge and experience “of successful 54 http://www.jsonline.com/story/money/business/onramp/blog/2016/10/18/sem-wisconsin- entrepreneur/92382318 [https://perma.cc/4NPN-62RW]. during the nineteenth increased 1848. population in Wisconsin’s state a becoming leading up to during the period fromfrom 1836–1850. 11,000 to over 305,000, thirty-fold, rningpoints/tp-018/?action=more_essay [https://perma.cc/5ANT-QRLD] (last visited July 31, 2017). 31, July (last visited [https://perma.cc/5ANT-QRLD] rningpoints/tp-018/?action=more_essay [https://perma.cc/9P3V-R5XM]. https://www.bea.gov/regional/bearfacts/pdf.c 40672-mqi_22-1 Sheet No. 29 Side B 05/20/2019 14:43:36 B 05/20/2019 29 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 30 Side A 05/20/2019 14:43:36 , 55 9/21/2018 1:50 PM (May 27, 2016 5:00 . ACH 12-14 (2014), GRIC A OURNALS Examples of Wisconsin . J 10 US B ). HE ENSUS OF , T Table 1 , 1 2012 C Adding to this strength in the dairy industry, the dairy industry, this strength in Adding to , https://www.revenue.wi.gov/DORReports/bt1001611.pdf 9 EVENUE R Largest Wisconsin Breweries ). ) include Miller (now MillerCoors), Leinenkugel, Minhas T OF ’ EP 11 ELETE D Table 1 CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING . D OT OT N IS O W Wisconsin Beer Production Report Returns Posted between 11/1/2016 and 11/30/2016 (D Dairy Cattle and Milk Production INAL INAL 9. 11. Barbara Zaferos, 10. .F Besides the dairy and beer industries, businesses from different industries Besides the dairy and beer industries, Along with the dairy industry, WisconsinAlong with the dairy is a significant beer supplier. In M K EM TATE OF C Y 7. S 7. thrived in the past two construction, energy, finance, centuries, including Somehealthcare, insurance, law, and manufacturing. companies in founded Wisconsin an international presence, such as Harley- have grown to have Davidson, Northwestern Mutual, Alliant Energy, Acuity Insurance, and Brady Corporation ( AM), https://www.bizjournals.com/milwaukee/subscriber-only/2016/05/27/largest-wisconsin-brewer ies.html [https://perma.cc/G8Z6-QKPM]. beer companies ambitious immigrant entrepreneurs founded their own companies in Wisconsin. in own companies their founded entrepreneurs immigrant ambitious As time Wisconsin progressed, as a dominant itself with strength established Accordingdairy supplier. the United to States Department of Agriculture, Wisconsin was second in the Unites ranked States, with 1.3 million milk cows in sales in 2012. and $5 billion 2018] [https://perma.cc/6UH2-MYLC]. Craft Brewing, Stevens Point Brewery and moreCraft Brewing, Stevens Brewery, recently, Lakefront left that have since brands Brewing. Older Glarus Sprecher’s and New WisconsinBrewing Company include Joseph Schlitz (founded in 1848 and and Pabst Brewing Companyonce the largest producer of beer) (founded in 1844). Wisconsin is also strong morebeverage industry, and generally in the food with dairy-based companies like Sargento Cheese, Palermo’s (pizza), and Culver’s prominent(frozen custard) being brands ( one month, Wisconsin barrels of beer, and sells 622,071 produces 868,424 kegs of beer for export out of state. cases and 71,638 https://www.agcensus.usda.gov/Publications/2012/Online_Resources/Highlights/Dairy_Cattle_Milk_ Prod/Dairy_Cattle_and_Milk_Production_Highlights.pdf [https://perma.cc/C3N2-5NM9]. S 40672-mqi_22-1 Sheet No. 30 Side A 05/20/2019 14:43:36 A 05/20/2019 30 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 30 Side B 05/20/2019 14:43:36 J. M K C Y and the 12 ILWAUKEE [Vol. 22:1 [Vol. 9/21/2018 1:50 PM , M profiles over 150 over profiles TM MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. Manufacturing Biggest Single Employment Sector in State ) ELETE D OT OT . The Wisconsin Entrepreneur Exhibit Entrepreneur Wisconsin The . N O (Sept. 26, 2014), http://archive.jsonline.com/business/as-us-creates-low-wage-jobs- (D Wisconsin also exports a considerable number of products. Wisconsin’s Fig. 1 Fig. INAL INAL 12. John Schmid, .F Manufacturing is the largest employment sector in Wisconsin, EM Wisconsin companies in thirteen major sectors. The profiles profiles The sectors. major in thirteen companies Wisconsin the of stories the tell (https://www.cuwbusiness.com/wi-entreprenuer) values. their and founders ENTINEL 7. S 7. 56 S wisconsin-clings-to-manufacturing-b99348747z1-277269841.html/ [https://perma.cc/5QYF-NVN2]. wisconsin-clings-to-manufacturing-b99348747z1-277269841.html/ [https://perma.cc/5QYF-NVN2]. biggest manufacturing sub-sectors include electric equipmentbiggest manufacturing manufacturing sub-sectors include (e.g., Rockwell Automation Power Systems) Inc. and Generac followed by paper and paper converting (e.g., Kimberly sectors such Clark) and then other chemicalsas food and beverage (dairy, agriculture), (plastics, consumer products) and machinery (machines, metalworking, hardware, foundries, stamping). 40672-mqi_22-1 Sheet No. 30 Side B 05/20/2019 14:43:36 B 05/20/2019 30 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 31 Side A 05/20/2019 14:43:36 ; 57 Fig. 1 Fig. in what 15 9/21/2018 1:50 PM . The compilation Manufacturing and TM 13 Historically,Wisconsin Wisconsin Manufacturers The other largest sector is 14 16 , https://milwaukeehistory.net/ [https://perma.cc/H9 Y ’ Wisconsin’s Exports: A Special Report on Wisconsin’s Wisconsin’s Exports: A Special Report on Wisconsin’s , OC S , with a synopsis of key information provided in EVENUE R ISTORICAL , http://www.fabwisconsin.com [https://perma.cc/P8G4-EJRC] (last T OF Wisconsin Exhibit Entrepreneur Fig. 1 Fig. ’ . H O EP ) C D B. Entrepreneurs Wisconsin Celebrating ISCONSIN ELETE D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT B W N ISCONSIN A ILWAUKEE . at 4. . at O Id (D . Wisconsin companies tend to cluster into the sectors shown in , 1 (2011) https://www.revenue.wi.gov/DORReports/10exports.pdf [https://perma.cc/X3TT- INAL INAL 15. M 14. 13. W 16. F .F Wisconsin has a rich history of entrepreneurial successes, but the stories of successes, but the stories of entrepreneurial rich history Wisconsin has a M K EM C Y 7. S 7. Economy CBZT]. ZB-FYT7] (last modified 2018). ZB-FYT7] (last modified modified 2012). but it is but noteworthynumbers that the in terms of largest sector companies is of brands like Sargento, Palermo’s,food and beverage, with recognizable Sendik’s, Johnsonville Foods, Usinger’s, MillerCoors, Pabst, Cousins Subs, Pick ‘nSentry Foods, Roundy’s (Kroger’s, Save in Wisconsin), Oscar Meyer, Penzeys Spices, Hillshire Farms, Organic Valley, Rocky Rococo, and Natural industry the food and beverage Ovens. The trade organization supporting sector in Wisconsin Wisconsin. is FaB Table 1 the formation of those companies of the people who founded them – and – are this problem, address one location. To on not available in information over 150 Wisconsin companies, values of their founders’ stories and the core including the companies, compiled is being Concordia in a partnership between University Wisconsin the Milwaukee and Society, County Historical is being called the interface is shown in exports increased to increased exports $19.8 billion in 2010, withfive the top destinations export Mexico,being Canada, Germany, China, and Japan. 2018] companies also contributed significantly during World War II. For example, companiesduring World significantly also contributed War II. effort. vessels for the U.S. Oshkosh and built eighty Corporation designed machinery one of Wisconsin’s represent comprising industries, larger export 27% total Wisconsin’s of followed by computers exports in 2010, total and and electronics, transportation equipment. manufacturing which includes Harley-Davidson, Hydrite and engineering, Chemical, Mercury Johnson Controls, Kohler, Marine Outboard (Evinrude Trek Bikes, amongstEngines), Rexnord, SC Johnson and many others. It is noteworthy that Wisconsin a large number can also boast of law firms (Foley, Michael Best, DeWitt Ross and Stevens, Godfrey Kahn,Quarles and Brady) and insurance companies American (Acuity, Family, Northwestern Mutual, Sentry, Thrivent and West Bend Mutual). The trade organization supporting the manufacturing industry sector in Wisconsin is 40672-mqi_22-1 Sheet No. 31 Side A 05/20/2019 14:43:36 A 05/20/2019 31 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 31 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 9/21/2018 1:50 PM illustrates the large illustrates TM for Sargento. for Sargento. A survey of the company , www.wmc.org [https://perma.cc/E32A-KSE6]. , www.wmc.org Fig. 2 Fig. . OMMERCE TM .& C MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. FRS Wisconsin Exhibit Entrepreneur ) M Retail companies Menards, include Kohl’s, QuikTrip, Allen ELETE 17 . D . Representative profile of a company in the Wisconsin of in the a Wisconsin company profile . Representative OT OT N ISCONSIN O (D Fig. 2 Fig. INAL INAL Entrepreneur Exhibit Entrepreneur 17. W .F EM 7. S 7. Edmonds Shoes, and Florsheim sampling Shoes. This larger list of of the companies in the profiles reveals a commonprofiles reveals a theme of values amongst Wisconsin companies, integrity, hard work,including trust, honesty, and quality. Mission statements reflect these same state the centrality of the values, and on occasion also corporate culture, which religious values as drivers of founders’ faith and economics. business, and frequently blend faith, number origins in brands (companies) of recognizable have their that Wisconsinstarted by Wisconsin and were A representative entrepreneurs. is shown in a company profile of and Commerce and 58 40672-mqi_22-1 Sheet No. 31 Side B 05/20/2019 14:43:36 B 05/20/2019 31 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 32 Side A 05/20/2019 14:43:36 , 20 59 ). OMMERCE Fig. 1 Fig. C 9/21/2018 1:50 PM Thus, while and N OF ’ 19 Entrepreneurial (Nov. 20, 2007), SS 3 (Mark Casson et al. 3 (Mark Casson et al. A 21 Table 1 ROUP G In a recent conference ,” an expert panel 23 ILWAUKEE , http://www.kauffman.org/kauffma In the words of Todd Teske, Todd In the words of . M ., https://www.cuwbusiness.com/wien 22 This ranking has led manyThis ranking in TEERING US NTREPRENEURSHIP S E B ETRO 18 M A Framework for Addressing and Measuring , which focuses on local local , which focuses on small and OUNDATION F note 2. ONCORDIA C NDICATORS ANDBOOK OF I supra H , AUFFMAN , K XFORD O HE OUNDATION F , T ) NTREPRENEURSHIP ELETE ASSON D C AUFFMAN , E CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING Celebrating the Wisconsin Entrepreneur Celebrating OT OT K N ARK O Wisconsin International Trade Conference, Wisconsin Entrepreneur Exhibit, 2016 Main Street Reports See (D C. Ranking Measuring in Wisconsin: Entrepreneurialism National INAL INAL 19. 22. Nadim Ahmad and Anders Hoffman, 18. 20. 21. M 23. .F While Wisconsin may rank at the bottom in the Kauffman Index for Startup If Wisconsin ranks low in one Kauffman If Wisconsin ranks low in Index and high in another for According to the KauffmanAccording annual Index Foundation’s of Startup Activity, M K EM C Y 7. S 7. n-index/reporting/main-street [https://perma.cc/8JGW-BUGR] (last visited Sept. 26, 2017). 2017). n-index/reporting/main-street [https://perma.cc/8JGW-BUGR] (last visited Sept. 26, trepreneur [https://perma.cc/T4MC-3RRH]. eds., 2006). entrepreneurial business activity, howentrepreneurial business activity, does one define the Wisconsin entrepreneur and what he or and who creates newa person who is viewed as an innovator industries sheand is good at? Anprecipitates major structural changes in the economy. entrepreneur can be defined as Entrepreneurship Wisconsin of entrepreneurialism about the level to feel concerned the state in discussions about It has also led to and promptedhow to improve debate on it. entrepreneur. what defines the Wisconsin Kauffman Foundation’s ranks second in the country in the Activity, it actually Index of Main Street Entrepreneurship entrepreneurialism) can (that drives innovation CEO of Briggs and Stratton, the solving.” as “customer-driven problem be defined established businesses (more than five years old and less than fifty employees), fifty years old and less than five (moreestablished businesses than business. such as survival rate of these and includes factors 2018] http://web.mmac.org/events/Wisconsin-International-Trade-Conference—1117/details 2017). [https://perma.cc/2YEL-VMQK] (last visited Sept. 29, Wisconsinactivity. last for startup ranked focused on “ activity is enterprising humanis enterprising the generation of value, in pursuit of activity action and identifying of economicthrough the creation or expansion activity, by or markets.exploiting new products, processes, Wisconsin may not have the startup churning activity that is observed in states Wisconsin activity that is observed maythe startup churning not have and does appear to excel at building like California, it growing small sustainable that stand the test businesses of time. In this regard, there are many stories of Wisconsin and companies entrepreneurs started that have small but Harley-Davidson, brands, like later grew to be widely recognized Kohl’s, Menards, Rockwell Automation, (cheese), Cousins Subs, Sargento Briggs and Miller, to namejust a few (see Stratton, SC Johnson, and http://search.oecd.org/std/business-stats/39629644.pdf [https://perma.cc/GMS2-B8LH]. 40672-mqi_22-1 Sheet No. 32 Side A 05/20/2019 14:43:36 A 05/20/2019 32 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 32 Side B 05/20/2019 14:43:36 26 M K C Y [Vol. 22:1 [Vol. Celebrating 9/21/2018 1:50 PM ). These are certainly Table 1 ; )—can be problematic in starting While the Wisconsin entrepreneur 25 note 18. Fig. 1 Fig. ( TM supra , event concluded that Wisconsin entrepreneurs TM 27 OUNDATION Wisconsin entrepreneurs were described as “innovative, “innovative, Wisconsin as were described entrepreneurs MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. F 24 ) note 4. ELETE D AUFFMAN supra OT OT K N . . O Id Id See (D D.Ecosystem Challenges Facing the WisconsinEntrepreneurial Index of Main Street Entrepreneurship INAL INAL 26. 27. 24. Sem, 25. .F The Kauffman Foundation survey data make it clear that while Wisconsin the expert panel at the As discussed in the previous section, EM 7. S 7. is strong in Main Street Entrepreneurship, challenges remain for the creation of venture by that are funded the kind startups, and high-reward scalable high-risk capital. While the causes of this entrepreneurial culture dichotomy are not known, several are proposed below. 1. Midwestern Culture: capital efficient, hard-working, hard-working, capital efficient, humblevalues-driven, it was reliable,” and and that last; sustainable businesses in creating these traits are valuable noted that maybut they high-reward very high-risk and the creation of work against was noted also capital to scale. It of venture need large amounts startups that Wisconsinthat a trait of the entrepreneur is humility, which a is a virtue. But, potential down-side was agreed humility noted: “the panel and audience is another great virtue—butcuts both ways, it do selling to because you need to attract investment and then customers.” attempted Wisconsin to define differ fromhow they and entrepreneurs, their coastal counterparts. Perhaps this is why the Wisconsin leader in Main entrepreneur is a national Street Entrepreneurship. 60 admirableHowever, and in life. traits in business the panel also felt that this aversion to to an coupled Midwest,typically which exhibited in the is humility pursuit of high-cost high-risk ventures “selling,” along with an aversion for (seemingly opposed to being “reliable”)—while admirable in some situations (e.g., may be somewhatextreme, excel at sales (and, in the averse and may risk not it was observed “the Wisconsinhype and puffery), entrepreneur is more enduring and robust—often more the sprinter.” the distance-runner than typically embrace hard work, integrity, delivering on promisestypically embrace without integrity, hard work, reliable, and acting withexcessive hype or hyperbole, being humility coupled to a commitment to values. the research is further supported by This assessment 150 Wisconsin-basedthat went in to profiling the over companies in the Wisconsin Exhibit Entrepreneur Wisconsin Entrepreneur 40672-mqi_22-1 Sheet No. 32 Side B 05/20/2019 14:43:36 B 05/20/2019 32 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 33 Side A 05/20/2019 14:43:36 . IS 61 and , W Table 1 9/21/2018 1:50 PM While unemployment 31 Historically, Wisconsin’s 30 The extent of immigrant migration to (and 28 ) ELETE D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT The U.S. unemployment rate is 4.4%. N 29 . O Id. Id. Id Wisconsin’s a Bottom-Feeder in Startup Index. Here’s Why, and How it Can Improve Index. Here’s Why, and How Startup in Wisconsin’s a Bottom-Feeder (D ). Immigrants are importantto Wisconsin’s entrepreneurial ecosystem J. (May 19, 2017), http://host.madison.com/wsj/business/wisconsin-s-a-bottom-feeder-in- INAL INAL 29. 30. 31. 28. .F While low unemployment a good thing, means people are often (overly) Wisconsincan be seen has a rich history of immigrant entrepreneurs, as M K EM TATE C Y 7. S 7. satisfied with their current job and the status quo. Sometimessatisfied with their current job and people pursue have no other options (i.e., the risk of entrepreneurial ventures because they taking “the leap” is lower in terms of opportunity cost, in a “what do I have to lose” situation). Wisconsin’s unemployment rate recently dropped to a seventeen-year low of 3.2%, well below the 9.2% peak during the Great Recession. 3. Low Unemployment: unemployment rate is lower than the national average. startup-index-here-s/article_ec612faf-03fd-5b93-968c-730b427e8eed.html [https://perma.cc/2CYF- startup-index-here-s/article_ec612faf-03fd-5b93-968c-730b427e8eed.html 2ASU]. Fig. 1 Fig. twiceare statistically likely to as because they a smallstart business relative to non-immigrants, have by necessity overcome perhaps because they risk- the startup entrepreneurs; and immigrantsaversion challenge that plagues all ecosystemprovide a diversity which an entrepreneurial needs. As evidence of this, consider Wisconsin’s business creation successes in the early twentieth century, which came at a time roughly twenty-five percent of the state’s when population was born overseas. new companies companies new with high potential. growth This mindset the risk hinders often and a very high-risk start and finance needed to “selling” that is taking and is sometimes via a process that scalable venture, high-reward to a high coupled with associated level of uncertainty outcomes What for the venture. might be is sometimes as foolish and viewed in California bold and visionary viewed as in Wisconsin.risky puffery in Wisconsin, The approach is to bootstrap rather, a business and grow it incrementally grows, thereby justifying the as revenue expansion. 2.Population: Decreasing Immigrant its most iconic companies ( of some of founders the of after perusal 2018] retention in) Wisconsin is much lower now than a century ago and is less than retention in) Wisconsin is much lower now than a century ago and is less in the coastal United States, where immigrant entrepreneurs were often first offered by the high density of top U.S. attracted by the quality education locations. universities in those S 40672-mqi_22-1 Sheet No. 33 Side A 05/20/2019 14:43:36 A 05/20/2019 33 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 33 Side B 05/20/2019 14:43:36 J. 35 M K C Y However, However, [Vol. 22:1 [Vol. ILWAUKEE 9/21/2018 1:50 PM 36 , M The state can 33 , https://www.wisconsinhisto Y ’ Furthermore, the recent ., http://inwisconsin.com/inside- OC 37 S ORP . C EV . D ISTORICAL . H While Wisconsin’s have industries CON E IS (May 15, 2017), http://www.modernhealthcare.com 34 , W ISCONSIN EALTHCARE , W H 32 MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. Wisconsin Economy Stuck in Old Growth Industries Wisconsin Economy Stuck in Old Growth ODERN note 30. ) Life After Pfizer: A Decade Later, Michigan Pharmaceutical Companies have Companies Michigan Pharmaceutical Later, Decade A Life After Pfizer: , M ELETE supra D OT OT N . O Organizational Reports The Rise of Skilled Manufacturing Id (D (June 17, 2013), http://archive.jsonline.com/business/wisconsin-economy-stuck-in-old- (June 17, 2013), http://archive.jsonline.com/business/wisconsin-economy-stuck-in-old- INAL INAL 35. 37. 34. 33. John Schmid, 32. Jay Greene, 36. Schmid, .F The major Wisconsindriving economic industries that are growth are in EM ENTINEL 7. S 7. Found Paths to Growth wedc/transparency/reports/ [https://perma.cc/9SZW-Q64T] (last visited Aug. 27, 2017). wedc/transparency/reports/ [https://perma.cc/9SZW-Q64T] (last visited Aug. 27, /article/20170515/NEWS/170519908 [https://perma.cc/4MS3-YDJZ]. growth-industries-b9934100z1-211923141.html [https://perma.cc/R3BJ-MVPD].growth-industries-b9934100z1-211923141.html attribute only 15% of its economic output to technology-innovation-driven its economicgains 18.8% output fromon average of nation industries, while the like California and industries; states technology-innovation-driven Massachusetts rank even higher. is certainly not a solution to Wisconsin’s a solution not is certainly it is worthstartups, of dearth noting that occurs whenresult of the churning that as a companies large with highly skilled workforces skilled yet unemployed have layoffs, workers often start new companies—as of Michigan’s with the downsizing has been the case pharmaceutical industry. Wisconsingrowing technology-innovation industry base. does have a Furthermore, a Wisconsin Economic Development Corporation (“WEDC”) industries are seen report notes that “Madison’s and biotechnology life-sciences industries.” showcase as being among the state’s announcement of Foxconn locating in Wisconsin is expected to grow the state’s locating announcement of Foxconn capability—as of a skilled as there is enough advanced manufacturing long Part of what attracts and retains technology-innovation startups are first class Part of what attracts and retains technology-innovation workforce.educational institutions and an educated While Wisconsin does colleges, they are not in as high a have excellent universities and technical density as in states with larger technology-innovation hubs (e.g., Massachusetts slightly lower level of post-secondary is a and California). Additionally, there education in the workforce in Wisconsin compared to the national average. Wisconsin and older with only a high school degree adults age twenty-five number 33.6%,compared to the national average of 28.4%. 62 4. Culture: More a Manufacturing of a Technology-Innovation and Less of manufacturing, some and related “old growth” industries. historically been focused on manufacturing,historically been focused it is now making to the transition advanced manufacturing—which relies more and innovation. on technology S ry.org/turningpoints/tp-044/?action=more_essay [https://perma.cc/9A82-RYEK] [https://perma.cc/9A82-RYEK] Sept. 29, (last visited ry.org/turningpoints/tp-044/?action=more_essay 2017). 40672-mqi_22-1 Sheet No. 33 Side B 05/20/2019 14:43:36 B 05/20/2019 33 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 34 Side A 05/20/2019 14:43:36 , , 39 63 (Mar. indicate 38 41 CONOMY 9/21/2018 1:50 PM , X , http://wisconsintechnologycouncil predominantly in California, 40 OUNCIL . C ECH The Tech Skills Gap Will Test Foxconn’s New The Tech Skills Gap Will Test Foxconn’s New T (July 28, 2017), http://www.jsonline.com/story/money/2017 (July 28, 2017), Madison, Wisconsin: How a City a Hub an Innovation Becomes Madison, Wisconsin: How ISCONSIN , W Alarm Sounded Over Wisconsin’s Lack of Start-ups, Venture Capital Venture Start-ups, of Lack Wisconsin’s Sounded Over Alarm ENTINEL Rockwell Automation partners with Foxconn on Wisconsin Plant Rockwell Automation partners with Foxconn J. S (July 26, 2017 6:41 PM), https://www.wired.com/story/foxconn- Investors Reboot Wisconsin Venture Capital Association Capital Reboot Wisconsin Venture Investors (June 01, 2014), http://archive.jsonline.com/business/alarm-sounded-over- While Madison may be the most hub of well-known ) (June 16, 2016), http://www.atlanticcouncil.org/blogs/futuresource/madison- 42 IRED ELETE D , W CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING ENTINEL OT OT ILWAUKEE N O J. S OUNCIL , M C WTC 2017 Whitepapers (D E.Ecosystem Opportunities: to Grow Resources and Initiatives the INAL INAL 39. Kathleen Gallagher, 42.Peter Alex Paul Engelke, & 38. Barrett, Rick 40. Jeff Buchanan, 41. .F While Wisconsin strengths in Main has recognized Street Entrepreneurship, A serious concern for Wisconsin-based startups is a lack of venture capital is a lack of venture concern for Wisconsin-basedA serious startups M K EM ILWAUKEE TLANTIC C Y 7. S 7. Technologies 5.Capital. Lack of Access to it has weaknesses overall Startup Activity, in according to the Kauffmann is being made in building an Foundation indices. However, progress entrepreneurial ecosystem to better support Wisconsin Wisconsin’s startups. best example hub is Madison, of an entrepreneurial a city that has built a innovation and for technological national reputation as a center entrepreneurship. wisconsin-us-tech-skills-gap [http://perma.cc/QX99-NWTL]. entrepreneurial startup activity in Wisconsin,entrepreneurial startup activity in there are initiatives that are having an impact outside of Madison, Wisconsin, in southeast and across the and state. Some and organizations that are working of these initiatives to build there have recently been increasing investments,there have recently which will work to dramatically support and improve activity in Wisconsin. entrepreneurial wisconsin-how-a-city-becomes-an-innovation-hub [https://perma.cc/PMP7-2H8G]. .com/publications/wtc-white-papers [https://perma.cc/M3CC-3LMM]. A 2018] Wisconsin companies over $223 million raised slightly which in 2016, is less than 1% nationally, of the $69 billion raised wisconsins-lack-of-start-ups-venture-capital-b99279993z1-261467221.html/ [https://perma.cc/8AFP- wisconsins-lack-of-start-ups-venture-capital-b99279993z1-261467221.html/ K5ES]. 22, 2017), http://www.xconomy.com/wisconsin/2017/03/22/investors-reboot-wisconsin-venture- capital-association [https://perma.cc/X3BX-FLM6]. Massachusetts,there have been improvements and New York; but here again Wisconsinin the last few years. policy papers Technology Council’s that is needed for the more for the that is needed startups. high-reward scalable high-risk, M /07/28/rockwell-automation-partners-foxconn-wisconsin-plant-technologies/519756001 [https://perma.cc/5GL5-FTZH]; Issie Lapowsky, Wisconsin Factory workforce in Wisconsin in workforce technology-innovation. kind of this to support 40672-mqi_22-1 Sheet No. 34 Side A 05/20/2019 14:43:36 A 05/20/2019 34 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 34 Side B 05/20/2019 14:43:36 , , 44 49 M K C Y COM . Medical and it is gBETA, [Vol. 22:1 [Vol. 51 52 It is one of It is one OLLEGES 9/21/2018 1:50 PM C 43 50 Universities, of 53 EST and BioForward. , http://inwisconsin.com Lighting Your Way to a 48 , B a.cc/Z8N9-TJGC]. ISCONSIN , http://db.nelsonmandela.org/speech W N , I , http://www.medconline.com/M7_Venture_Cap , http://www.medconline.com/M7_Venture_Cap OUNDATION The Commons, F 47 ANDELA (Sept. 12, 2016), http://news.wisc.edu/uw-madison-ranked- EDCONLINE lleges-with-highest-research-and-development-expenditures/ M , https://www.bioforward.org/ [https://perma.cc/MDS8-5579] , https://www.bioforward.org/ [https://perma.cc/MDS8-5579] , M EWS , https://www.gener8tor.com/statistics [https://perma.cc/89NG- , https://www.gener8tor.com/statistics [https://perma.cc/89NG- , https://www.startupmke.org/ [https://perma.cc/94GQ-N2F8] (last , https://www.startupmke.org/ [https://perma.cc/94GQ-N2F8] N ELSON TOR 8 ISCONSIN Gener8tor Again Named as One of Nation’s Best Startup Accelerators Gener8tor Again Named as One of Nation’s Best MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. , http://www.thecommonswi.com/ [https://perma.cc/Z7YC-CC64] (last , http://www.thecommonswi.com/ [https://perma.cc/Z7YC-CC64] Startup MKE,Startup UW-Madison Ranked 10th Best Public College by U.S. News & World UW-Madison Ranked 10th Best Public College W ADISON ) ENER 46 ILWAUKEE . M M , G IS ELETE OMMONS D , https://www.gbetaaccelerator.com [https://perma.cc/YYL2-CLSW] (last visited W . J. (June 6, 2017, 11:42 AM), https://www.bizjournals.com/milwaukee/news/2017/ C ORWARD OT OT F N US ETA OF Highest Research & Development in 2017 MEDC, (July 16, 2003), N HE O IO . B B TARTUP Funding G Start, Relocate or Grow Your Business M7 Venture Capital Fund (D 45 NIV INAL INAL , U 48. T 51. Kari Knutson, 45. 49. B 52. 44. 50. Melanie Lawder, 43. 47. S 46. 53. Nelson R. Mandela, Speech at the Launch of Mindset Network: .F As nucleating hubs of innovation, Wisconsin has excellent universities, one EM ILWAUKEE 7. S 7. visited Sept. 29, 2017). visited Sept. 29, 06/06/gener8tor-again-named-as-one-of-nations-best.html [https://perm 06/06/gener8tor-again-named-as-one-of-nations-best.html M ital_Fund.html [https://perma.cc/63B5-XKVH] (last visited Sept. 29, 2017). (last visited Sept. 29, ital_Fund.html [https://perma.cc/63B5-XKVH] [https://perma.cc/XF8L-MQ4N] (last visited Sept. 29, 2017). [https://perma.cc/XF8L-MQ4N] (last visited Sept. 29, College of Wisconsin, Marquette University and UW–Milwaukee also have very large and research and developmentgrowing programs integrated into the As Nelson Mandelaeducational experience. “[e]ducation is the most said, world.” which you can use to change the powerful weapon es/pub_view.asp?pg=item&ItemID=NMS909&txtstr=education%20is%20the%20most%20powerful [https://perma.cc/U858-ELJ4]. Report Sept. 29, 2017). Sept. 29, visited Sept. 29, 2017). visited Sept. 29, improve ecosystem the entrepreneurial Gener8tor, include: 10th-best-public-college-by-u-s-news-world-report [https://perma.cc/M5HU-VPWH]. ESFN] (last visited Sept. 29, ESFN] (last visited Sept. 29, 2017). 64 WEDC, in Madison, offices that has is a startup accelerator Gener8tor Milwaukee, and Minneapolis, among recently ranked and was programs the top 16 accelerator in the United Seed Accelerator States by the project. Rankings which there are many in Wisconsin, equip students with the necessary knowledgeinnovators. To and skills to succeed in industry, and to be startup start successfully and a grow company, leader and there needs to be a visionary (last visited Sept. 29, 2017). 2017). (last visited Sept. 29, only four such programs in that ranking that do not have a presence in not have a presence that do such programsonly four that ranking in California. of which is Universityof Wisconsin–Madison (UW–Madison). U.S. News & World ranked UW–Madison Report Public College, the tenth Best also ranked third highest for research and developmentalso ranked third spending. [https://perma.cc/85YN-U62R] (last visited Sept. 29, 2017). http://www.bestcolleges.com/features/co Better Future 40672-mqi_22-1 Sheet No. 34 Side B 05/20/2019 14:43:36 B 05/20/2019 34 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 35 Side A 05/20/2019 14:43:36 , 59 In 65 58 ISCONSIN and that W 54 there are a 9/21/2018 1:50 PM TAR 62 S Madison Region 63 56 RIGHT (November-December , B EVIEW , mentioned is a above, . R US , http://madisonregion.org/start-locate- , https://www.startupmke.org/funding/ . B , https://www.healthxventures.com/#about SHIP Accordingto the ARV . P’ , which had been dormant, which had been since the , H 55 CON ENTURES ILWAUKEE E M , http://siliconpastures.com/ [https://perma.cc/9L7M- X V , L.P., http://wsafund.com/ [https://perma.cc/RXG5- , L.P., http://wsafund.com/ [https://perma.cc/RXG5- Wisconsin Super Angel Fund) EGION UND the capital access problemWisconsin. in R F 61 EALTH TARTUP , http://www.goldenangelsinvestors.com/ [https://perma.cc/XD , http://www.goldenangelsinvestors.com/ [https://perma.cc/XD 57 ASTURES , H , S P RS 65 64 ’ NGEL ADISON A NV , https://ventureinvestors.com/ [https://perma.cc/397J-FUEY] (last I , at least 128 Wisconsincompanies early stage raised note 39. note 39. RS , M ILICON ’ ) UPER , S BrightStar; NV S How Venture Capital Works I supra supra NGELS 60 A ELETE D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT N ENTURE ISCONSIN . O OLDEN Startup Funding Guide Who We Are Wisconsin Capital Association Venture Venture Capital Id About HealthX Ventures About HealthX BrightStar Wisconsin: Job Creation through Capital Donation BrightStar Wisconsin: (D Venture Investors HealthX Ventures HealthX INAL INAL 59. 55. Buchanan, 64. V 54. Zider, Bob 60. G 62. W 63. 61. 65. 57. Buchanan, 56. 58. .F The In addition to having the right people, capital is needed to start a company. a is needed to start people, capital to having the right In addition M K EM C Y 7. S 7. addition to Angel investors and Angel networks (e.g., Silicon Pastures; Golden Angels; growing number of Wisconsin-based venture capital sources: growing number of Wisconsin-based venture capital G2-W7B7] (last visited Sept. 29, 2017). G2-W7B7] (last visited Sept. 29, consortium and corporate investors, and was recently of venture capital, angel formed to begin addressing 1998), https://hbr.org/1998/11/how-venture-capital-works [https://perma.cc/WH55-T8CM]. 1998), https://hbr.org/1998/11/how-venture-capital-works [https://perma.cc/J77B-Q7VX] (last visited Sept. 29, 2017). [https://perma.cc/J77B-Q7VX] (last visited Sept. 29, a team Wisconsin fields. the relevant in people skilled of the universities has Wisconsin. as some this talent, as long to produce of themin stay For a larger companya bolder (and with more expensive) vision, venture capital Bob Zider an essential role. often plays summarized as follows: “the the issue a company’sis to invest in venture capital] idea [of sheet and balance credibility,” it reaches a sufficient size and infrastructure until 2018] [https://perma.cc/2YB9-EBBA] (last visited Sept. 29, 2017). AVFR] (last visited Sept. 29, 2017). http://www.brightstarwi.org (last modified 2018). http://www.brightstarwi.org (last modified 4EQV] (last visited Sept. 29, 2017). 4EQV] (last visited Sept. 29, visited Sept. 29, 2017). visited Sept. 29, Economic Partnership investment and several new capital, were venture funds launched recently, Ventures. including American Family and HealthX Ventures expand/find-capital/venture-capital/ [https://perma.cc/HFU8-5PFL] (last visited Sept. 7, 2017). 7, (last visited Sept. expand/find-capital/venture-capital/ [https://perma.cc/HFU8-5PFL] recession of 2008, has been reformed, and could provide much-neededreformed, support and has been recession of 2008, capital in Wisconsin.to grow venture venture capital allows new companiesventure capital allows scale. Recently, the to grow and Wisconsin Capital Association Venture 40672-mqi_22-1 Sheet No. 35 Side A 05/20/2019 14:43:36 A 05/20/2019 35 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 35 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 9/21/2018 1:50 PM , http://4490ventures.com/ , http://amfamventures.com/ VENTURES 70 ENTURES , http://nmfutureventures.com/ V , 4490 AMILY ENTURES , https://www.ideafundvc.com/people , http://csapartners.com/ [https://perma.cc/T7AR- , http://csapartners.com/ [https://perma.cc/T7AR- V . F M While Wisconsin still ranks last for startup 71 Startups ROSSE , A 75 , http://www.37celsiuscapital.com [https://perma.cc/8JJU- C , http://www.bairdcapital.com/sector-expertise/baird- , http://www.bairdcapital.com/sector-expertise/baird- UTURE , http://www.capitalmidwest.com/ [https://perma.cc/VHM5- , http://www.capitalmidwest.com/ [https://perma.cc/VHM5- 72 69 67 A ARTNERS . §§ 16.295, 20.505(1)(fm), 25.17(72) (2013–2014). . F L Act 41 created Wisconsin Statute section 16.295, Act 41 created Wisconsin Statute section UT TAT 77 APITAL ARTNERS IDWEST C . M . S P 68 , CSA P M IS W UND OF , http://www.cmfgventures.com/ [https://perma.cc/YB4Y-6YUX] (last 66 F MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. 73 , N AIRD note 40. for later stage companies. which provides a source of startup capital via creation of which provides a source of startup ) DEA , B APITAL 74 76 APITAL C , I , GCI, http://www.gcionline.com/about/ [https://perma.cc/2ZCL-FTHD] (last , GCI, http://www.gcionline.com/about/ [https://perma.cc/2ZCL-FTHD] supra ENTURES , C ELETE , D OT OT N CELSIUS O Funding Innovation About Us Future Ventures Sector Focus Fueling Entrepreneurs’ Dreams 4490 Ventures Forward Funding Funding Overview (D Northwestern Mutual Investors Future 4490 Ventures 4490 37Celsius, Baird Venture Partners Baird Venture CMFG Ventures Capital Midwest Funds American Family Ventures Gary Comer Inc. (GCI) CSA Partners Our Partners INAL INAL 69. 70. 67. 74. 37 71. 66. 73. 72. 68. CMFG V 75. 76. Wisconsin Act 41, W 77. .F F.Wisconsin Wisconsin in Law - Legislation to Encourage Investment Legislation to help foster startup formation in Wisconsin includes the 2013 Finally, Wisconsin’s nationally recognized accelerator program,recognized accelerator Wisconsin’s Gener8tor, nationally Finally, EM 7. S 7. visited Sept. 29, 2017). visited Sept. 29, visited Sept. 29, 2017). visited Sept. 29, [https://perma.cc/R7S8-4AH3] (last visited Sept. 29, 2017). 29, [https://perma.cc/R7S8-4AH3] (last visited Sept. the Badger Fund-of-Funds. HZET] (last visited Sept. 29, 2017). [https://perma.cc/LV82-B6SE ] (last visited Oct. 2, 2017); Badger Fund of Funds (Venture Capital)[https://perma.cc/LV82-B6SE ] (last visited Oct. 2, 2017); Badger Fund of Funds (Venture Wisconsin Act 41, activity, this will hopefully change as an increasing number of venture capital sources emerge for Wisconsin and startups, as the state itself enacts legislation investments. to further encourage startup [https://perma.cc/Q645-Y2SH] (last visited Sept. 29, 2017). 29, [https://perma.cc/Q645-Y2SH] (last visited Sept. FLLQ] (last visited Sept. 29, 2017). 2017). FLLQ] (last visited Sept. 29, [https://perma.cc/GSM2-X49T] (last visited Sept. 29, 2017). [https://perma.cc/GSM2-X49T] (last visited Sept. 29, 66 has already invested in fifty-four companieshas already invested that have gone on to secure over $120 million in follow-on capital. capital-sectors.aspx [https://perma.cc/2M57-CKTV] (last visited Sept. 29, 2017). capital-sectors.aspx [https://perma.cc/2M57-CKTV] (last visited Sept. 29, V225] (last modified 2017). V225] (last modified 40672-mqi_22-1 Sheet No. 35 Side B 05/20/2019 14:43:36 B 05/20/2019 35 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 36 Side A 05/20/2019 14:43:36 , , 83 67 85 ., Businesses 9/21/2018 1:50 PM 4 (2015), 84 ORP . C According to the EV OUNCIL 78 C . D CON E It is the experienced private It is the experienced ECHNOLOGY 81 T ISCONSIN , W ISCONSIN note 78. , W . § 16.295 (2015–2016). . § 16.295 supra The statute that was enacted by Act 255, The statute that , TAT 82 . S IS OUNCIL . C Winnebago Seed Fund, Part of Badger Fund of Funds, Raises $11M Winnebago Seed Fund, Part of Badger Fund ) ECH WI’s Badger Fund of Funds Unlocks State Money, Eyes First Recipients WI’s Badger Fund of Funds Unlocks State T This is therefore a public-private partnership, where the state where the state partnership, a public-private This is therefore ELETE . § 16.295. . § 238.15 (2013–2014). . § 238.15 . § 238.15 (2015–2016). D 80 CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT TAT TAT TAT N ISCONSIN . S . S . S O Qualified New Business Venture Program Investing in Next-Generation Jobs (Mar. 3, 2015), http://www.xconomy.com/wisconsin/2015/03/03/wis-badger-fund-of- (June 2, 2017), http://www.xconomy.com/wisconsin/2017/06/02/winnebago-seed-fund- IS IS IS (D The state funds are leveraged since they are to be matched since they are funds are leveraged The state by 2:1 79 INAL INAL 78. W 84. W 85. 82. W 79. Jeff Engel, 80. 83. W 81. Jeff Buchanan, .F One final piece of legislation that Wisconsin has passed to nurture startup Other Wisconsin legislation that was created to foster Wisconsin’sOther Wisconsin startup legislation that was created M K EM CONOMY CONOMY C Y 7. S 7. X activity is Act 52, which was passed to create the state counterpart to the federal AnnualReports.aspx [https://perma.cc/7E2F-VSRK] (last visited Oct 2, 2017). AnnualReports.aspx [https://perma.cc/7E2F-VSRK] [https://perma.cc/77FM-MJ8L].funds-unlocks-state-money-eyes-first-recipients investment includes the investor tax credits that were created by Act 255 in that were created by Act investment the investor tax credits includes in 2013. 2004 and revised statute, the state provides $25 million to the Fund-of-Funds, which$25 million state provides statute, the Fund-of-Funds, the is to be to managed investment by an manager of their own $300,000 that provides funds. private funds. part-of-badger-fund-of-funds-raises-11m/ [https://perma.cc/9RWX-NPLB]. Wisconsin Stage Business called the “Early Statute Section 238.15, is Investment Program” contains within it the “angel investor tax credit.” and Annual and Quarterly Reports, https://doa.wi.gov/Pages/StateFinances/VentureCapitalQuarterlyand to “establish and administer a program for the investment of moneys of investment in venture the for administer and to “establish a program in this state.” businesses located that invest in capital funds This tax credit encourages investment in Wisconsin startups and applies only to investments in Wisconsin-based companies with less than 100 employees capital. than $10 millionless in private equity and that have raised 2018] http://wisconsintechnologycouncil.com/wp-content/uploads/2015/09/2015WhitePapers-Web.pdf [https://perma.cc/U9FW-5HAF]; W of Wisconsin (to date) the investors, including invests along-side private Winnebago Fund ($4 million), Seed of La Crosse ($8.1 million) the Idea Fund Partners ($6 million).and Rock River Capital http://inwisconsin.com/entrepreneurs/assistance/qualified-new-business-venture/ 2017). [https://perma.cc/Y9GC-VYSR] (last visited Oct. 2, X investors who are co-investing and making the investment co-investing and making investors who are rather decisions, government. than the that meet these and other criteria specified in the statute are said to have in the that meet specified these and other criteria eligible are then Venture (“QNBV”) certification, and Qualified New Business investment. is 25%for the angel investor tax credit, which of the equity 40672-mqi_22-1 Sheet No. 36 Side A 05/20/2019 14:43:36 A 05/20/2019 36 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 36 Side B 05/20/2019 14:43:36 , M K C Y . (June Panel: ORP Any such Any such [Vol. 22:1 [Vol. . C 9/21/2018 1:50 PM EV 87 (Jan. 14, 2012), . D This sector is IMES 92 CON E Generally Accepted Auditing N.Y. T N.Y. While crowdfunding is , , as defined by federal , as defined by federal 90 HE ORG , T ISCONSIN Health Care in Wisconsin, Part 1: , W ndards/AuditAttest/DownloadableDocuments/AU- accredited investor However, any single investor However, any single cannot invest more , as defined by state law. , as defined by state 88 MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ) Madison’s HealthTech Cluster: The Rise of Epic and Everybody Else are the healthcare and HealthTech sectors. are . § 551.202(26)(c)(1)(b) (2015–16); AICPA. ELETE . § 551.202(26)(d). 91 Digitizing Health Records, Before It Was Cool D TAT which crowdfunding. enabled of the selling is Crowdfunding OT OT , http://www.epic.com/ [https://perma.cc/MH8C-45JC] (last visited Sept. 29, 2017); , http://www.epic.com/ [https://perma.cc/MH8C-45JC] TAT . S N 86 IS qualified investor . S O PIC Jeff Engel, IS (Aug. 17, 2015), http://www.xconomy.com/wisconsin/2015/08/17/madisons-healthtech- (D , https://www.aicpa.org/Research/Sta or a INAL INAL 88. W 91. E 89. 17 C.F.R. § 230.501(a) (2017). 90. W 92. 87. Crowdfunding, 80 Fed. Reg. 71, 387 (Nov. 16, 2015) (to be codified in scattered sections 86. Our Business Startups Act, Pub. Jumpstart L. No. 112-106, 126 Stat. 306 (2012) (codified .F 89 Wisconsin’s entrepreneurial ecosystem is showing signs of growth on other is showing Wisconsin’s ecosystem entrepreneurial EM CONOMY G.HealthTech Future Growth Opportunities – Spotlight on Healthcare and 7. S 7. particularly promising, to the tremendous in part due success of Epic Systems (Madison, WI), fronts, beyond the traditional manufacturing and advanced manufacturing technology-based startup growth that is sectors. One high-growth area of X cluster-epic-everybody-else/# [https://perma.cc/4BG3-7M5Y]; Business Ecosystem Helps Foster Health Technology Success 8, 2016), http://inwisconsin.com/entrepreneurs/launch-blog/health-care-in-wisconsin-part-1-business- ecosystem-helps-foster-health-technology-success [https://perma.cc/2QBL-3382]; Brian Lee, as amended in scattered sections of 15 U.S.C.). as amended in scattered sections of 15 C.F.R.). of 17 Standards unregistered private securities on the internet, subject to regulatory restrictions. regulatory subject to on the internet, private securities unregistered The Securities and Exchange Commission of crowdfunding. of the process on and oversight guidance (“SEC”), a federal agency, provides 00150.pdf [https://perma.cc/WPQ5-43GD] (last visited, Apr. 14, 2018). http://www.nytimes.com/2012/01/15/business/epic-systems-digitizing-health-records-before-it-was- cool.html?mcubz=0 [https://perma.cc/F62G-SR9T]. Milt Freudenheim, transactions are typically subject to both federal and state laws. The relevant and state laws. federal to both are typically subject transactions Wisconsin from statute resulting allows to $1 to issue up a startup Act 52, million in a twelve-month in securities period via the crowdfunding exemption, and $2 million accounting principles the startup does a generally accepted if audit. (“GAAP”) compliant JOBSAct, 68 an interesting source of startup capital for Wisconsinan interesting source companies, the bigger impactto come our startup ecosystem on from is likely legislation that fosters larger and more traditional equity investments, like Act 41 and Act 255. Meanwhile, it is clear that state government it can to encourage is doing what investment in Wisconsin whether it be from startups, individuals (Act 52), or 255). from (Acts 41 and angel and venture capital investors than $10,000, unless they are an than $10,000, unless law, 40672-mqi_22-1 Sheet No. 36 Side B 05/20/2019 14:43:36 B 05/20/2019 36 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 37 Side A 05/20/2019 14:43:36 , 69 9/21/2018 1:50 PM NDUSTRY IN , CNBC (Jan. 17, I which broadly broadly which (May 13, 2017), 93 ECH T (May 19, 2015), Report: Epic, Cerner and EALTH NFORMATICS I 95 H TARTUPS S HE T ADISON EALTHCARE , M , H which sponsors the healthcare innovation the healthcare which sponsors ISCONSIN With the success of Wisconsin-based Epic note 89; Heather Landi, 94 W 96 newsem/ehr/report-epic-cerner-and-athenhealth-lead-small- , www.bioforward.org [https://perma.cc/8AHX-5HNZ] (last , www.bioforward.org [https://perma.cc/8AHX-5HNZ] supra , www.bridgetocures.com (last [https://perma.cc/VV6D-VPM3] PPORTUNITIES FOR O ISCONSIN URES Tech Set to Transform $3 Trillion Health Care Industry W C ) note 89; Lee, Bridge to Cures Eyes More Funds, Bigger Programs to Nurture Startups Bridge to Cures Eyes More Funds, Bigger ELETE D supra ORWARD CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT F N RIDGES TO IO O (Dec. 24, 2015), http://www.xconomy.com/wisconsin/2015/12/24/bridge-to-cures-eyes- (D 97 HALLENGES AND INAL INAL 96. Gemma Acton, 95. Jeff Engel, 97. Engel, 93. B 94. B .F A.Innovation Wisconsin’s Rich History of Healthcare and HealthTech Wisconsin’s innovation in the food and beverage industry sector history of Why is HealthTech the sector to watch? Many believe it is well-positioned well-positioned Whysector to watch? Many is HealthTech the believe it is M K EM CONOMY III. C C Y 7. S 7. 2017 11:41 AM), https://www.cnbc.com/2017/01/17/tech-set-to-transform-3-trillion-health-care- 2017). industry.html [https://perma.cc/U8XF-SEAD] (last visited Sep 29, more-funds-bigger-programs-to-nurture-startups/ [https://perma.cc/6ZJJ-HMT4].more-funds-bigger-programs-to-nurture-startups/ visited Oct. 01, 2017). visited Oct. 01, X as well as in manufacturing manufacturing)now advanced (and is impressive, healthcare and HealthTech (e.g., digital but it is also strong in the areas of health). Prominent companies in this sector, now, include Epic, Aurora, Ascension, Froedtert/MCW, Covance, Promega, GE Healthcare (once in, Wisconsin),headquartered in, but not started TomoTherapy, Roche NimbleGen, Dohmen Cambridge Life Sciences, Major Labs (now Alchemy), http://www.madisonstartups.com/panel-wi-ahead-in-health-tech/ [https://perma.cc/B8W5-8NUX].http://www.madisonstartups.com/panel-wi-ahead-in-health-tech/ hossmall-hospital-ehr-adoption [https://perma.cc/F79T-PFAM]. https://www.healthcare-informatics.com/ to transform a $3 trillion healthcare industry, and it may reshape how healthcare reshape may it and industry, a $3 trillion healthcare to transform Unitedis delivered in the States. visited Oct. 01, 2017). visited Oct. 01, WI Ahead in Health Tech, Startup and Tech News supported by the industry trade organization BioForward, organization trade the industry by supported 2018] Athenahealth Lead Small Hospital EHR Adoption pitch event, that provides business, regulatory, and intellectual property and intellectual business, regulatory, that provides pitch event, mentoring while also connecting and HealthTech innovators, to healthcare funds. seed and venture capital them to sources of supports the biohealth industry, including digital health, medical devices and medical devices digital health, including the biohealth industry, supports biotech, and biopharmaceuticals.diagnostics, resource A recently developed Wisconsinin southeast and HealthTech healthcare to further assist Cures, is Bridge to entrepreneurs Systems captured 26% (which hospital marketof the U.S. for EMRs, Electronic Medicalnext generation of HealthTech the behind us as a state, Records) innovators in Wisconsin of HealthTech are working on the next generation startups. 40672-mqi_22-1 Sheet No. 37 Side A 05/20/2019 14:43:36 A 05/20/2019 37 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 37 Side B 05/20/2019 14:43:36 , 98 M K , 3 100 C Y . (May EV . R Ralph M. M. Ralph [Vol. 22:1 [Vol. US 99 9/21/2018 1:50 PM . B In addition to (May 29, 2008), 101 ARV . Y ’ , H [https://perma.cc/P4CM- OC S 286, abstract (2003), vitamins ISTORICAL . H As a result, the Wisconsin Alumni IS NESTHESIOLOGY 103 , W (2015), http://jdc.jefferson.edu/gibbonsocietyprofiles/43 (2015), http://jdc.jefferson.edu/gibbonsocietyprofiles/43 Frederic E. Mohs, M.D. (1910-2002): Physician and Innovator Frederic E. Mohs, M.D. (1910-2002): Physician , 98 A After further experimentsled to on rats, this Why Innovation Why So in Is Health Care Hard ROFILES History of the Discovery of Vitamin D and its Active Metabolites 102 P Ralph M. Waters, M.D., and Professionalism in Anesthesiology: A Ralph M. Waters, M.D., and Professionalism MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ) 1, 2 (Jan. 2014), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3899558 ELETE ISTORICAL , D H OT OT N . EPORTS O Vitamin-Finding Feces Bucket Id R (D URGERY OCIETY S Y S INAL INAL KE 101. 100. Donald Caton, 98. E. Herzlinger, Regina 103. 99. et al., Nicholas A. Ross, 102. Hector F DeLuca, .F T OF Wisconsin companies but they face innovation, are leaders in healthcare Examples of healthcare innovators include many biomedical researchers at manyExamples biomedical innovators include of healthcare researchers ’ EM EP IBBON ONE Access HealthNet, and SmartChoice and HealthNet, Access MRI. 7. S 7. challenges. challenges. innovation, face healthcare that the difficulties analyzed Herzlinger funding limitations,including more, and restrictions, accountability policy but in spite of these challenges, Wisconsin of these challenges, but in spite and companies innovators have many achievements great healthcare and significantly to which contributed below. technological advancement. are reviewed These [https://perma.cc/KT52-6RWU]. B Celebration of 75 Years the University of Wisconsin–Madison, Mohs. such as Frederic E. Mohs, while a medical student at UW–Madison, the micrographic surgical developed used to remove skin cancer lesions. later widely technique that was D Research Foundation (“WARF”)in 1925 to commercialize was created http://anesthesiology.pubs.asahq.org/article.aspx?articleid=1943820 http://anesthesiology.pubs.asahq.org/article.aspx?articleid=1943820 PWTM]. [https://perma.cc/S6UE-8Q9G]. Additionally, researchers Hart and Humphrey, along with E.V. McCollum Hart and Humphrey,Additionally, researchers along and did animalHarry Steenbock, feeding experiments to discover essential nutrients present in corn but deficient other grains, and after years of in the nutrients as research, characterized these unknown 70 G Waters, to UW–Madison recruited training in 1927, established an anesthesia program, which improved the world. anesthesia practice throughout 2006), https://hbr.org/2006/05/why-innovation-in-health-care-is-so-hard [https://perma.cc/3ZTF- 2006), https://hbr.org/2006/05/why-innovation-in-health-care-is-so-hard 8Q4C]. https://www.wisconsinhistory.org/Records/Article/CS2635 [https://perma.cc/M3X5-7UUP]. participating in the pioneering work that led to the discovery of participating in the pioneering work vitamins, Harry levels between sunlight and calcium Steenbock also discovered the connection levels when kept lacked proper calcium in blood, based on studies of goats that indoors in the winter. Steenbock’s discovery and patenting of the process for using UV light to the process for of Steenbock’s discovery and patenting activate vitamin D—aused to treat most process subsequently of the milk sold that contributed to the eliminationin the United States, and a discovery of rickets as a major medical problem. 40672-mqi_22-1 Sheet No. 37 Side B 05/20/2019 14:43:36 B 05/20/2019 37 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 38 Side A 05/20/2019 14:43:36 At At 71 VER I LUMNI 104 AC A , M The drug , 122 (Anne 106 9/21/2018 1:50 PM ISCONSIN ISTORY H , W ICTORIAL : A P ISCONSIN W NIVERSITY OF U HE How dead cattle led to the discovery of Warfarin , T UW–Madison Foundations Assets to More than $6 Grow Billion (June 27, 2013), https://www.warf.org/news-media/news/in-the-news/how- ) OVE H ELETE D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING 107 OT OT N This vision grewThis vision expectations, withfar beyond initial WARF now RTHUR O OUNDATION (Mar. 20, 2015), http://www.maciverinstitute.com/2015/03/uw-madison-foundations- F (D 105 INAL INAL 106. Nick Novak, 107. Thomas Meek, 104. A 105. Id. .F M K EM ESEARCH C Y NSTITUTE 7. S 7. Biebel 1991). being one of the country’s premier university technology transfer and premier of the country’s being one technology university commercialization innovation. research and university supporting foundations In 2014, WARF gave UW–Madison a $58 million 17% grant, of its $342 millionand related activities. revenue, to support research annual grow-assets-to-more-than-6-billion [https://perma.cc/4BEM-P89N]. the time, WARFthe time, to patent and being created concept, was a pioneering commercialize money research to generate faculty to support more faculty research. dead-cattle-led-to-the-discovery-of-warfarin.cmsx [https://perma.cc/8TFF-CYBL]. Warfarin (derived fromdiscovered at UW–Madison dicoumarol), by Dr. Karl was named the door to a new class of blood anticoagulants, Link and opening after WARF. I R Steenbock’s invention of this method of this invention Steenbock’s D in milk. vitamin activating for 2018] 40672-mqi_22-1 Sheet No. 38 Side A 05/20/2019 14:43:36 A 05/20/2019 38 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 38 Side B 05/20/2019 14:43:36 M K N.Y. N.Y. C Y HE , T [Vol. 22:1 [Vol. 9/21/2018 1:50 PM Ernst and Young, LLC - August 2015. Data 2015. August - LLC Young, and Ernst More recently, Dr. Howard Jacobs, when he was recently, Dr. Howard More 108 MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. W. Dudley Johnson, Heart Bypass Surgery Pioneer, Dies at 86 ) ELETE Reproduced with permission. While a majority of bioscience bioscience of majority a While permission. with Reproduced D Bioscience and Healthcare IT (HealthTech) activity in activity top 5 (HealthTech) Healthcare IT and Bioscience OT OT N O (D Fig. 3. 3. Fig. INAL INAL 108. Sam Roberts, .F Medical innovation in Wisconsin certainly not limited was to Madison. Wisconsin counties, based on revenue. Size of bubble corresponds to corresponds bubble of Size revenue. on based counties, Wisconsin in Waukesha and Dane is county, Madison ofnumber employees. relative Wisconsin’s Energizing Source: Bioscience: Milwaukee. is a of suburb by completed Economy; Year: 2013. Year: and Milwaukee the is in HealthTech of majority a in Madison, is Waukesha areas. EM 7. S 7. Milwaukee artery physician Dr. Dudley Johnson pioneered the first coronary bypass surgery in the 1960s, by removing a vein from the leg and implanting to the coronary artery, and thereby helping to make Milwaukee a leader in also the first to do the cardiovascular medicine and surgery. Dr. Johnson was multiple bypass surgery. 72 40672-mqi_22-1 Sheet No. 38 Side B 05/20/2019 14:43:36 B 05/20/2019 38 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 39 Side A 05/20/2019 14:43:36 : 73 EART H (Dec. 18, 9/21/2018 1:50 PM TATE OF THE ENTINEL , S J. S 113 (The Society of Thoracic 113 (The Society of TEPHENSON l [https://perma.cc/ZWT5-9F2D]; ILWAUKEE S , M URGERY S ARRY EART H (Jun. 06, 2016), https://www.aurorahealthcare.org/ (Jun. 06, 2016), https://www.aurorahealthcare.org/ ., [https://perma.cc/WFJ2-69UJ] (last visited Oct. 2, (Apr. 5, 2017), https://www.aurorahealthcare.org/me ARE ONF A Baffling Illness C Additionally, at Aurora St. Luke’s Medical ARE C s/health/111641209.htm C and now Promega has over 2000 products that 111 EART AND H ORLD EALTH 113 H EALTH . W H OUR . J. (May 25, 2008), http://host.madison.com/business/madison-bio- ED Y Madison Bio-Giant Promega Helped put Madison on the World’s (Apr. 20, 2016), https://www.washingtonpost.com/opinions/a-boys- T for a undiagnosed boy with an young and life-threatening M URORA . S A Boy’s Mysterious Illness, a Bold Gamble and a Breakthrough in Genetic A Boy’s Mysterious Illness, a Bold Gamble and ) OST IS URORA 109 , A . P , A ELETE , W UIDE TO D Dr. Kress commented that “[w]e’re. . reduce future able to . G ASH CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING RECISION OT OT N W , P 110 O 112 Aurora Health Care Heart Experts Among First in Nation to Implant New Heart Valve to Heart Valve to Implant New in Nation Among First Aurora Health Care Heart Experts Aurora St. of People to Improve Luke’s Medical Lives Hybrid Pioneers Center Procedure HE (D , T INAL INAL (Oct. 30, 2016), https://www.nytimes.com/2016/10/31/health/dudley-johnson-dead-coronary- RACTICAL 111. Id. 112. 113. Judy Newman, 109. Susan Okie, country are looking at.” country are looking 110. .F P Wisconsin played an important has also role in the early days of Innovation has also occurred at hospital institutions like Aurora. occurred at hospital institutions like Innovation has also Dr. Jasbir M K EM IMES HE C Y 7. S 7. biotechnology, with companies in Madison founded like Promega, in 1978 by Bill Linton. Promega enzymes, restriction provided the primary tools needed to do genetic cloning work, Surgeons, 1999), https://www.ctsnet.org/book/soth/chapt08_rev.pdf [https://perma.cc/P6VA-JGBS]. with Atrial Fibrillation Treat Aortic Stenosis media-center/news-releases/aurora-st-lukes-medical-center-pioneers-hybrid-procedure-to-improve- lives-afib-patients [https://perma.cc/PJ7V-Q97R]. Biotechnology Stage dia-center/news-releases/aurora-health-care-heart-experts-among-first-in-nation-to-implant-new- dia-center/news-releases/aurora-health-care-heart-experts-among-first-in-nation-to-implant-new- heart-valve [https://perma.cc/FJK7-BEAD]. giant-promega-helped-put-madison-on-the-world/article_4589f664-3abe-58f9-9a7e- 4904445045d2.html [https://perma.cc/7P8K-GSPA]. Medicine Center, Drs. O’Hair and Bajwa implantedCenter, Drs. O’Hair the new Medtronic CoreValve Evolut Aurora St. 2017, makingthe FDA in PRO, by a new valve approved in Wisconsin,third hospital in the nation, and first to apply this the Luke’s new valve. instances of arrhythmias [i]t’s a model other health care systems across the instances of arrhythmias [i]t’s a model other health care systemsacross T mysterious-illness-a-bold-gamble-and-a-breakthrough-in-genetic-medicine/2016/04/20/13f20b16- e638-11e5-bc08-3e03a5b41910_story.html?utm_term=.d7069c5bab87 [https://perma.cc/TF5R-KTe638-11e5-bc08-3e03a5b41910_story.html?utm_term=.d7069c5bab87 LD]. Mark Johnson & Kathleen Gallagher, T director of the Medical Wisconsin’s of College of director Genetics Molecular Human and targeted a whole genome the first to use Center, was to guide sequencing treatment strategy, 2018] inflammatory disease. This successful gene-based diagnosis and treatment diagnosis successful gene-based disease. This inflammatory a milestonerepresents precision medicine, in the era of using genomic makeup. information to target treatments on a person’s genetic based Sra, medical director of Aurora Healthcare’s AtrialAblation Fibrillation Surgery at Aurora Kress, the chief of Cardiothoracic Center, and Dr. David St. to treat atrial technique Luke’s Medical ablation Center pioneered a new hybrid fibrillation. Howard Jacob 2010), http://archive.jsonline.com/new 2017). bypass.html?mcubz=0 [https://perma.cc/L9KC-NLA8]; L bypass.html?mcubz=0 [https://perma.cc/L9KC-NLA8]; 40672-mqi_22-1 Sheet No. 39 Side A 05/20/2019 14:43:36 A 05/20/2019 39 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 39 Side B 05/20/2019 14:43:36 , M K 115 C Y These 120 [Vol. 22:1 [Vol. The most The most 9/21/2018 1:50 PM 114 BioForward is with a net worth 119 118 , https://www.bioforward.org/strength- Forbes’ 2016 List of America’s Richest Self-Made Forbes’ 2016 List of America’s Richest Self-Made IOFORWARD Her way: Epic Systems CEO Judy Faulkner Talks Her way: Epic Systems CEO Judy Faulkner Talks giving it the largest marketgiving it of any share , B 116 Wisconsin (Jan. 11, 2016), http://archive.jsonline.com/business/ge- . J. (Apr. 12, 2017), http://host.madison.com/ct/news/local/her- . T . S IS , GE Healthcare to Move Global Headquarters from United Kingdom to United Kingdom Headquarters from Healthcare to Move Global , GE Epic Systems Soars with Transition to Electronic Health Records Epic Systems Soars with Transition to Electronic MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. (Jan. 24, 2016), http://archive.jsonline.com/business/epic-systems-soars- ENTINEL note 89. , W ) J. S ELETE supra and its founder Judith Faulkner was ranked as the third Judith Faulkner was ranked as and its founder D ENTINEL (June 1, 2016), https://www.forbes.com/sites/forbespr/2016/06/01/forbes-2016-list- (June 1, 2016), https://www.forbes.com/sites/forbespr/2016/06/01/forbes-2016-list- OT OT N . 117 J. S O Id 2015 Wisconsin Bioscience Report 2015 ILWAUKEE (D ORBES , M , F INAL INAL 118. Forbes Corporate Communications, 116. Engel, 117. Guy Boulton, 120. 119. Thomas Content 114. 115. Ferral & Erik Lorenzsonn, Katelyn .F While Madison-based Epic Systems may be the largest and most prominent B. Entrepreneurial Ecosystem in Southeast HealthTech Startups and the EM ILWAUKEE 7. S 7. Women with-transition-to-electronic-health-records-b99642837z1-366328781.html [https://perma.cc/B3F8- with-transition-to-electronic-health-records-b99642837z1-366328781.html VPH5]. M healthcare-to-move-global-headquarters-from-united-kingdom-to-chicago-b99649839z1- 364927371.html [https://perma.cc/J8LK-M878]. wisconsin-biohealth/ [https://perma.cc/DAX6-983W]. of-americas-richest-self-made-women/#768320c51747 [https://perma.cc/89ZZ-EN7J]. Chicago the trade organization representing the healthcare (e.g., medical and devices the the trade organization representing (e.g., digital health) industries for diagnostics), biotechnology and HealthTech Wisconsin, and in 2015 BioForward commissioned & Ernst to do Young analysis of the economic impact of these industries in the state. it sells in thirteen countries. countries. in thirteen it sells of has the industry history This long earned serving Promega of biotechnology.” the “granddaddy the title as way-epic-systems-ceo-judy-faulkner-talks-about-trusting/article_7fafd560-d5fd-5a7f-8ef8- 59d6bd4cf452.html [https://perma.cc/GP8D-A3LA]. EMR company. over $1.8 billion in sales and In 2015, Epic had 9500 employees, industries produce $27 billion in economic impact (2013), while directly 74 record) systems the EMREpic developed in 26% used medical (electronic of in the Unitedall hospitals States, of $2.4 billion. of $2.4 about Trusting Her Vision wealthiest self-made woman in the United States in 2016, prominent HealthTech company with in Wisconsin roots Systems, is Epic a UW–Madison by Judith Faulkner, started in computer science graduate. HealthTech in Wisconsin,it is certainly in the company of other HealthTech Healthcare, companies, many southeast Wisconsin. of which are located in GE a pioneer in imaginganalytics technology, is located in and associated Waukesha there). (and previously had been headquartered 40672-mqi_22-1 Sheet No. 39 Side B 05/20/2019 14:43:36 B 05/20/2019 39 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 40 Side A 05/20/2019 14:43:36 , 125 75 The 121 DVISORS For that A 122 9/21/2018 1:50 PM ). APITAL C Fig. 3 Fig. NDERSON founded EMSystems A 124 AYNE , K , http://www.spauldingclinical.com/index.php/ecg- Another southeast Wisconsin HealthTech which is a group that supports HealthTech which is a group that supports HealthTech , http://www.xconomy.com/author/anunemaker/ [https:// , http://www.xconomy.com/author/anunemaker/ LINICAL 127 C 129 CONOMY Previously, Nunemaker note 120. , https://dynamiscorp.com/about [https://perma.cc/AA8Z-ZRXT] (last , X PAULDING , www.healthtechmke.com [https://perma.cc/9MP7-9DJS]. , www.healthtechmke.com , S 123 ) supra , ECH 5, http://www.srhwebdev.com/wp-content/uploads/2016/02/BFOR-0002_EY_ YNAMIS new company, Dynamis, produces software facilitates that T ELETE D t, D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING 126 OT OT N . . at 10. . at CONOMY EALTH O Energizing Wisconsin’s Economy 2015 Wisconsin Bioscience Economic Development Energizing Wisconsin’s Economy 2015 Wisconsin Intermedix Corp Acquires EMSystems, LLC Abou Another serial HealthTech entrepreneur in Milwaukee is Jay Mason, Jay entrepreneur in Milwaukee is HealthTech Another serial ECG Solution Andy Nunemaker Id Id (D IOFORWARD 128 B INAL INAL 124. 125. 122. 123. 129. H 128. 121. 126. X 127. .F Southeast Wisconsin number has a large and growing of new HealthTech M K EM C Y 7. S 7. White_Paper_W0.pdf [https://perma.cc/QW2V-TUZK]. solution [https://perma.cc/2W9G-EWE5]2016). (last modified Report, perma.cc/H99H-VQ4M] (last visited Oct. 2, 2017). reason, this article will provide a deeper analysis of the HealthTech industry in industry of the HealthTech a deeper analysis article will provide reason, this southeast Wisconsin. companies, Wisconsin founded by HealthTech (summarized entrepreneurs in Milwaukee’sTable 2). One of most prominent entrepreneurs is HealthTech Andy Nunemaker. communication insurance brokers and customers between healthcare (e.g., employers, and their human resource administrators), to enable competitive shopping for health insurance. entrepreneurs. Mason has formed six companies, his most recent being visited Oct. 2, 2017). creating 37,000 jobs (and 70,000 total jobs, due to a multiplier due total jobs, 70,000 jobs (and 37,000 creating effect). Nunemaker’s 2018] success is Spaulding Clinical, founded by Randy Spaulding and focused on success is Spaulding Clinical, founded providing quality-based ECGs (electrocardiograms) with web-based remote along to physicians, information real-time moreto give monitoring, reliable and such as in medicalwith better access to care and information for patients, homes. http://kaynecapital.com/intermedix-corp-acquires-emsystems-llc/ [https://perma.cc/32Y4-CM4G]http://kaynecapital.com/intermedix-corp-acquires-emsystems-llc/ 2017). (last visited Oct 2, (acquired by Intermedix) Dynamis is now CEO and founder of and Corporation. EMSystems (now Intermedix) solutions for provides web-based forty-five states and in over in emergency providers and is used healthcare emergency1500 hospitals for and related applications. dispatch, reporting, report established that the largest concentration of companies largest concentration that the report established on (based is in the Madisonrevenue) County), Milwaukee (Dane and Waukesha regions, with Wisconsin southeast (Milwaukee and Waukesha) having a particular general ( in in medicalstrength and HealthTech devices founder of HealthTech MKE, 40672-mqi_22-1 Sheet No. 40 Side A 05/20/2019 14:43:36 A 05/20/2019 40 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 40 Side B 05/20/2019 14:43:36 , M K 133 C Y [Vol. 22:1 [Vol. Affordable 9/21/2018 1:50 PM X-FVW3] (last visited (July 18, 2017, 12:31 PM), (July 18, 2017, 12:31 PM), ORBES , F 3VR-XGLA]. , http://www.accesshealthnet.com/about/ , http://www.accesshealthnet.com/about/ ET N EALTH and their benefit administrators. H 131 is Cost and Access CCESS (Jan. 24, 2017), https://khn.org/news/block-grants-medicaid-faq , http://intellivisit.com [https://perma.cc/C2D Intellivisit Lands New Customers, Expects New Financing in October Intellivisit Lands New Customers, Expects New EWS MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. The For Medicaid Case Block Grants , A N ) NTELLIVISIT ELETE D , I EALTH H OT OT is focused on who should get insurance coverage and how muchis focused on who should get insurance Everything You Need to Know about Block Grants—’The Heart of GOP’s Medicaid Everything You Need to Know about Block Grants—’The N O Home About Us 132 (Sept. 2, 2015), http://www.xconomy.com/wisconsin/2015/09/02/intellivisit-lands-new- , (D Access HealthNet, founded by yet another southeast Wisconsin serial Wisconsin by yet another southeast founded Access HealthNet, AISER 130 INAL INAL 131. 132.3590 (111th): H.R. Patient Protection and Affordable Care Act, 42 U.S.C. § 18001 et seq. 133. Capital Flows, 130. , K .F A general theme for southeast Wisconsin’s HealthTech companies is to The current political debate over healthcare, as it pertains to the pertains to it over healthcare, as current political debate The EM CONOMY C. States The MajorFacing the Healthcare Challenge Industry in the United 7. S 7. https://www.forbes.com/sites/realspin/2017/07/18/the-case-for-medicaid-block- grants/#4042a37b3ddb [https://perma.cc/BKV2-QXQB]; provide software-based technology that gets informationprovide software-based in the hands of consumers, better access to healthcare typically patients, so they can receive and lowerthat is higher quality cost. Many of the tools also enable more (e.g., price, outcomes),transparency in healthcare whichenables competition by empowering consumers withinformation use that and the ability to information healthcare value. to shop for better [https://perma.cc/T6JB-THRX] (last visited Oct. 2, 2017). 2, [https://perma.cc/T6JB-THRX] (last visited Oct. (2012). Shefali Luthra, Plans Intellivisit, whichIntellivisit, informationdiagnostic provide to intelligence artificial uses seeking on-demand front door” for patients and a “digital to physicians doctor visits. that coverage should be. It is about insurance. This debate includes an that coverage should be. It is about important for the poor or uninsured, including discussion regarding coverage those on Medicaid. has emerged The latter debate since there is discussion of states being allocated limited funds in the form of block grants to cover the for their Medicaidexpense of providing healthcare coverage populations, [https://perma.cc/A6QT-34VA]. leaving states to figure out how to cover healthcare expenses for their leaving states to figure out how limitedvulnerable populations with increasingly funds (especially since there 76 customers-expects-new-financing-in-october [https://perma.cc/X X HealthTech entrepreneur, Eric Haberichter, uses the cloud to create a virtual uses the cloud to Eric Haberichter, entrepreneur, HealthTech marketplace,healthcare of has bundled thousands Access HealthNet where services fromhealthcare price and quality to secure the best various providers acting like They are effectively for healthcare consumers. (i.e., value) possible completea broker that provides and outcomes—as transparency in pricing a entities service for self-funded Oct 2, 2017); Jeff Buchanan, Care Act 40672-mqi_22-1 Sheet No. 40 Side B 05/20/2019 14:43:36 B 05/20/2019 40 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 41 Side A 05/20/2019 14:43:36 , 137 77 OUNDATION (Jan. 2016), , F 9/21/2018 1:50 PM (Oct. 7, 2015), FFICE O AMILY F OUNDATION F OUNDATION UDGET F B AISER AMILY F AMILY , K F AISER , K AISER , K ONGRESSIONAL As of 2015, government spending on (Sept. 19, 2017), https://www.kff.org/medicaid/fact- (Sept. 19, , C 135 5 Ways the Graham-Cassidy Proposal Puts Medicaid 5 Ways the Graham-Cassidy Proposal Puts 134 OUNDATION F State-level Medicaid 16% spending represents of note 129. Medicaid in Wisconsin 138 supra AMILY F ) ELETE AISER D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING , K OT OT with $539 billion spent on Medicare (administered federal by the Health Spending: Trends and Impact N The Federal Budget in 2015 O The Wisconsin Health Care Landscape 136 (D INAL INAL 134. Kaiser Family Foundation, 137. Capital Flows, 138. 135. 136. .F While important extremely coverage are these concerns about questions How healthcare in the United expensive is States? According to Kaiser, M K EM C Y 7. S 7. government) and $350 billion spent on Medicaid (administered by states), with (administeredMedicaidgovernment) by spent on and $350 billion seventy million people (one in five Americans).covering Medicaid currently https://www.kff.org/health-reform/fact-sheet/the-wisconsin-health-care-landscape [https://perma.cc/RX7T-KKN3]; healthcare (Medicaid and Medicaid) 24% represented of all mandatory federal spending, that mustmakers, by policy be addressed it misses the most important point problems—which all of these that underlies spending in the is that healthcare 20% (approaching United States is excessive of GDP) and must be contained somehow, while not sacrificing quality of, or access to, care. If healthcare costs then a tipping point willare not contained, someday be reached whereis there not enough money but not limited to pay for care for anyone, including to Medicaid populations. The cost problem the focus of in healthcare is therefore the remainderthis article, with of emphasis on how HealthTech can help address the problem, while quality and access to care is ensuring high maintained. percent of GDP have risen fromhealth expenditures per capita as a 5.2% in 1960 to 17.9% Furthermore, these numbers2010 and continue to rise. in are developed country (e.g., UK, Germany,significantly higher than in any other Switzerland, Austria, and Canada). In 2015, Wisconsin’s of Medicaid share spending was $8 billion, which provides support for 17% of Wisconsin’s 5.7 million people and 60% of those living in nursing homes. is concern that Medicaid that is concern This indefinitely). continue will not expansions causes many will populations to fear that vulnerable or to lose coverage begin receive lower quality healthcare. 2018] http://files.kff.org/attachment/fact-sheet-medicaid-state-WI [https://perma.cc/KQW6-RMEJ] (last 2018). visited Apr. 14, Coverage At Risk https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/graphic/51110-budget1overall.pdf [https://perma.cc/FHZ8-M3ZH]. sheet/5-ways-the-graham-cassidy-proposal-puts-medicaid-coverage-at-risk [https://perma.cc/C6ND- sheet/5-ways-the-graham-cassidy-proposal-puts-medicaid-coverage-at-risk FRZ9]. https://www.kff.org/slideshow/health-spending-trends-and-impact/ [https://perma.cc/CB8A-KN56 ] https://www.kff.org/slideshow/health-spending-trends-and-impact/ 2017). (last visited Oct. 2, 40672-mqi_22-1 Sheet No. 41 Side A 05/20/2019 14:43:36 A 05/20/2019 41 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 41 Side B 05/20/2019 14:43:36 M K HE C Y , 7 T [Vol. 22:1 [Vol. 9/21/2018 1:50 PM 49 (2016), FFICERS O UDGET only later to discover there B 142 TATE S Physician Coding and Reimbursement N OF ’ SS A L ’ , https://www.healthcare.gov/glossary/exchange/ [https:// 7, http://www.gao.gov/financial_pdfs/citizensguide2008.p AT GOV , N . there is no competitionthe actual level of the at FFICE ARE O 141 C In addition to federal and state spending on healthcare, on healthcare, spending and state to federal In addition MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. 139 Clearly, the most serious underlying problem in healthcare in healthcare Clearly, the most underlying problem serious EALTH ) , H 140 ELETE D CCOUNTABILITY OT OT N A O State Expenditure Report Exchange 2008 Financial Report of the United States Government—A Citizen’s Guide, (D J. 1, 8–15 (2007), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3096340/pdf/i1524- INAL INAL 141. 140. 139. 142. David E. Beck & David A. Margolin, .F This level individual, employer,This level on healthcare federal spending state, and One challenge in healthcare that mayOne challenge in to cost increases is a be contributing EM OVERNMENT SCHNER 7. S 7. individual and employerindividual of pocket expenses out to rise are continuing as well, both in terms employer of ($4129 in 2011) 2011) and worker ($10,944 in premiums. to insurance contributions df [https://perma.cc/DS6H-CRFL]. G perma.cc/5K7T-8GZ5] (last visited Oct. 2, 2017). perma.cc/5K7T-8GZ5] (last visited Oct. 2, in the United States is that cost is increasing at a rate reaching a level that a level that is that in the United States at a rate reaching cannot cost is increasing be sustained. Why is it that healthcare costs more in the United States than in country? Whileany other developed is not clear the answer to this question found. of muchand is the subject debate—a political solution must be lack of true competition markets. in free and transparent While there may be competition companies at the level of insurance (i.e., the health insurance markets, or “exchange”), the total state budget. state the total 5012-7-1-8.pdf [https://perma.cc/CL3T-MEV7]. O 78 https://higherlogicdownload.s3.amazonaws.com/NASBO/9d2d2db1-c943-4f1b-b750- 0fca152d64c2/UploadedImages/SER%20Archive/State%20Expenditure%20Report%20(Fiscal%202 014-2016)%20-%20S.pdf [https://perma.cc/H48N-M89R]. cannot continue forever. At the federal level, so-called mandatoryAt the federal level, forever. cannot continue federal spending from just the three major entitlement programs, Medicare, Medicaid, and Social defense, Security (ignoring interest, etc.), will exceed revenue (20% 2080. of GDP) by are large copays or unreimbursed That would be analogous shopping services. in a grocery store of products without prices because you under the are falsely impression In this scenario, there is no “reimbursed.” everything is being as long as price, to control such as hospitals, incentive for healthcare providers, the products or services are reimbursed by insurance. Thus, there are no market consumer—who employer) purchasing the healthcare is the patient (or their “buying decisions” are madeproduct or service. In other words, at the level of the decision—withouta patient seeing a physician, where knowing price—is made a healthcare services, such as: a clinical assay (e.g., blood to purchase panel), a hip surgery, an MRI, some or other procedure. Typically, neither the much these procedures or services has any idea how patient nor the physician the back reimbursed on are on the notion or hope that they simply relying cost, end by the insurance company or government, 40672-mqi_22-1 Sheet No. 41 Side B 05/20/2019 14:43:36 B 05/20/2019 41 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 42 Side A 05/20/2019 14:43:36 . , 145 79 ERVS S (June 27, (June 27, 9/21/2018 1:50 PM would mean EDICAID ORBES (June 5, 2017), J. (Apr. 10, 2016, and effectively 144 & M ttps://perma.cc/AKJ8- 146 TREET Finds, F RUNCH S C EDICARE ALL ECH M W , T HE FOR . , T TRS ,C tion-of-healthcare/ [h Consumerizationof healthcare (Apr. 05, 2011), http://www.hhnmag.com/articles/5010-the- Emergency Rooms? 143 The Law That Changed Everything-and it Isn’t the One You Think ETWORKS Out-Of-Pocket Hospital Costs Up 37%, Study Out-Of-Pocket Hospital Costs Up 37%, Study The Consumerization of Healthcare N ) ELETE EALTH D Emergency Medical and Active Labor Act Treatment H CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT Are Out-of-Pocket Medical Costs Too High? N O (D INAL INAL D. Healthcare Access Challenges for the Poor—Universal Care via 145. § 1395dd(b)(1) (2012); 42 U.S.C. Act, Emergency Medical Treatment & Labor 144. Sam Myers, 143. Kate Ashford, 146. Emily Friedman, .F What about access to the care itself, for those without insurance, or those In 1986, Congress passed legislation that permitsIn 1986, Congress passed legislation anyone to get medical M K EM OSPITALS AND C Y 7. S 7. who are the underinsured? What can they do, and what do they do? Emergency Medical Treatment & Labor Act (EMTALA) (Mar. 26, 2012 8:43 AM), https://www.cms.gov/Regulations-and-Guidance/Legislation/EMTALA/ [https://perma.cc/SL6U-ZJYH]. 10:03 PM), https://www.wsj.com/articles/are-out-of-pocket-medical-costs-too-high-1460340176 [https://perma.cc/TZ4S-DQ7Y]. EHKV]. EHKV]. providing the patient with access to moreproviding the patient information upfront, via HealthTech information. on that based maketo decisions them tools, and empowering They could shop for the best healthcarecare. values, care at the lowest price, and they could play a more active role in their which means access to the best quality 2016, 2:07 PM), https://www.forbes.com/sites/kateashford/2016/06/27/hospital-costs/#2097580aa42f [https://perma.cc/359F-KA6S]; Catherine Lane, provides a kind of universal healthcare. People without any healthcare provides a kind of universal healthcare. unemployed,insurance, perhaps because they are or their employer does not (“EMTALA”), was passed in the Reagan administration, forces where they need to they need where forces empowerment and no be of consumers (i.e., patients) with information ability to make and on that information. based To decisions marketsupport this teams hospitals have dysfunction, of administrative staff from reimbursement and seeking services medical coding to members devoted the government on average 25% hospitals spend payers. U.S. or third-party on administrative of their budget ($200 billion) costs (which coding includes and billing), which is more devote than other countries. Therefore, hospitals get reimbursed services by insurance to ensuring their significant resources companies Medicaid), (or and insurance companies are incentivized to find reasons not to reimburse, gets stuck in the middle while the patient often with for large copays needing to pay moreno input, and increasingly out of pocket or for uninsured procedures. 2018] law-that-changed-everything-and-it-isn-t-the-one-you-think. H care in emergencytheir ability to pay. This legislation, rooms, irrespective of termed the https://techcrunch.com/2017/06/05/the-consumeriza 40672-mqi_22-1 Sheet No. 42 Side A 05/20/2019 14:43:36 A 05/20/2019 42 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 42 Side B 05/20/2019 14:43:36 , M K 150 C Y Who ,” that 149 148 [Vol. 22:1 [Vol. 9/21/2018 1:50 PM a pioneer in Medical Home 151 , 8 PLOS ONE 2 (2013), Medical Home Network Emergency Medical Treatment & Labor Act Act Emergency Medical Treatment & Labor , http://www.medicalhomenetwork.org [https://perma.cc/ “How Much Will I Get Charged for This?” Patient Charges for Charges “How Much Will I Get Charged for This?” Patient for , http://www.texturehealth.com [https://perma.cc/46K6-DVD8]. [https://perma.cc/46K6-DVD8]. , http://www.texturehealth.com Assuring Hospital Emergency Care Without Crippling Competition ETWORK N MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. EALTH (July 6, 2015), http://healthaffairs.org/blog/2015/07/06/assuring-hospital- ) H OME H LOG ELETE B D note 141. EXTURE OT OT N EDICAL O supra (D FFAIRS , , which uses HealthTech Health, created by Texture A an ED cannot turn away any patient. Thus, while there is debate in the while there is debate patient. Thus, turn away any an ED cannot INAL INAL 151. M 149. Christopher Pope, 150.129. Luthra, supra note 148. Nolan Caldwell et al., 147. 42 U.S.C. § 1395dd(b)(1) (2012); .F 147 One could argue that use of EDs by the uninsured, madethat use of EDs by the uninsured, One could argue possible by E.Solution Healthcare Challenges for the Poor—A Access HealthTech EM EALTH 7. S 7. emergency-care-without-crippling-competition/ [https://perma.cc/3TRJ-52XW]. H (EMTALA) JDR5-M8AD]; T Top Ten Diagnoses in the Emergency Department Top Ten Diagnoses in the Emergency https://doi.org/10.1371/journal.pone.0055491 [https://perma.cc/S7PF-KZF9]. United States as to whether healthcare is a right, it seems healthcare is a right, as to whether United States care is that universal in the most provided but already being expensive manner possible. is providing a HealthTech-enabled care coordination for underserved is providing a HealthTech-enabled The hospitals, which normallypopulations (and ED over-users). compete the because helping together to work are incentivized with each other, intensely improvesunderserved populations in Chicago their bottom lines—because the their EDs less often. underserved populations are using Network provide insurance, often seek care by going to an emergency going to care by seek often insurance, provide room (also as referred to an emergency department, or “ED”). to According the EMTALA law, population health management, is able to provide very effective care EMTALA, is a form this makes universal care, and given the expense, of a needed for these net is urgently universal healthcare safety strong case that a as it would provide a moreunderserved populations, alternative cost-effective to the misuse and overuse of EDs. Furthermore, that states may given soon be moving to a block grant system of reimbursement for Medicaid expenses (coupled to more limited Medicaid expansion), less funds will be available for the most vulnerable populations (e.g., on Medicaid). However, these factors for hospitals (which bear the incentives are already conspiring to create strong brunt of expenses associated with ED overuse) to find solutions that address the Indeed, the majorneeds of these vulnerable populations. healthcare providers work together in an Accountable Care in Chicago have already begun to called “ Organization (“ACO”), with a nonprofit 80 pays for this? pays for this? Hospitals do not get reimbursed uninsured when people use their emergency rooms; subsequently, this meansother healthcare consumers or 2013. whichtaxpayers end up paying, was estimated billion in to be $46 40672-mqi_22-1 Sheet No. 42 Side B 05/20/2019 14:43:36 B 05/20/2019 42 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 43 Side A 05/20/2019 14:43:36 . 81 152 OMPANIES MPROVING , I C EDICAL 9/21/2018 1:50 PM (July 28, 2017), OW HILE , M MHN Connect W : H EVIEW R OSTS C Consumerization ARE EVOLUTION C R ATIONAL , N ARE C EALTH H Millennials and the Consumerization of ), http://insights.wired.com/profiles/blogs/ HEIR EALTH T obal/home/what-we-think/consumerization [https obal/home/what-we-think/consumerization [https H Torinus argues that if such transparent Torinus argues that if such transparent The Consumerization of Healthcare 154 12:48 PM UTTING 153 How Big Data is Driving the Consumerization of Health How Big Data is Driving the Consumerization C RASSROOTS G goal was to provide cost-effective care that is high care that to provide cost-effective goal was HE (Aug. 14, 2015 7:00 AM), https://health.usnews.com/health- (Feb. 26, 2015 , T RAMATICALLY (Jan. 30, 2017), https://www.mpo-mag.com/issues/2017-01-01/view_colu ) Yes, We Should Block-Grant Medicaid D ORINUS RE NSIGHTS ELETE T I EALTHCARE A D H CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT N IRED OHN O EWS UTSOURCING (D &, https://www.strategyand.pwc.com/gl , W MERICA O A INAL INAL (2014). 153. Steve Maylish & Nick Rakhshani, 152. Sally Pipes, 154. J .F While the average healthcare consumer not in the United States does Advocates for the consumerization trend and transparent pricing includes , U.S. N M K EM CROSS ARE TRATEGY RODUCT C Y F.Bundling Medical Solutions: Transparent Pricing, Healthcare and Homes 7. S 7. receive primary medical insurance (typically care in an ED and does have through their employer), they general have or limited,no, to shop for the ability for medical (whether for insurance or directly best healthcare value services). Rather, it is employers that (HR administrators) shop for insurance. At the level made, at the patient (consumer)-physician interface, decisions are where buying neither party knows how much a treatment or medical nor what service costs, one source from is obtained or service treatment the if relative outcomes are the competitionover another. In effect, there is no where it needs to be, so there are no market to constrain costs and increase value to the consumer. forces putting informationThe trend towards changing this, by and buying power in the hands of patient consumersusing HealthTech tools, is called the healthcare.” “consumerization of John Torinus, Wisconsin-based healthcare thought leader and author of “The Grassroots Health Care Revolution.” http://www.nationalreview.com/article/449926/medicaid-block-grants-would-put-states-budget [https://perma.cc/XE5M-UL9B]. ://perma.cc/SD7P-UEU4]; Girish Navani, Care S mns/the-consumerization-of-healthcare [https://perma.cc/7KY3-QXCR]; mns/the-consumerization-of-healthcare [https://perma.cc/7KY3-QXCR]; A C P coordination to these populations using a software tool they call they call tool a software using these populations to coordination 2018] Medical Home Network’s Medical a coordination in care technology-enabled accessible, using quality and of primarynetwork systems. and hospital care providers a period of two Over $11 million, wereyears, they able to save providers while providing care for Medicaid1,189,195 cost care at lower This was better enrollees in Chicago. and represents the kind of approach states may are need to explore if they going where Medicaidto be put in a situation dollars become more limited via block budget. states on a on expansion, effectively putting grants and constraints millennials-and-the-consumerization-of-healthcare#axzz4uSAtxfPe. news/patient-advice/articles/2015/08/14/how-big-data-is-driving-the-consumerization-of-health-care news/patient-advice/articles/2015/08/14/how-big-data-is-driving-the-consumerization-of-health-care Glannulli, [https://perma.cc/MD7X-PJDW]. Thomas Healthcare 40672-mqi_22-1 Sheet No. 43 Side A 05/20/2019 14:43:36 A 05/20/2019 43 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 43 Side B 05/20/2019 14:43:36 M K 160 C Y TREET OW S H and into ALL [Vol. 22:1 [Vol. ERIGRAPH 158 AND S W 9/21/2018 1:50 PM , If companies HE OW ARE , T 159 C : H ARE So, employers often C ETTER B 157 156 EALTH H ROVIDING P OLVED for his employees by shopping, on shopping, for his employees by S HILE 161 W HAT T OSTS C OMPANY C HE , T with no logical or transparent connection to outcomes. connection or transparent with no logical note 150, at 3. note 150, at shows the dramaticdifferent variation in price for four KYROCKETING MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. How to Bring the Price of Health of Open Price Care Into the How to Bring the S 155 ) ORINUS supra T , ELETE D EDUCED OHN Table 3 J R OT OT N . . at 9. . at 24. . at ORINUS O See Id Id Id . at 116. (D Id INAL INAL 161. 160. 156. 157. T 155. Melinda Beck, 158. 159. .F Torinus views the healthcare consumer as being not just the patient seeking EM RAMATICALLY 7. S 7. self-insurance. Indeed, the trend in U.S.self-insurance. Indeed, the trend in companies is away from commercial insurance, towards direct pay by the companies, with the companies now for the best healthcare value. shopping Currently, over 40% of U.S. companies due to the increasing cost. do not offer health care insurance have the strongest incentive to find better care at lower cost (and they try to care at lower better have the strongest incentive to find on to their employees).with the associated benefits, along incentives, pass those Companiesfeel the pressure intensely since, according to Torinus (who was also former hyperinflation “has driven 40 CEO of Serigraph), healthcare percent of U.S. companies, mostly smaller firms, out of coverage” care but also the employer that pays for that person’s insurance. Employersemployer are that pays for but also the care incentivized—in the long term—for their employees to have good health, if themonly because it costs extremely chronic diseases is less since treating the importancecostly. Torinus notes sector as a healthcare payer of the private because it is companies pay for) most that provide (and people’s health insurance in the United the cost of the nation’s States, as they currently split nearly $3 trillion medical bill with the public sector. In the company Serigraph, he was able to save where Torinus served as CEO, care and provide better significant money self-insure, then they are empowered and incentivized to shop for the best cost. value—theoutcomes at the lowest best healthcare Torinus notes that price bears no variation for healthcare to the significant and procedures is connection the samewith procedure. for variations of 300%or outcomes,of care quality 1393020966 [https://perma.cc/X5NZ-DXYT]. 1393020966 [https://perma.cc/X5NZ-DXYT]. varying dramatically For example, Angeles. different hospitals in Los procedures at five pricing and marketspricing consumerswere healthcare in place, would ultimately get better care lowerat since cost what get patient-consumers (outcomes) would be to shop for value incentivized were to price, if patient-consumers better linked Yet, at present, copays). plans and associated high deductible (e.g., through there is transparency in no such pricing or outcomes, to healthcare cost leading J. (Feb. 23, 2014 5:03 PM), https://www.wsj.com/articles/what-does-health-care-really-cost- D 82 40672-mqi_22-1 Sheet No. 43 Side B 05/20/2019 14:43:36 B 05/20/2019 43 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 44 Side A 05/20/2019 14:43:36 163 83 , (Sept. 9/21/2018 1:50 PM UND F OLLABORATIVE C ARE —essentially patient- C 162 , Quad/Graphics Unit OMMONWEALTH RIMARY C P HE , T . J. (June 23, 2016 8:35 AM), US ENTERED B Medical Home Medical -C , http://www.quadmedical.com/company/history , http://www.quadmedical.com/company/history ED M ATIENT , P UAD ILWAUKEE , 14–15 (2010). , Q , M 150, at 92. 150, at AME S supra ) O THE D ELETE AN Case Study: QuadMed—Transforming Employer-Sponsored Health Care D C CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT Company History N Likewise, for MRIs, he found bundled prices as low as $525, which Likewise, for MRIs, he found bundled prices O Defining the Medical Home (D 164 OMPANY G.Healthcare Enabling HealthTech Technology: Consumerizing C INAL INAL 162. 163. 164. John Torinus, .F Bundling of pricing to enable competition,shopping can enable and provide M K EM VERY C Y 7. S 7. telemedicine) facilitate this process? bundled prices By negotiating upfront and bundled price for his Serigraph employeesshopping, Torinus found the lowest for knee replacementsto be $27,500; whereas, in the Milwaukee market, knee $27,500 to $70,586, replacement from prices range arbitrarily a medianwith of $44,422. QuadMed in Growth Mode QuadMed in 2009), http://www.commonwealthfund.org/publications/newsletters/quality-matters/2009/september- october-2009/case-study [https://perma.cc/76X7-24LB]; Rich Kirchen comparedcommonly favorably with the $2000 or $4000 charged by some shopping in this mannerlarge healthcare providers. However, is labor intensive and outside of the scope of what most healthcare consumers (whether better care at lower cost, as Torinus did for his Serigraph employees.better care at lower cost, as Torinus Can digital medicine;HealthTech (e.g., healthcare IT; medicine; connected Through Workplace Primary Care and Wellness Programs [https://perma.cc/S4FF-2SSM]; Douglas McCarthy, https://www.bizjournals.com/milwaukee/news/2016/06/23/quad-graphics-unitquadmed-in-growth- mode.html [https://perma.cc/T6FC-W3FS]. https://www.pcpcc.org/about/medical-home [https://perma.cc/F5T8-LTZY]. https://www.pcpcc.org/about/medical-home [https://perma.cc/F5T8-LTZY]. E their behalf, for the best healthcare. However, shopping requires a bundling of bundling a requires shopping However, healthcare. the best behalf, for their which medical a healthcare procedure, prices for have not providers typically done (e.g., simplyone cannot how much ask a knee replacement costs, because as operating room expenses, such a range of undefined there are cost, surgeon, etc.). Companiesanesthesia, will Serigraph like Torinus’ negotiate bundled their employees, upfront for like knee surgery various procedures prices for routine medical services. a range of provide onsite clinics to also have and they of is considered a kind onsite clinic The obtained, Companiesthat to implement want that Serigraph of savings the kind QuadMed. contract with but need help, can companies like Milwaukee’s 2018] centered care that is implementedcentered care that by a healthcare team. and coordinated This an on-site clinic/medicalmodel home is prices and providing of using bundled in companiesbeing adopted broadly States but was actually across the United pioneered by a Milwaukee company, which formed Quad Graphics, QuadMed to address its own Now, healthcare costs. QuadMed is growing nationally and Briggs & Stratton. by companies like Kohls and has been adopted 40672-mqi_22-1 Sheet No. 44 Side A 05/20/2019 14:43:36 A 05/20/2019 44 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 44 Side B 05/20/2019 14:43:36 ). M K 173 J. C Y has now [Vol. 22:1 [Vol. Table 2 ILWAUKEE 167 9/21/2018 1:50 PM (May 10, 2016), , M 170 ALL H ttps://perma.cc/2WZQ- founded by Eric founded a.cc/9KSV-XL3Y]. 165 (Mar. 19, 2017 9:19 AM), AUFMAN are providing individuals , K 172 NSIDER I although Access HealthNet acts although Access -disruption [h 169 USINESS , B and RemedyNow A web portal has been created to allow A web portal has note 163. 171 168 supra , , http://accesshealthnet.com/ [https://perma.cc/9ZP9-HLQ4]. , http://accesshealthnet.com/ A Clear and Present Disruption ET ET N N MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. A New Kind of Doctor’s A New Kind of a Monthly Fee and Office Charges Doesn’t Take MRI, https://smartchoicemri.com/[https://perm Milwaukee Start-up Makes Health Care More Efficient Milwaukee Start-up Makes Health Care More , https://remedynow.net [https://perma.cc/D2JL-QNM2]. ) This is strong evidence of how transparent pricing and of how transparent pricing This is strong evidence OW EALTH EALTH HOICE N H H 166 ELETE , https://www.guroo.com [https://perma.cc/MRP7-RA59]. , https://www.guroo.com C D MD, https://www.yourmdmequon.com [https://perma.cc/CJ4K-BK53]. MD, https://www.yourmdmequon.com OT OT N UROO CCESS OUR CCESS EMEDY MART O (D (Jan. 12, 2017, 8:09 PM), http://www.jsonline.com/story/money/business/health- INAL INAL 167. A 169. G $69,259 to $109,432). 166. Kenneth Kaufman, 172. R 165. S 171. Y 170. A 168. Guy Boulton, 173. Lydia Ramsey, .F Other southeast Wisconsin HealthTech companies working to improve EM ENTINEL 7. S 7. https://www.kaufmanhall.com/resources/clear-and-present C9LV]. care/2017/01/12/milwaukee-startup-makes-health-care-more-efficient/96268824/ [https://perma.cc/724K-WMM8]. individuals or the companies or individuals employ that them) end, To this expect. Milwaukee HealthTech Smart startup Choice MRI, Milwaukee startups YourMD healthcare delivery and to create more transparent and competitive markets include Dynamis, Intellivisit, YourMD,and RemedyNow ( 84 S competition lead to lower can cost and care high-quality a howand Milwaukee HealthTech company is addressing that problem. Another Milwaukee Access HealthNet, founded by Haberichter, HealthTech startup http://www.businessinsider.com/direct-primary-care-a-no-insurance-healthcare-model-2017-3 [https://perma.cc/37Y2-8TRA]. (rather than companies) with the information and power to make own their business a self-pay but in decisions, buyingand urgent care healthcare primary model where patient-consumerspay out of pocket for expenses. Often the this direct-pay model, which bypasses insurance, associated with expenses Haberichter, is revolutionizing the MRI the is revolutionizing Haberichter, in Wisconsin industry by bundling consumers employers, (individuals or sometimes and direct-pay prices for even offer some because they other providers) quality MRIs of the highest at $600, mostwhereas the much had been charging hospitals an average higher with price of $2600. bundled theover 1000 procedures, to expand savings that can be obtained from pricing morebundled and transparent healthcare, including broadly across vary from tunnel surgery (where prices procedures like carpal carpal tunnel from (where prices vary surgery back lower $4003 to $8936) and from surgery as a broker to shop for and negotiate the best bundled and transparent prices as a broker to shop for and negotiate for healthcare consumers (typically employers that self-insure). consumers to mine these price variations, Insurance—and it Could be the Future of Medicine 40672-mqi_22-1 Sheet No. 44 Side B 05/20/2019 14:43:36 B 05/20/2019 44 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 45 Side A 05/20/2019 14:43:36 , 85 NSIGHT I Dynamis 9/21/2018 1:50 PM ROPHIT P of 1973, this trend (Mar. 6, 2017 12:12 PM), PM), 12:12 2017 (Mar. 6, Network Leakage, IMES T IZ B ), while also increasing healthcare costs. ), while also increasing healthcare A third barrier to free markets and A third barrier to free markets 178 176 Table 3 Price Competition in Hospital Markets, The Significance of Managed note 126. 292, 320 (2002). 292, 320 which provides an insurance plan optimization resource plan optimization an insurance which provides resource Health Maintenance Organization Act ) This lack of outside referral decreases value-based This lack of outside referral AW Accurate Information Using ReferralMD Provider SmartMatch Reduces supra L 174 Section IV.A. , https://dynamiscorp.com/ (last visited Oct. 3, 2017); Molly, https://dynamiscorp.com/ (last visited Oct. 3, Dill, , MD, https://getreferralmd.com/track-patient-referral-leakage/ [https://perma.cc/ ELETE 177 D Another importantAnother consumerizing tool in HealthTech care is CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT EALTH N H 175 H.Consumerization to Healthcare Barriers Reform and YNAMIS See e.g. O See infra EFERRAL OF (D , R INAL INAL 176. Buchanan, 177. 175. 174. D 178. William G. Kopit, .F , 35 J. In order for healthcare to be consumerized, with patients having freedom to freedom consumerized, with patients having to be In order for healthcare M K EM C Y 7. S 7. https://www.biztimes.com/2017/industries/banking-finance/dynamis-software-raises-1-3-million- https://www.biztimes.com/2017/industries/banking-finance/dynamis-software-raises-1-3-million- round [https://perma.cc/LS82-3YP3]. Software raises $1.3 million round, $1.3 million Software raises Care towards as anticompetitive hospital consolidation could be characterized and consumershealthcare who “face increased hospital prices as result of is hurting decreased price competition.” 7S6N-JUVZ] (last visited Oct. 3, 2017); telemedicine, door to primary front providing a digital along such as is care, Intellivisit. being offered by Adding to this issue is a trend towardmaking increasing consolidations, for a smaller providers with increasing levels of market pool of large healthcare power in a given community. review article by one of As was noted in a law the architects of the competition and likely contributes to the lack of correlation between cost and competition to the and likely contributes outcomes (see above and are less than the copays associated with insurance plans. For those that would that would For those plans. insurance with associated the copays than are less value, Milwaukee for the best insurance like to shop has serial entrepreneur created Dynamis, general healthcare in Switzerland to offeredwhat is reminiscent of for brokers, consumers. 2018] shop for value-based care based in transparent and competitive care based in transparent and shop for value-based markets, patients must be empowered healthcare they want. They may shop for the to want the but can they actuallyknow what they want, it? If they decide they get Smart Choice and because they feel it is better MRIthey prefer the quality $600 $2600 price tag, are they empoweredprice tag over the that choice? to make The reality is that they are not always free to do so. Hospitals often strongly in the services the MRI (e.g., to use for procedures encourage internal referrals hospital even if it is lower a quality and more there is such expensive). In fact, string concern about outside referring of the hospital, referred to as “leakage,” prevent this fromthat hospitals expend resources to happening since it costs them revenue. http://www.prophitinsight.com/network-leakage (last visited Oct. 3, 2017). http://www.prophitinsight.com/network-leakage (last visited Oct. 3, Leakage 40672-mqi_22-1 Sheet No. 45 Side A 05/20/2019 14:43:36 A 05/20/2019 45 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 45 Side B 05/20/2019 14:43:36 , M K It is C Y ONEY 179 , M Out-of- Out-of- OR F Former [Vol. 22:1 [Vol. IERCE F 9/21/2018 1:50 PM OADMAP with predominantly (Aug. 31, 2015 10:28 AM), : A R (EMRs) hospitals, in used EWS , Is Epic Stifling Health IT Innovation? IT N EFORM TATES with private-sector providers and R S Beveridge Model NITED EALTHCARE Why Epic’s Market Dominance Could Stifle and EHR U (Apr. 25, 2013), http://medicaleconomics.modernmedi , H HE EALTHCARE T former-hospital-ceo-calls-epic-antitrust-probe former-hospital-ceo-calls-epic-antitrust-probe H However, what does the rest of the world do, and However, what does the rest of the CONOMICS E What Is Single-Payer Healthcare and Why Is It So Popular? What Is Single-Payer Healthcare 180 MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. NABLED Electronic MedicalElectronic Records ) -E EDICAL Paul Levy Urges Investigation of Epic for Antitrust Violations, Paul Levy Urges Investigation of Epic for Antitrust , M ELETE ECH D (rural areas of Africa and India) where consumers(rural areas of Africa and India) where pay directly , http://www.epic.com/ [https://perma.cc/Y2J9-BZGJ] (last visited Oct. 3, 2017). , http://www.epic.com/ [https://perma.cc/Y2J9-BZGJ] T OT OT N PIC (Sept. 1, 2015 12:43 PM), http://www.fiercehealthcare.com/ehr/paul-levy-urges- National Health Insurance Model A.World Learning from Best Practices in the Rest of the O (D EMR & EHR (April 30, 2013), http://www.hospitalemrandehr.com/2013/04/30/is-epic- EALTH INAL INAL 180. Alicia Adamczyk, 179. E .F The current debate about healthcare in the United States often focuses on The current debate about healthcare EM OSPITAL EALTHCARE IV. H 7. S 7. how well is it working? There are four majorhow well is it working? There are models of healthcare delivery used throughout the world: (a) the government Great Britain; Spain; most control (e.g., Scandinavian countries; Cuba), the governmentKorea, and Taiwan), the run insurance (Canada, South Pocket Model single payer (government) versus multi-payer (competition) and the benefits and downsides of each. which are provided predominantlywhich are by two companiesand and Cerner) (Epic or two major by one adopted exclusively which, when in a providers community, used as a way can also be to exclude competition, to since access limited records is patient health Some or excluded. and even have argued as anticompetitivebe characterized that this can also litigated behavior. true that under HIPAA requirementstrue that under HIPAA be shared (without patient data cannot consent), but extreme medical limiting of access to data, that arguably record to the consumerization is going to be a strong barrier belongs to the patient, of healthcare. Somehow, patients need to be empowered access to and to have healthcare data and to makecontrol of their other healthcare buying or the various providers that data. This includes data about decisions based on and insurance companiescompeting that are (or should be) for their business. for the consumerizationThis is the vision healthcare. of cine.com/medical-economics/content/tags/electronic-health-records/why-epics-market-dominance- could-stifle-ehr [https://perma.cc/L8W6-6ASJ]; Anne Ziegler H investigation-epic-for-antitrust-violations Mike [https://perma.cc/7HNJ-RS53]; Miliard, stifling-health-it-innovation/ [https://perma.cc/YY7B-G4DU]. competition the is http://www.healthcareitnews.com/news/ [https://perma.cc/9F68-XF66]; Brandon Glenn, Health IT Innovation (Apr. 13, 2017), http://time.com/money/4733018/what-is-single-payer-healthcare-system [https://per ma.cc/4TWN-B4SF]. H 86 Hospital CEO Calls for Epic Antitrust Probe Marla Durben Hirsch, 40672-mqi_22-1 Sheet No. 45 Side B 05/20/2019 14:43:36 B 05/20/2019 45 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 46 Side A 05/20/2019 14:43:36 , , 183 87 ., CH . ARE The C ROG (Apr. 29, 181 P OSPITAL About the H 9/21/2018 1:50 PM ORBES EALTH EALTH H , F H HICH L ’ 184 AT , W N , which makes decisions FFICIENCY IN E HYSICIANS FOR A , P with nonprofit insurance that covers that insurance nonprofit with Institute for Quality and Efficiency in Institute for Quality and Efficiency in Health Care: Institute for Quality and Efficiency in Health (July 2009), http://www.commonwealthfund.org/~/media/ UALITY AND UND Federal Joint Committee Q F which was created in 2004 to provide healthcare which was created 182 Bismarck ModelBismarck ) Why System Switzerland Has the World’s Best Health Care and also has the and also has the ELETE D OMMONWEALTH CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT C (“IQWiG”), N NSTITUTE FOR O Health Care Systems—Four Basic Models HE (D , T INAL INAL 184. Avik Roy, 181. 182. I 183. Mona Nasser & Peter Sawicki, .F M K EM C Y 7. S 7. .pdf [https://perma.cc/MNQ3-SW2E]. final model model is a type of hybrid often encourages allows for and that consumers with information allowing and providing of care by consumerization them and outcomes). value (price for the best healthcare to shop though Even it as a “universal government-guidedthis can be described healthcare system,” system.is not a single payer some There is still form of competition, and consumers information are given to permit Germany shopping. has the Bismarck Model Healthcare Files/Publications/Issue%20Brief/2009/Jul/Chalkidou/1294_Nasser_CER_Germany_issue_brief_724 2011 5:27 PM), https://www.forbes.com/sites/theapothecary/2011/04/29/why-switzerland-has-the- worlds-best-health-care-system/#503b78bb7d74 [https://perma.cc/AP7X-JESX]; Independent Association Hospital Comparison Switzerland, Zurich for care, and the care, and for consumers and often allows doctors and providers but uses private everyone for the best to “shop” Japan). values (Germany, healthcare Switzerland, It is advisory to Germany’s regarding reimbursements, German based on evidence. Since under law all needed medical procedures must be covered, this information is only used to compare cost and benefits of comparable relative treatments, so that the best and also most cost-effective treatments of can be chosen. This is a kind healthcare information to foster competition. sharing, Switzerland, by many world. systemsaccounts, has one of the best healthcare in the 2018] consumers with information on cost and benefits of different health services. of health benefits different cost and information on consumers with http://www.pnhp.org/single_payer_resources/health_care_systems_four_basic_models.php 2017). [https://perma.cc/4TWN-B4SF] (last visited Oct. 3, www.iqwig.de/en/home.2724.html [https://perma.cc/NTP9-UCDV]. Germany https://which-hospital.ch/hospital-comparison-switzerland.php [https://perma.cc/CK37-U3SX] (last visited Oct. 3, 2017). 40672-mqi_22-1 Sheet No. 46 Side A 05/20/2019 14:43:36 A 05/20/2019 46 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 46 Side B 05/20/2019 14:43:36 , M K 185 C Y ONEYLAND [Vol. 22:1 [Vol. M 9/21/2018 1:50 PM ) that is maintained Fig. 4 Fig. , an independent association. This , an independent association. This MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ) ELETE D OT OT . Web-based portal in Switzerland for healthcare consumers to to consumers for healthcare in Switzerland portal Web-based . Hospital Insurance: Compare Premiums and Services, N O (D Fig. 4 Fig. INAL INAL Like Germany,for consumer-based it also provides a mechanism research 185. .F Hospital Comparison Switzerland EM research and compare providers, in terms of quality metrics and price price and metrics quality of terms in providers, compare and research (Which-hospital.ch). 7. S 7. by on the quality of medical services, via a web portal ( What is unique about the is that shop for Swiss system individuals and purchase their own limited insurance, rather than being to plans provided by their employers or the government (as in the States), and there are copays United to value by consumers.encourage shopping for the best healthcare The Swiss comparedgovernment to 7.4% spends only 2.7% in the of GDP on healthcare, United States, and Switzerland achieves this with some of the best health in the clinic, outcomesedge in the world,technology medical cutting access to 88 resource allows patients to query and compareresource allows patients to query and metrics such as: infection rate, mortality rate, number patient satisfaction, and number of patients treated, of Swiss healthcare consumers to help staff per patient. There are also resources compare coverage for procedures with and shop for hospital insurance filters that permit where procedures are fully covered. identification of hospitals https://www.moneyland.ch/en/hospital-insurance-comparison [https://perma.cc/WA5H-DL68] (last 2018). updated Apr. 40672-mqi_22-1 Sheet No. 46 Side B 05/20/2019 14:43:36 B 05/20/2019 46 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 47 Side A 05/20/2019 14:43:36 189 89 While HYSICIANS 187 Affordable , P (Aug. 9, 2016), 9/21/2018 1:50 PM (Oct. 8, 2017), OST C UORA RUE T , Q [https://perma.cc/6G6H-CRVD]; available at A Two-Tier Health Care System: The New A Two-Tier Health Care System: The New http://www.pnhp.org/news/2003/january/the_ The Swiss modelThe might makefor a The New Zealand Health Care System 186 ract_id=2627709 190 in the United States in the United (Jan. 3, 2003), ) can address those needs in whatever healthcare systemhealthcare those needs in whatever address ) can List of Countries with Universal Healthcare, ROGRAM P ) note 178. ELETE EALTH Table 2 D supra In contrast, countries like Australia and New Zealand, which like Australia and New Zealand, In contrast, countries H What are the Benefits of a Two-Tier Healthcare System CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING Colleen M. Flood & Lorian Hardcastle, OT OT N . . (Ottawa Faculty of Law Working Paper No. 2015), 188 O See Id Id ). (D ATIONAL INAL INAL N 188. Praveenghanta, 187. 189. 190. 186. Roy, .F Whether system,insurance or hospitals in the Swiss shopping for or This article has presented arguments in favor of the consumerization of M K EM C Y B. for a HealthTech-enabled Hybrid Proposal and Tiered Healthcare System 7. S 7. could also serve as modelscould also serve have a two-tier for the United States, system, Germany have an care, they both hybrid models of have and Switzerland mandateinsurance States, under the case in the United (as is the Care Act new_zealand_heal.php [https://perma.cc/BLM7-GPVX]. politically expedient compromiseexpedient it has elements in the United politically that States, since (privately-managed both conservatives could satisfy government care; low insurance market).care; regulated and liberals (universal spending) https://truecostblog.com/2009/08/09/countries-with-universal-healthcare-by-date https://truecostblog.com/2009/08/09/countries-with-universal-healthcare-by-date 21, 2013). [https://perma.cc/XU9H-JE9C] (last updated Jan. healthcare services generally in New Zealand’s system,healthcare services consumers looking for value need informationthe best healthcare empowered and to be use that to information. The HealthTechbeing developed by Wisconsin tools HealthTech entrepreneurs ( https://www.quora.com/What-are-the-benefits-of-a-two-tier-healthcare-system [https://perma.cc/4JT4-SGXK]; Stuart Bramhall, and low wait timeslow wait and procedures. for 2018] by somewhich is considered to be a possible improvement to the Canadian system—by market providing a self-pay private layer on top of the government- net. safety funded universal care FOR A Brandon Waugh, Zealand Story https://papers.ssrn.com/sol3/papers.cfm?abst healthcare, by giving consumersaccess to transparent pricing and outcomes, and empowering them healthcare value based on that to shop for the best information. It is argued, based on lower cost and examples, that this would to care, as long as increase anticompetitivequality and access behavior of large this trend. Based on the above argumentshealthcare providers does not block and data from New Zealand and Switzerland, a other countries, especially hybrid and two-tiered as being the best modelis for the system suggested Unites is ultimatelyStates. implemented in the United 40672-mqi_22-1 Sheet No. 47 Side A 05/20/2019 14:43:36 A 05/20/2019 47 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 47 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 9/21/2018 1:50 PM ) to shop for the best ) to shop for the best 191 if a healthcare consumer if a healthcare consumer Fig. 4 Fig. Institute for Quality and , using an open EMR that sits on top of the (and analogous to what Access HealthNet offers in what Access HealthNet (and analogous to MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. note 169; WISHIN, www.wishin.org [https://perma.cc/J8LB-RYV7]. note 169; WISHIN, www.wishin.org ) supra ELETE , D OT OT N UROO Medical Home Network O (D INAL INAL 191. G .F So, the first tier in this two-tier proposed healthcare is system market driven Many would argue that healthcare should be universal, and that the above be universal, and that Many would argue that healthcare should EM 7. S 7. Wisconsin, or via web portals like Guroo and WISHIN). Wisconsin, via web portals like Guroo and or Efficiency in Healthcare insurance value; or, for the best healthcare value, defined as cost and quality of of cost and quality defined as value, healthcare best the for or, insurance value; provided in Germanythe service, as is by the States. ConsumersStates. a system in such consumers direct healthcare be the could or their employer(i.e. the patient), or QuadMed). (e.g., Serigraph party Either choose to could in New Zealand, for care (as pay directly and as with YourMD or RemedyNow in Switzerlandin Wisconsin), and (as shop for insurance or to as with Dynamis in Wisconsin). Information consumer to guide decision- making these above, and tools, as discussed provided by HealthTech could be tools could resemble the portal used in Switzerland ( 90 various provider EMRs. This would require a type of HIPAA-compliant difficult. Ultimately,sharing of patient data that is currently patients need to informationbe empowered also have and should to have access to and use this not affiliated withaccess to a care coordinator that is by) any one (and biased provider that has commercial of leakage). Primary interests (e.g., avoidance and urgent care could be provided in this way, with to referrals more expensive MRIs)and specialized care (e.g., hip surgery; by shopping for the best value, systemusing the help of a broker and portal like Access HealthNet, done directly by the consumer, a consumer or by representative, such as a care coordinator. system is flawed, being unfair to especially vulnerable populations who cannot afford care. Those populations may choose to get care only when then EDs, made using possible by needed, and in the most way expensive absolutely possible because of EMTALA regulations. about meeting There is also concern the needs of the poor, especially Medicaid populations—which the includes 60% homes of people in nursing who ultimately end up on Medicaid(and therefore in poverty). any as well as of the needs of this population, To address person who needs access to basic medical care in very dire and expensive it situations, is argued that there should also be a second tier that acts as a safety with competition (as in Newdirect pay or paid via could be Zealand) and (unlike New Zealand). individual insurance However, and is getting care fromis in charge of care multiple sources (e.g., a medical home-like clinic at work, such as a QuadMed clinic, and also via direct pay options, like YourMD), it will coordination like that important be to have care offered by 40672-mqi_22-1 Sheet No. 47 Side B 05/20/2019 14:43:36 B 05/20/2019 47 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 48 Side A 05/20/2019 14:43:36 in 91 Out of this 9/21/2018 1:50 PM 193 model) or by the (July 9, 2010, 2:57 PM), 2:57 PM), (July 9, 2010, Remedium eXchange OST in Chicago does. That That does. in Chicago . P ASH W HE , T . Nor is there any reason why the state . Nor is there any reason why the state Healthcare Medical Home Network Medical Home Network , agreed there is value in having a safety net: net: , agreed there is value in having a safety , rxthinktank.org/healthcare-economics-summit-meeting- comprehensive system of social insurance Medical Home Network Network Home Medical CHANGE Hayek on Social Insurance X ) 192 ELETE D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT N The Road to Serfdom EMEDIUM E O sufficient to preserve health (D INAL INAL 193. R 192. Dylan Matthews, .F The poor or those confronted with medical situations or expenses which are The above article is based on and derived fromThe above article is based on and a meeting on March 21, There is no reason why, in a society which has reached the general level of reached which has There is no reason why, in a society The above proposal is two-tiered, resembling the system in New Zealand, is two-tiered, resembling the system The above proposal C. (Rx) Think The Remedium eXchange Tank—Helping to Consumerize M K EM C Y 7. S 7. summary [https://perma.cc/3VQK-Z4L4 ] (last visited Oct. 02, 2017). summary [https://perma.cc/3VQK-Z4L4 ] (last visited Oct. 02, http://voices.washingtonpost.com/ezra-klein/2010/07/hayek_on_social_insurance.html added). [https://perma.cc/M64G-LVFE] (emphasis excessive and unanticipated should have someexcessive and unanticipated should safety net but done in a way that also preserves the Americanpassion and commitment to free markets and competition. Maybe this is something Democrats and Republicans, albeit on. reluctantly, could actually agree to—or at least compromise 2017, entitled the “Healthcare Economics Summit,” attended by over 100 healthcare in Wisconsin.thought leaders and practitioners in event grew a healthcare economics think tank, called the providing for those common which few can make life against hazards of adequate provision. wealth ours be not has, the first kind should guaranteed of security to all without endangering general freedom; is: some that minimum of food, shelter and clothing, should not help to organize a system care system a unique coordinated to provide uses HealthTech that was able to improve outcomes, million and even saved $11 over 1 million for the MedicaidCanadian tier, as in the years. This second served over two patients might so it system, from eventually suffer would be universal, some of the same limitations Canadian system as the long waiting (i.e. times more and limited net for everyone that is to care), but it would provide a safety access be in the U.S. healthcare system.currently not available This second tier could financed by the major healthcare providers from the savings they enjoy (as was the case in the Chicago-based net, and functions like the like and functions net, 2018] government, in a single payer model. government, in a single payer be considered compromiseand offering elements would likely that both by the Unitedpolitical parties in States, so it may viable be the only politically and free market economist individualistic solution. Even the Friedrich Hayek, in his book 40672-mqi_22-1 Sheet No. 48 Side A 05/20/2019 14:43:36 A 05/20/2019 48 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 48 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 9/21/2018 1:50 PM ” event, an expert These traits are valuable in , even if Wisconsin ranks low 198 In short, it is focused on helping to In short, it is focused is to “to provide information,is to “to provide resources, 197 ONCLUSION note 187. V. C supra , rxthinktank.org/our-staff/ [https://perma.cc/4R4J-MASC] (last with a focus on consumerizingwith a focus This healthcare. , rxthinktank.org/about-us [https://perma.cc/G4YG-YVQ6] (last , rxthinktank.org/about-us [https://perma.cc/G4YG-YVQ6] , This may be why the Wisconsin is a entrepreneur 199 195 Rx Think Tank Rx Think MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. CHANGE CHANGE CHANGE X X X where over forty members over forty where in conversations engaged have ) note 4. Main Street Entrepreneurship Celebrating the Wisconsin Entrepreneur 194 , ELETE D supra OT OT N The vision of the Tank is to “to increase Quality,Rx Access,Think . EMEDIUM E EMEDIUM E EMEDIUM E O Id Id. (D 196 INAL INAL 199. 196. R 194. R 195. R 197. 198. Sem, .F A survey of Wisconsin companies and the entrepreneurs that founded At a recent “ The mission the of EM 7. S 7. panel described Wisconsin entrepreneurs as “innovative, capital efficient, hard- entrepreneurs Wisconsin described panel humblereliable.” and working, values-driven, and Affordabilitypatient-centered and consumer- of healthcare for all, in a delivery model.”driven healthcare consumerize and reform and learning from healthcare, by partnering with Wisconsin including southeast Wisconsin’s healthcare leaders and innovators, HealthTech community. national leader in for overall startup activity. However, Wisconsin a vibrant entrepreneurial ecosystem, resources, is with associated working hard to change that latter statistic. creating sustainable businesses that last, but they may last, creating sustainable businesses that sometimes work against and high-reward startups that need large amounts high-risk the creation of very the Wisconsinof venture capital to scale. In particular, is entrepreneur sometimesmay not and risk averse excel at sales (and, in the extreme, hype and puffery), but they are “more and robust—often enduring more the distance- runner than the sprinter.” (Rx) Think Tank (Rx) 92 visited Oct. 02, 2017). visited Oct. 02, about healthcare reform,about healthcare and support to policy makers, healthcare innovators, patients, and providers, to makers,healthcare to policy patients, and providers, innovators, and support help them consumerize and to accomplish healthcare, this by incentivizing, can make so they educating, and empowering their own and providers patients healthcare decisions—so market increase can drive down cost and forces quality.” think tank exists think tank to serve a as for catalyst reform, on healthcare discussions with especially cost, United States, challenges in the address healthcare a goal to access. quality, and visited Oct. 02, 2017). visited Oct. 02, 40672-mqi_22-1 Sheet No. 48 Side B 05/20/2019 14:43:36 B 05/20/2019 48 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 49 Side A 05/20/2019 14:43:36 93 9/21/2018 1:50 PM a two-tier healthcare , reveals a , reveals “common TM 201 , Rx Think Rx Tank Mission statements reflect these values, these values, Missionreflect statements 200 , http://www.rxthinktank.org [https://perma.cc/PD77-W9Z9]. , http://www.rxthinktank.org CHANGE Wisconsin Exhibit Entrepreneur X ) ELETE D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT N EMEDIUM E O Id. (D INAL INAL 200. 201. R .F M K EM C Y 7. S 7. 2018] theme of values amongstof values Wisconsin companies, trust, honesty, including theme integrity, hard work, and quality.” them profiled in the in them profiled system has been proposed for the United States. This system would have have would system This States. has been proposed for the United system markettransparent pricing and competition in a driven system in one tier, coupled to a second safety net tier that is universal, and both tiers are modeled and after successes in other countries, also by Wisconsin HealthTech deliver patient-centered healthcare to ways businesses that are pioneering new more efficiently. and on occasion also state the centrality of the founders’ faith and religious faith and founders’ the the centrality of occasion also state on and faith, business and often blending culture, of corporate drivers values as economics. Over with the largest profiled, Wisconsin companies were 150 number of companies manufacturingin sectors that included: and engineering, and food and beverage, and insurance, the law, numberwith a significant in and impactfulare mostmay exciting that trends future the but sectors, retail which sectors, biotechnology and technology and the be in the healthcare, industry. Wisconsin, southeast and particularly HealthTech the includes Wisconsin, has a large number of HealthTech companies that are proposing solutions to some of the delivery, and are leading the challenges in healthcare leaders in and on their efforts, Based healthcare. consumerizing efforts at that are part of healthcare thought the 40672-mqi_22-1 Sheet No. 49 Side A 05/20/2019 14:43:36 A 05/20/2019 49 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 49 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 9/21/2018 1:50 PM cousinssubs.com culvers.com festfoods.com usventure.com wecenergygroup. com associatedbank. com bakertilly.com heartlandadvisors .com johnsonbank.com bmoharris.com rwbaird.com spectruminvestor. com belgioioso.com abcsupply.com galarson.com jschmitt.cc industries.com eatstreet.com manpowergroup. com .com construction.com richardson- .com Bill Specht and Jim Sheppard George, Ruth, Craig and Lea Culver UW-Madison Students Paul and Jane Skogen Art, Ray, and Bill Schmit Bill Nasgovitz Samuel C. Johnson Elmer Winter and Aaron Scheinfeld Robert Wison Baird James F. Marshall Otto J. Schoenleber buybulkchocolate Errico Auricchio Ken and Diane Ken and Diane Henricks Gus Larson Joseph Schmitt Patrick G. Miron Joseph and Carolyn miron- Richardson Martin Boldt theboldtcompany 1848 1896 1972 1894 1984 1899 1984 1970 1979 1948 1919 1936 1946 1889 1951 2010 1995 2000 1882 1918 1970 1982 1982 APPENDIX—TABLE 1 MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. Sheboygan Falls Minnesota Menomonee Falls Prairie du Sac Madison Wisconsin Brookfield Milwaukee Chicago Milwaukee Milwaukee Chicago ) Pewaukee Sheboygan Green Bay ELETE D OT OT N O (D INAL INAL .F EM Ambrosia Chocolate Wayzata, BelGioioso Cheese Green Bay Cousins Subs Culvers Eat Street Festival Foods Associated Banc- Corp Baker Tilly Virchow Krause L.L.C. Fiserv Johnson BankManpower Racine Marshall & Ilsey (BMO Harris) Robert W. Baird Spectrum Investing Mequon PG MironRichardson Industries The Boldt Company Neenah Appleton Us Venture Inc.WEC Group Appleton ABC SupplyGustave A Larson Company Beloit Jos. Schcmitt Construction 94 7. S 7. Food and Beverage Corporate NameCorporate HQ Year Founder Trades and Building Construction Website Energy (gas, electric, transmission, pipelines, mining) Finance, Accounting and Support 40672-mqi_22-1 Sheet No. 49 Side B 05/20/2019 14:43:36 B 05/20/2019 49 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 50 Side A 05/20/2019 14:43:36 95 g s.or y 9/21/2018 1:50 PM history bcw.edu chw.org columbia- stmar gehealthcare.com omanhene.com organicvalley. coop palermospizza. rockyrococo.com roundys.com schreiberfoods. com sendiks.com pointbeer.com/abo ut/ usinger.com woodmans- food.com aurorahealthcare. org genbev.com belgioioso.com hillshirefarm.com johnsonville.com/ home.html kopps.com kwiktrip.com mabaensch.com mastersgalleryfoo ds.com millercoors.com milios.com newglarusbrewing .com com com com The Junior League of Wisconsin Daughters of Charity Steven C. Wallace George Siemon Oscar F. MayerJacob Best oscarmayer.com Gasoare and Zina Fallucca Sam Jacobsen pabstbrewingco. pdqstores.com Leonard Gentine L.D. Schreiber sargento.com Balistreri Godfrey FamilyRandal Sprecher sentryfoods.com Frank Wahle and sprecherbrewery. George Ruder Fred Usinger John Woodman William A. Breyer breyers.com Errico Auricchio Fritz Bernegger Alice Ralph F. and Stayer Elsa Kopp Don Zietlow Baensch family Leonard Butch Frederick Miller Mike Liautaud Paul A. StittDeborah Carey naturalovens.com 1953 1945 1857 1974 1947 1894 1848 1984 1956 1993 1844 1976 1945 1866 1979 1991 1964 1872 1926 1960 1880 1932 1950 1949 1965 1934 1934 1974 1920 1985 1988 1873 1933 1989 1855 Waukesha Milwaukee Milwaukee Milwaukee Janesville Milwaukee Milwaukee Milwaukee Milwaukee New Glarus Milwaukee La Farge Los Angeles Sheboygan Falls La Crosse Milwaukee ) Steven's Point Plymouth Green Bay Greenfield ELETE D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT N O (D INAL INAL .F M K EM C Y GE Healthcare UsingersWoodmans Milwaukee Aurora Health Care Blood Center of Wisconsin Children's Hospital of Wisconsin CSM Milwaukee Palermo's PDQ Food StoresRocky Rococo Middleton Roundy's Sargento Cheese Oconomowoc Schreiber Foods Plymouth Sendik's Food Green Bay Market Sentry Foods Sprecher Brewery Glendale Steven's Point Brewery Masters Gallery Foods MillerCoorsMilo's SandwichesNatural Ovens Madison New Glarus Brewing Chicago Manitowoc Omanhene Cocoa Bean Company Organic Valley Oscar MayerPabst Madison General BeverageGeneral Good Humor- Madison Breyers CheeseBelGioioso Hillshire Farms Green Bay Foods Johnsonville IL Peoria, Kopp's Frozen Custard Kwik Trip Ma Baensch Insurance (life, health, casualty, flood) 7. S 7. 2018] 40672-mqi_22-1 Sheet No. 50 Side A 05/20/2019 14:43:36 A 05/20/2019 50 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 50 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 9/21/2018 1:50 PM g amsoil.com appvion.com foley.com gklaw.com gruber-law.com quarles.com allischalmerslawn. com amsoil.com appvion.com allischalmerslawn. com quadmedical.com shopko.com aurorahealthcare. or bcw.edu chw.org acuity.com amfam.com m3ins.com dewittross.com ual.com aosmith.com rockwellautomati on.com aosmith.com rockwellautomati on.com com Charles Jeremiah Smith Charles Boyd Asahel Finch, Jr. and William Pitt Lynde Dudley Godfrey and Jerry Kahn David Gruber Michael F. HupyEdward G. Ryan hupy.com michaelbest.com Lynde Bradley and Stanton Allen Charles Jeremiah Smith Charles Boyd Carlyle Weinberger ashleyfurniture. Lynde Bradley and Stanton Allen Harry V. Quadracci Harry James Ruben League The Junior of Wisconsin Herman Wittwer John Johnston northwesternmut William R. Bagley 1978 1857 1925 1962 1874 1842 1957 1984 1969 1848 1903 1847 1874 1903 1847 1984 1947 1894 1907 1907 1927 1903 1978 1974 1945 1990 MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. Milwaukee Superior Milwaukee Milwaukee Chicago Milwaukee Superior Milwaukee Madison Milwaukee Milwaukee Milwaukee Sussex Milwaukee Milwaukee Milwaukee Milwaukee Milwaukee ) Arcadia Madison Madison ELETE D OT OT N O (D INAL INAL .F EM anufacturing and Engineering AppvionAshley Furniture Industries Allen Bradley Appleton Allis ChalmersAmsoil Milwaukee AO Smith Appvion Appleton Hupy & Abraham, S.C. Michael Best Quarles & Brady Allen Bradley Allis ChalmersAmsoil Milwaukee AO Smith M3 Insurance Northwestern Mutual DeWitt, & Ross Stevens Foley & Lardner, LLP Godfrey & Kahn Gruber Law Offices LLC Quad Med Quad Shopko Pharmacy Care Aurora Health Green Bay of Blood Center Wisconsin Children's Hospital of Wisconsin Acuity InsuranceAmerican Family Sheboygan Insurance 7. S 7. 96 Law M 40672-mqi_22-1 Sheet No. 50 Side B 05/20/2019 14:43:36 B 05/20/2019 50 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 51 Side A 05/20/2019 14:43:36 97 m m 9/21/2018 1:50 PM us.kohler.com manitowoccranes .com mercurymarine. com newplasticscorp. com hydrite.com kapcoinc.com ki.com us.kohler.com manitowoccranes .com menashacorpor ation.co mercurymarine. com newplasticscorp. com oshkoshcorporati on.com plenco.com rexnord.com ritehite.com snapon.com trane.com trekbikes.com trombetta.com uline.com ki.com badgermeter.com bradycorp.com evcoplastics.com falk.rexnord.com gbp.com huscointl.com menashacorpor ation.co harley- davidson.com com com briggsandstratton .com John Michael Kohler Harry SorefElisha D. Smith masterlock.com Irvin Vincent Warren JohnsonTom Kacmarcik Sr johnsoncontrols. Al Krueger John Michael Kohler Harry SorefElisha D. Smith masterlock.com Irvin Vincent Frank G. Brotz Samuel C. Johnson scjohnson.com Al Krueger Carlyle WeinbergerCarlyle ashleyfurniture. BemisJudson Moss Will H. Brady bemis.com and Stephen Briggs Harold Stratton Alfred Mellowes chartermfg.com Don Evans William S. Harley, Arthur Davidson, and Walter Davidson Agustin Ramirez, Jr. 1988 1939 1939 1968 1902 1902 1934 1968 1929 1921 1941 1921 1941 1933 1885 1892 1965 1905 1905 1914 1908 1903 1985 1976 1917 1920 1948 1936 1892 1980 1945 1972 1849 1849 1858 1858 1873 1873 1886 Racine Milwaukee Chicago Luxemburg Milwaukee Milwaukee Auburn Milwaukee Milwaukee Milwaukee Neenah Milwaukee Milwaukee Mequon Deforest ) Luxemburg Arcadia Green Bay Grafton ELETE D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT N O (D INAL INAL .F M K EM C Y New Plastics Corp. SC Johnson Snap-onTraneTrekTrombetta Kenosha Uline KI Piscataway, NJ KohlerManitowoc Cranes Waterloo Manitowoc Master LockMenasha Corp Kohler Green Bay Oak Creek Mercury Marine Neenah Fond Du Lac Manitowoc Cranes Manitowoc Master LockMenasha Corp Oak Creek Mercury Marine Neenah Fond Du Lac New Plastics Corp. Oshkosh Corp.Plenco Oshkosh Rexnord Rite Hite Sheboygan Falk Corporation Green Bay Packaging Corp. Harley-Davidson HUSCOHydrite ChemicalJohnson Controls Brookfield KAPCO Metal Waukesha Shaping KIKohler Kohler Green Bay Ashley Furniture Furniture Ashley Industries Badger Meter Bemis Brady Corporation Briggs & Stratton Charter Manufacturing Evco Plastics 7. S 7. 2018] 40672-mqi_22-1 Sheet No. 51 Side A 05/20/2019 14:43:36 A 05/20/2019 51 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 51 Side B 05/20/2019 14:43:36 M K C Y m [Vol. 22:1 22:1 [Vol. 9/21/2018 1:50 PM boucher.com florsheim.com jockey.com corporate.kohls. com mercurymarine. com newplasticscorp. com oshkoshcorporati on.com plenco.com rexnord.com ritehite.com snapon.com trane.com trekbikes.com trombetta.com uline.com jnlcom.com qg.com allenedmonds. com ashleyfurniture. com bergstromauto. com oshkoshcorporati on.com plenco.com rexnord.com ritehite.com snapon.com trane.com trekbikes.com trombetta.com uline.com ki.com us.kohler.com manitowoccranes .com ation.co Max Kohl Irvin Vincent Frank G. Brotz Samuel C. Johnson scjohnson.com Alex Haley Frank G. Brotz JohnsonSamuel C. scjohnson.com Al Krueger John Michael Kohler Harry SorefElisha D. Smith masterlock.com menashacorpor 1917 1988 1988 1956 1962 1922 1939 1988 1968 1902 1934 1934 1941 1921 1892 1965 1892 1965 1976 1976 1892 1917 1920 1920 1920 1980 1980 1945 1974 1974 1849 1873 1886 1886 1886 1971 MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. Glendale Milwaukee Milwaukee Racine Milwaukee Chicago Franklin, TN Sussex Luxemburg Milwaukee Milwaukee Racine Milwaukee Chicago ) Neenah Falls Mequon ELETE D OT OT N O (D INAL INAL .F EM Allen Edmonds Shoes Ashley Furniture Arcadia Bergstrom Automotive Boucher Automotive Florsheim Shoes Jockey International Kenosha Kohls Corporation Menomonee Rexnord Rite Hite SC Johnson Snap-onTraneTrekTrombetta Uline Kenosha NJ Piscataway, Waterloo Journal Communications Quad Graphics KIKohlerManitowoc Cranes Manitowoc Master LockMenasha Corp Kohler Green Bay Oak Creek Mercury Marine Neenah New Plastics Corp. Du Lac Fond Oshkosh Corp.Plenco Oshkosh Sheboygan Oshkosh Corp.Oshkosh Plenco Oshkosh Rexnord Rite Hite SC Johnson Snap-on Sheboygan TraneTrekTrombetta Uline Kenosha Piscataway, NJ Waterloo Retail Printing, Publishing and Communications 7. S 7. 98 40672-mqi_22-1 Sheet No. 51 Side B 05/20/2019 14:43:36 B 05/20/2019 51 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 52 Side A 05/20/2019 14:43:36 99 9/21/2018 1:50 PM schneider.com delongcompany. com alcaminow.com sigmaaldrich.com mycarmex.com covance.com cray.com epic.com nimblegen.com promega.com rockwellautomati on.com airwis.com freightrunners. com lake-express.com nmtransfer.com menards.com fleetfarm.com pacific-cycle.com shopko.com marcuscorp.com mlb.com/brewers nba.com dohmen.com Seymour Cray Friedrich W. Dohmen Gary ComerGary landsend.com James Ruben 1997 1975 2009 PA 1972 1935 1962 1858 1903 1985 2004 1935 1964 1968 1962 1963 1963 1978 1965 1955 1999 1977 1937 1964 1913 1979 Milwaukee Milwaukee Neenah Conshohocken, Milwaukee Madison Milwaukee Milwaukee Milwaukee Wilmington, NC Saint Louis, MO Dodgeville Madison ) Clinton Franklin Green Bay ELETE D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT N O (D INAL INAL .F M K EM C Y Air WisconsinFreight Runners Express Appleton Lake Express N&M Co., Transfer Inc. Schneider NationalThe DeLong Green Bay Company Covance CrayDohmen Epic SoftwareNimblegen/Roche Promega Verona WA Seattle, Rockwell Automation Fitchburg Marcus Corp Milwaukee Brewers Milwaukee Bucks Milwaukee Alcami (AAIPharma Services and Cambridge Major Laboratories) Aldrich Chemicals Carma Labratories, Inc. Land's End Land's MenardsMills Farm Fleet Pacific Cycle Appleton Shopko (Retail) Pharmacy (Includes Eau Claire info) Transportation (rail, trucking, air, water) Transportation (rail, trucking, air, 7. S 7. 2018] Sports, Hospitality, and EntertainmentSports, Hospitality, Technology and Biotech Technology and 40672-mqi_22-1 Sheet No. 52 Side A 05/20/2019 14:43:36 A 05/20/2019 52 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 52 Side B 05/20/2019 14:43:36 s M K C Y [Vol. 22:1 [Vol. place 9/21/2018 1:50 PM etwork ehavior- Virtual PopulationCompas market Prostate Cancer screening test MIPS Accelerator e-prescribing network ConsortiEX b ADHD Clinic Radixact- TomoTheray Fertility Finder N Consulting Scally-My Easy Weight app-The challenge to change BluDiagnostics digital healthcare- focused seed fund The Super Option The Super PopulationManager - GrandCare System Extract Systems Platform Platform Charlie m m m p.com luetreenetw ludiagnostics. ork.com com gregordiagno stics.com healthefilings. com healthxventur es.co consortiex.cco easywayto health.co envisionadhd. com extractsystem s.com forwardhealth grou grandcare. com accesshealthn et.co accuray.com CyberKnife- b b nggroup.com com datica.com IT service ensodata.io EnsoSleep Tobias Zutz Robert Hopton Jonathan Baran healthfinch. Mark Bakken Joe Reinardy centerx.com Neal Long Travis Good, MD, and Mohan Balachandran, Renato Romani Chris Fernandez Jacob Behrens Rasmussen Michael Barbouche Eric Haberichter Joshua H. Levine Sarah Katherine Brenner Jeremy Schwach Rachel Neill carexconsulti David APPENDIX—TABLE 2 2016 1990 2005 2016 2013 2014 MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. 2009 2011 2015 2015 2015 2012 2016 2009 2013 2015 ) ELETE D OT OT West Bend West Madison Madison Milwaukee Madison Milwaukee Milwaukee California Madison N Madison Madison Madison Madison Madison Madison O (D H INAL INAL .F EM Name HQ Year CEO Website Product Forward Health Group GrandCare Gregor Diagnostics Health Eflings HEAL THFINC Healthx Ventures Easy Way to Health Ensodata Madison Envision ADHD Clinic Extract Systems Bluetree Network Carex Consulting Group Centerx Madison Consortiex Datica Madison Access HealthNet Accuray Blue Diagnostics 7. S 7. 100 40672-mqi_22-1 Sheet No. 52 Side B 05/20/2019 14:43:36 B 05/20/2019 52 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 53 Side A 05/20/2019 14:43:36 101 9/21/2018 1:50 PM Swallow Strong Diagnostic test CarePaths B60 VelociDoc ReadyList Remedy Technology and Technology Services Solution intellivisit app Moxe’s clinical data CareSelect Imaging MicroC3 clinical research Propeller - Reconcile - - Reconcile Persist Data services Redox Platform (healthcare data exchange solution) assistants (IVA) om pport.com om ropellerheal racticevelocit th.com y.com swallowsolution s.c taidiagnostics. com wellbe.me nobo.io oaxhealth.com p ushealthcenteri nc.c p readylist.com remedyanalyti cs.com speechtails.com SpeechTails hps.md lynxbioscienc es.com mpirik.com nationaldecisio nsu al.com com com com Mardini Spauldingspauldingclinic Frank Langley Joy Casterton valianthealth. James Dias Sanjay Mohan mynest.care healthio Erich JacobsDavid Stern onkol.net OnKöl David Van Sickle Luke Bonney redoxengine. Scott Martin Aamir Siddiqi remedynow.net Health service Randy Amy Reno Sal Braico highfiverx.com Prioritize - Predict Jay Fulkerson Norrie Daroga idavatars.com Intelligent virtual Jeff MillerDr. Chorom intellivisit.com Pak Dan Wilson moxehealth. Michael 1998 2010 2012 2013 2002 2010 2007 2015 2011 2015 2012 2016 2015 2005 2014 2016 2009 2014 2012 2014 2013 2013 2013 ) ELETE D CELEBRATING WISCONSIN ENTREPRENEURS ENTREPRENEURS WISCONSIN CELEBRATING OT OT Elm Grovesconsin Madison Eric Horler Milwaukee Park Milwaukee Madison Milwaukee Milwaukee Milwaukee Milwaukee Waukesha Madison Milwaukee Machesney Milwaukee N Delafield Madison Bend West Madison Madison O (D Inc. INAL INAL .F M K EM C Y Wellbe Madison Remedy Now Spaulding Clinical Research, LLC Speechtails Swallow Solutions TAI Diagnostics, Inc. Valiant Health Velocity Predictimed /US Health Center, Propeller Health ReadyList, Inc. Redox Madison Remedy Analytics Moxe mpirikNational Decision Milwaukee Support Company nestCARE Inc. Nobo Oax Health ONKÖL Practice Highfive Health Hps Idavatar Mequon Intellivisit Lynx Biosciences 7. S 7. 2018] 40672-mqi_22-1 Sheet No. 53 Side A 05/20/2019 14:43:36 A 05/20/2019 53 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 53 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 9/21/2018 1:50 PM APPENDIX—TABLE 3 MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ) $85,156 $57,735 $85,156 $57,735 $53,128 $15,835 $167,860 $125,036 $167,860 $125,036 $88.191 $43,715 $178,435 $146,428 $178,435 $146,428 $77,719 $52,580 $60,167 $52,110 $60,167 $52,110 $21,864 $15,356 $31,688 $39,795 $21,106 $13,133 $31,688 $39,795 $31,688 $21,106 $13,133 ELETE D Hemorrhage & Shock Pain Failure OT OT N O (D INAL INAL .F EM Harbor–UCLA Medical Center Los Angeles Community Hospital Sherman Oaks Hospital Sherman Oaks Hospital Garfield Medical Center Cedars-Sinai Medical Center 7. S 7. 102 Hospital Hospital Brain Failure Heart Chest Kidney 40672-mqi_22-1 Sheet No. 53 Side B 05/20/2019 14:43:36 B 05/20/2019 53 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 54 Side A 05/20/2019 14:43:36 Easels of 104 105 107 109 111 115 119 122 Democracy (with Simone 11/5/2018 12:06PM (1996), Art as Unlearning Makings of the Sea . ALLACY OF F Kenneth Wain (2009); * (2014) and .” ...... 112 (With Raphael Vella, 2013), Post-Marxist Marxism RT AND THE : A John Dewey OMETHING ALDACCHINO ADE ...... S B M LEVATE ...... Education Beyond Education E OING OHN Encyclopedia of Art & Design Education Encyclopedia of Art & Design LLEGITIMACY J TO I , “D LEGITIMATION LEGITIMATION (2002); ) AND THE Mediterranean Art Education Mediterranean Art EGITIMATION ...... , AND ELETE L D ” USTIFY EMARKS ...... J ONFLICTS ...... REATIVE OT OT R (2012), CT N C C LLEGITIMACY ...... O AKING TO A (with Kenneth Wain,(with 2013), I PACES ...... , (D INNOVATION IN WISCONSIN: WISCONSIN: IN INNOVATION S , M Avant-Nostalgia RUTH ...... INAL INAL T .F S IGHT TO ROPRIETARY ’ XCUSE AKER P R OING AN E REATIVE Art’s Way Out (1998), AKERS RT ONCLUDING * Professor and Director, University of Wisconsin–Madison’s Arts Institute. He was faculty O EGITIMIZING OPEN SOURCING INNOVATION ARTICLES ARTICLES INNOVATION SOURCING OPEN HE THE RIGHT TO CREATIVE ILLEGITIMACY: TO CREATIVE ILLEGITIMACY: THE RIGHT M K ART AND THE FALLACY OF PROPRIETARY FALLACY OF ART AND THE ALDACCINO C Y 8. B 8. V. T IX. C Without Confession Galea Duncan Mercieca,and 2014). Three books are forthcoming in 2018 including and (Routledge) and a monograph on Ivan Illich (Peter Lang). He is the editor of Histories Philosophies, The Wiley Blackwell’s (2010); in the Universities the Dundee (Scotland), in of Falmouth (England), Columbia Robert (New York), Gordon (Scotland), and Warwick He is the author of (England). VII. C Utopia II. L I. T III. A IV. M VI. “D VIII. M 40672-mqi_22-1 Sheet No. 54 Side A 05/20/2019 14:43:36 A 05/20/2019 54 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 54 Side B 05/20/2019 14:43:36 M K 12 C Y shown [Vol. 22:1 [Vol. ANGUAGE OF THE L 11/5/2018 12:06PM . ALLACY OF ALLACY ROC F 5 § 2.17–2.174 (C.K. , 57 P HILOSOPHY OF P RT AND THE RT AND HILOSOPHICUS P : A 2 SSAY IN THE 1 95 (T. McCarthy trans., Beacon Press 1975) OGICO E L EGITIMATION N . Legitimacy implies a degree of L RISIS : A C CTS to groups and individuals who, in being to groups and individuals who, A RACTATUS LLEGITIMACY I , T PEECH 1, 6 (1956). legitimation , S EGITIMATION ROPRIETARY Legitimationby which is the action legitimacy is or ) P 3 , L ERIES note 1, at 95–96. note 1, at represents and S A Plea for Excuses: The Presidential Address REATIVE MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE , EARLE C D In terms of images, by which we mostly make art, the S ITTGENSTEIN EW OT OT 4 W supra N , N , USTIN OHN ABERMAS O Y ’ H , J (D L. A OC UDWIG S IGHT TO IGHT INAL INAL L R legitimacy .F ABERMAS OHN ÜRGEN See, e.g. See HE When we speak of the arts, and morewith the arts so when one engages the arts, of speak When we 2. J 1. J 3. 5. 4. H To start with, one needs to understand and find a way of differentiating To start with, one needs to understand “As of assertions, is not a name for a characteristic ‘truth’ so ‘freedom’ the name of a a characteristic of actions, but is not a name for assessed.” actions are dimension in which “[T]he norms in accordance values and motives are formed with which with truth.” relation have an immanent — Excuses” Langshaw Austin, “A Plea for John — Jürgen Habermas, Legitimation Crisis This raises an immediate question: is legitimacy a gift that is expected from I. T ALDACCINO RISTOTELIAN 8. B 8. (1973). (1970). recognized as sources of legitimacy, are then ready to give it. in termsof what it process of being justified and verified, and moreprocess of being justified and verified, so, in terms of a manner by which process of legitimation a comes forth, emerges from that which is others? In turn, this could imply that as recipients of this gift, human actions have a value that is to so as represent only gain the validity of what they identifiable with forms of legitimation established outside them. Values that immediately come to mind, when the arts are presented within this realm of legitimacy, would aesthetic, pedagogical, social, and include those moral A 104 conformity, with the law, agreed rules, or a grammar whether it is of speech, practice, and procedure. Ogden trans., Routledge 1981) (1981). Ogden trans., Routledge 1981) as a practitioner in their various contexts, the questions of legitimacyin their various contexts, the questions as a practitioner and legitimation spans across a wide take a very different turn. This horizon, whether it is that of art-makingshowing in the gallery; of in the studio; of in schools, learning and unlearning performingteaching, in the hall; or of universities. colleges or between could be claimed. 40672-mqi_22-1 Sheet No. 54 Side B 05/20/2019 14:43:36 B 05/20/2019 54 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 55 Side A 05/20/2019 14:43:36 , , . to 4–5 9 105 , Ann ADISON (Aug. 17, (Aug. 17, ISCONSIN -M W Advocacy, ROVISION P 11/5/2018 12:06PM RTS ISCONSIN 49–79 (2017). ISCONSIN W W RTS Arts Wisconsin OF RACTICE AND , A REATIVE ’s portal, A ID=2138B72B-84FF-4FD7- . The latter seems to have The C , P 6 NIV U EING B 11 RINCIPLES First steps: A new approach for First steps: our schools A new ONFLICTS , : P Arts Wisconsin C OWER OF P 77–81, 92–95 (2001). 77–81, 92–95 HE CHOOLS 343–56 (2013). S , : T NDUSTRIES I ALUE RT Arts on Campus, , the Board President of V A INDS justified by socio-economic by justified metrics are now that RTS IN M EGITIMIZING , which is of of the division arts at Wisconsin-the University the RITISH A 10 B UR RT AND HE and O ) II. L , A THROUGH , T . What Creative Industries? Instrumentalism, Autonomy and the Education Autonomy Instrumentalism, Industries? Creative What ELETE Advocacy, Community, and Arts Wisconsin , https://artsinstitute.wisc.edu [https://perma.cc/R859-5RNM] (last visited UT OF D ICKIE DUC OT OT RIGHT TO CREATIVE ILLEGITIMACY ILLEGITIMACY CREATIVE TO RIGHT , O E D Making such a case implies of contexts. They span a variety N OBINSON 8 O OF The Arts Institute R (D J. NSTITUTE EN L I EORGE ONFEDERATION OF ’ K OBINSON INAL INAL G C NT R .F RTS See See See EN , 9 I 7 10. A few examples in Wisconsin include 6. John Baldacchino, 8. 7. 9. 11. Ann Huntoon, This falls in line with a national and more widespread international This state of affairs has had a strong impactThis state of affairs the language of artistic on In her inaugural blog of Augusttitled this year, aptly M K ALDACCINO C Y 8. B 8. of Artists 2017), http://www.artswisconsin.org/advocacy-community-and-arts-wisconsin/ [https://perma.cc/M4 2017), http://www.artswisconsin.org/advocacy-community-and-arts-wisconsin/ [https://perma.cc/M4 2017). AQ-VDPP] (last visited Oct. 6, from from the case for the arts in education, primary to tertiary education, Community, and Arts Wisconsin are indispensable. thing—the arts one can all agree on that “we states Huntoon, There’s no doubt that music heals, that making art is a panacea, that together.” us experiencing art with others brings legitimation, especially where turn on norms there has been a significant and categories that many benign in making accept as being helpful and therefore a case for the arts. 2018] linked so-called culture to the creative and industries. categories fromcategories which alwaysone could assumptions. set of a political glean often sustained These are Oct. 6, 2017), whose arts portal, that of funding the arts in the community,that of funding the frombetween the sources that range state and the private sectors. (1982); K completed of legitimacy, the circle where not simply the arts are seen, but from to justify their existence expected tangible, and to that are perspectives voice institutional which increasingly and the arts is the often actively, of giving assent. (last visited 27 April 2018) http://www.cbi.org.uk/index.cfm/_api/render/file/?method=inline&file 9AFFC01BED033137 [https://perma.cc/W72Y-UQWU]. http://www.artswisconsin.org [https://perma.cc/9EPF-K55V] (last visited Oct. 6, 2017), and indeed http://www.artswisconsin.org [https://perma.cc/9EPF-K55V] my own institution, https://arts.wisc.edu [https://perma.cc/9W4W-69BZ] visited Oct. 6, 2017), serves as the unified (last but as gateway to the arts in our university and the community. This is just a drop in the ocean, extent have common interests, they and to an institutions that both share the same terrain of interest specific categories of on articulated clearly has become very of a narrative a quick illustration provide legitimacy. Madison, A 40672-mqi_22-1 Sheet No. 55 Side A 05/20/2019 14:43:36 A 05/20/2019 55 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 55 Side B 05/20/2019 14:43:36 , 12 M K OF . C Y IB ATIONS 2 L Here N 18 [Vol. 22:1 [Vol. 11/5/2018 12:06PM EALTH OF W 291 (2014). available online at available online Art’s Asymptotic Leadership: NQUIRY I AUSES OF THE C . ISUAL , 3 V ATURE AND N 202 (1958) 17 note 6; John Baldacchino, 14 supra has anything to do withart’s polity, not to mention has anything XPERIENCE “My mother’s father was in Illinois, a cattle rancher E 13 ) 15 NQUIRY INTO THE I my comfort zone, and never imagined that these things MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. RT AS N ELETE note 11. D Baldacchino, , A , A OT OT are N supra O 2, at 30 (New Rochelle NY, Arlington House at 1966), 2, MITH 30, http://www.econlib.org/library/Smith/smWN13.html [https://perma.cc/5UE6- EWEY (D S D INAL INAL . . . DAM .F OHN HAPTER Id Id Id See generally IBERTY Being introduced to the work of Ruth Stolle, an artist from Tripoli, IV, C 17. 18. 16. 15. Huntoon, 12. 14. J 13. A . & L 16 Before adding this personal note, Huntoon states how she “began to Before adding this personal note, Additionally, this implies sphere, where the arts administrator a personal Yet one must engage in this scenario tend to while hastily add that actors ALDACCINO OOK CON 8. B 8. Arts leadership, Education and the Loss of Autonomy weren’t a part of everyone’s lives.” Wisconsin, her father, Huntoon describes by how her family “spent afternoons at [Stolle’s] home, amidst her hundreds of sketches, paintings, and stacks of books. We in our home. had several of her paintings hanging The ideals of these experiences approach to the arts, and I would own up to partaking in the same in up to partaking own and I would arts, to the approach debate. understand that the role of being an arts advocate meantunderstand that the role of being that the first requirement was the ability to step way outside of my comfort zone.” recalls her own intrinsic relationship with art-making, as Huntoon does when recalls her own intrinsic relationship she speaks of her comfortwhich she felt that she had to exit once she zone, became an arts advocate. E 106 myselffind using not, I or would agree that whether I to accept have so, I More the sameto put my narratives a wider in the door of foot constituencies set of arts matter. why the need help to understand that often should add, that Yet I a source of discomfort,this is also which leaves often me as highly critical well of the law of risk falling foul we can afford to over whether as skeptical whether Adam not knowing exactly unintended consequences, Smith’s hand” infamous “invisible RBNZ]. B its inherent economy. its inherent but spent the winter months in a room in the farmhouse, painting landscapes in farmhouse, painting in the in a room the winter months but spent oil.” and use this language, not everyone keeps on the same not everyone keeps on the and use this language, legitimizing hat engagementthroughout one’s is a caveat to this narrative, with the arts. There and it is made with some apparent contradiction force. This has to do with the brings to play immediately their use, whichand value intrinsic between the arts’ Dewey the “quality calls one’s ownJohn what existential experience of the arts, whole, which is larger, all-inclusive to the of being a whole and of belonging the universe in which we live.” 40672-mqi_22-1 Sheet No. 55 Side B 05/20/2019 14:43:36 B 05/20/2019 55 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 56 Side A 05/20/2019 14:43:36 107 CLIPSE , E the total 24 However, However, 20 21 art—it is not 11/5/2018 12:06PM ORKHEIMER qua H AX Though this comes with the 22 note 8. , at xxxi (1995). , at xxxi 23–38 (2010). supra RT RUTH , A T S ESTHETICS ’ A RT NDUSTRIES I ECESSITY OF UIDE TO III. A N , G RITISH HE The “comfort zone” becomes if not unsatisfactory, ) B , T 23 ROCE C ELETE note 11. D ISCHER OT OT RIGHT TO CREATIVE ILLEGITIMACY ILLEGITIMACY CREATIVE TO RIGHT F N supra O (D ENEDETTO RNST B E INAL INAL . ONFEDERATION OF .F 7–11 (1974). See Id See 24. C 22. 19. 20. See, for example, his discussion in M of reason and subjectivity 21. 23. Huntoon, 19 We with the arts happen by dint broadly agree that our diverse encounters Let us begin with the relationship between truth and legitimation. Reading Huntoon’s words conflicting forms capture these of legitimation, which EASON M K ALDACCINO R C Y 8. B 8. the question of arts’ legitimacy from context the within which Jürgen Habermas positions values and norms within an accordance sought from specific of values that bridge practice with affectation, use with need. of values that bridge practice with eclipse of the arts’ unique formseclipse of the arts’ by which in their of action and reasoning, complex histories, human their sense of beings have found ways of retaining being. autonomytheir ways of knowing and more in both of so, those insufficient, to those legitimating mechanisms that and institutional narratives arts by neatly locating themexpress the need to categorize the within a institutional use, thus spanning to taxonomy that ranges from aesthetic affect criteria. between inherent-immanent and extrinsic-instrumental sets of externalizing these values from both art’s immanence and the existential results in a completeactuality of arts practice, invariably failure to secure any working consensus around the meaning of art. and dialogue—whichof aesthetic understanding suggests, as Huntoon territory is a “comfort zone” for those who make partake in art and some may well not regard as such, but which here I want to dwell upon, if only only if to dwell upon, want I which here as such, but regard well not some may weto argue that unless remainaware the arts of such a conflict, the case for may well be impaired that risks slotting the arts into by a degree of confusion legitimation.static categories of that wouldthe add detrimental I effect of such two would mean a rigid categorization increasing things: (a) the instrumentalization of the arts which in a detachment results between art- making and arts institutions, and (b) paraphrasing Max Horkheimer , 2018] she highlights a play betweenshe highlights two forms legitimation: of personal intrinsic, an engagementif not existential, withon the art-making, verging and an extrinsic, instrumental, becomes by which one sphere of activity for the an advocate arts. OF always the case when another approach to the arts requires that an external always the case when another approach sphere comes into play. 40672-mqi_22-1 Sheet No. 56 Side A 05/20/2019 14:43:36 A 05/20/2019 56 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 56 Side B 05/20/2019 14:43:36 in M K C Y 33 30 one one of the 25 See also and after (1979). [Vol. 22:1 [Vol. IMITS TO 29 AND 11/5/2018 12:06PM , L (1957). H EFT LLICH L I 32 ROWTH G Here we are directed Here we are directed VAN systematic aspect 28 ENTAL 40–44 (2000). M going on to state (again, with state going on to SSAYS FOR THE 31 EALTH : E H 15–18 (2000); I REATIVE AND NOWING K 27 , C N ROFESSIONS , O P XPROPRIATION OF E RUNER OWENFELD note 1, at 95. note 1, at B L ) THE ISABLING and learning. , note 1, at 95. note 1, at , D MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. supra 26 ELETE IKTOR , EROME D V J supra OT OT EMESIS , LLICH N I N O note 1, at 95. (D ABERMAS VAN I H INAL INAL EDICAL . . . 97. . at ABERMAS .F supra See See generally Id See Id Id Id See generally , : M 30. 31. 32. 33. 25. H 27. 28. 29. 26. While this seems to confirm a gulf between Habermas’s context and that of betweena gulf that of Habermas’sand confirmthis seemsWhile context to This relation to truth must be presumed to exist if one regards as musttruth to exist if one be presumed This relation to It is broadly agreed that unlike those competingIt is broadly agreed that unlike those approaches by which one Given that Habermas’s art, but political systems and their concern is not possible a motivation crisis, resulting frompossible a systematic scarcity of the resource of “meaning.” grounds for a disappearance Non-contingent of legitimacybe derived only from can, that is, an “independent”— that is, truth-dependent— evolution of interpretive systems that society. systematically adaptive capacity of restricts the ALDACCINO EDICINE ABERMAS 8. B 8. the arts, would I argue that taking the formation of motives from the immanence of art’s truth would reveal an interesting parallelism, especially when later he truth,” legitimationto “relation of dwells on the reference to socio-economic systems) the following: reference to socio-economic systems) the the arts we a very different scenario. find In fact, any attempt to categorize the formationsof motives imply that an “immanent with relation truth,” attempts to legitimizeequally complex fields such as health or education, legitimacy, whereordering he this to an the major relates moralplayers include and linguistic systems of rationality and legitimation. M 108 H would need to clarify the relationship that the arts play with formation the of relationship that to clarify the would need truth. their immanence,motives, the nature of by and what we mean Borrowing from developmental Piaget’s Habermas approach, attributes motives to norm systems is something controls, which and behavioral that developmental in their to and elaborated referred the arts have often interested in psychologists theories of knowledge to a systematic aspect of how a moral and empirical ordering relates and competes in the structuring of a motivational formation; which is why this “only a context where Habermasfocus on seeks to truth relation of factually valid normstruth relation of factually is of interest,” and values which he goes on to discuss Max Weber’s concept of legitimate authority. which Max he goes on to discuss Weber’s concept of legitimate 40672-mqi_22-1 Sheet No. 56 Side B 05/20/2019 14:43:36 B 05/20/2019 56 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 57 Side A 05/20/2019 14:43:36 109 ART ± 5–9 (1986) Neither an Neither 37 . 55–71 (2015) RT 11/5/2018 12:06PM 34 35 A DUC E OF (2002). : J. ADE M note 12, at 297. note 12, at ISYPHUS ESTHETICS (2004), I have discussed at length this A , 3 S supra , ISENFRANCHISEMENT OF D AND THE , ELATIONAL , R AKING 91–92 (2012). UT , M HILOSOPHICAL O P Malaise dans l’esthétique OURRIAUD AY HE B W ) , T AKERS S ’ note 1, at 95. note 1, at Art’s Asymptotic Leadership RT ELETE ICOLAS ANTO D N D , A supra IV. M OT OT RIGHT TO CREATIVE ILLEGITIMACY ILLEGITIMACY CREATIVE TO RIGHT , N O (D nor is it a question settled on a precariously cobbled up settled on a precariously cobbled nor is it a question RTHUR A Baldacchino, 36 INAL INAL we are not absolved from its definition, especially when the claim . ABERMAS .F See ALDACCHINO See Id See generally 39 is central to any discussion over the legitimacy of art. legitimacy the discussion over to any is central we If are to speak B 38 35. 36. 34. 37. 38. H 39. After Jacques Rancière’s OHN I would argue that Habermas’s in how “the values and norms interest in It appears that there is no last word on how the arts are played in the is no last word on how the arts It appears that there A number of questions cannot be avoided. Whatimmanence? is art’s What It seemsThese questions leave us perplexed. that in trying to understand M K ALDACCINO C Y 8. B 8. EDUCATION: The Paradox of the Ventriloquist’s Soliloquy approach of developmentalapproach sociology in the pedagogy or as found hierarchies (even the arts withinpolity a positions that a philosophical approach of art, nor network of uncomfortable and less so a precariously), assertive) forms (yet of have managedadvocacy, to comprehensively motivational identify the truth. formation by which art’s immanence would legitimize art’s and J suggestion of art’s two moments, or indeed forms of immanence in John Baldacchino, suggestion of art’s two moments, or indeed forms of immanence in John Baldacchino, accordance with which motives are formed have an immanent relation with truth” of immanence, whether assumed one instance or in art’s claim in to a double iteration, complex ways of human is some living. This is not because there intent on make fromdisinterested arrogation the arts and who somehow those who the claimexclude, on purpose, to meaning. Far from it. Arts will practitioners modesbe the first to seek of legitimation, particularly when they themselves need to claim the legitimacy own of their which existence as artists, appear external to them. morehas to do withreferring am to which The impossibility I art’s very own immanence, domain can neither be reduced to a which of philosophy, 2018] hermeneutic ground of relational mechanisms that refuse definition. hermeneutic relational mechanisms ground of that refuse at stake is a legitimation that is posed on art’s truth. at stake is a legitimation that is posed on art’s Whatdoes it portend when we speak of it? we exactly making are reference to when we claim art’s immanence relates to art’s truth? Does as that which art’s truth only depend on art’s immanence?Could art’s truth be externally non-art? construed? Could it be attributed via art’s immanence from how it relates to the truth—i.e., its own truth—there is arts in formsarts legitimation of be elusive. to has proven and use, (critiquing such attempts to do so). 40672-mqi_22-1 Sheet No. 57 Side A 05/20/2019 14:43:36 A 05/20/2019 57 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 57 Side B 05/20/2019 14:43:36 M K C Y supra , UT O [Vol. 22:1 [Vol. AY 11/5/2018 12:06PM W of art, we must RTS things the same as , A truth makes ALDACCHINO that art note 39; B note 39; supra , 40 appears as immanent; the work of art as that which appears as immanent; as that the work of art ) ? Is the making same the as the made? Do they belong, MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D making art ART ±EDUCATION OT OT N by O (D INAL INAL .F appears as external, though the work of art is a manifestation of the art 40. Baldacchino, To the first question of equivalence, one would be quick to answer in the of equivalence, one would be quick To the first question Art as an act of It is importanthow integrity is iterated at least to clarify twice: (i) by means It is still problematic to claim that what legitimizesproperties the integral As in the approach to art’s truth, the work of art remains a relation to art between maker,Forgetting this relational approach making, and the made things made ALDACCINO made 8. B 8. negative: No, the act of makingnegative: No, the is not the same that this action as the object made. But then, when one comesthe to are immanentinterior properties that to the making made, and the relationship? could we do without their inherent Are not we speaking of two forms of immanence, or perhaps an immanence that has two or more facets? is that made it. feel better, of art as an act of making When that helps us speak we or as a making that is a method by a businessperson which could be borrowed art? thinking of new strategies, are we still speaking of of the integrity of the action of legitimation and (ii) through the integrity of art approach art through its own that to to say This is in terms of its truth. note 39. or indeed could they relate, to the truth of art? Are they the truth of art? relate, to the truth of art? Are they or indeed could they ascertain its “location,” though such an argument begins to confuse the role of such an argument its “location,” though ascertain confuse the role of begins to that of poetic of an action: collective designation with art as a art as a noun making. of art, even value equate with the proprietary simply This truth cannot when often this claim would flag up immediately notions integrity gained of an true. from only belong to that which we call identifiable properties that could of art is the same Is the as its appropriation. nothing gained in sustaining a convincing way of evaluating the arts by their arts by their the evaluating way of convincing a in sustaining gained nothing value. proprietary the is because if This to speak of we are the 110 itself. Art that It is therefore this inherence inheres in the objects that it makes. relates art’s immanence to its truth. The norm and value systems that we often process of art-making,impose on art are not exerted on the product, but on the the making,of art. the work in inheres whatcomes from counter-critique a Yet these works, which is the art that made them and therefore the person or the place. human drive that motivated of making the act a work of art in the first will ultimately miss out, forgo, and undermine art’s truth. However, it seems characterize art’s truth in the integrity by that the agency that is expected to which we claimby which and tautological cycle the reflexive it cannot escape which art is approached becomeart’s own agency and the agency by one and the same thing, or perhaps ultimately have to belong to the same cycle. 40672-mqi_22-1 Sheet No. 57 Side B 05/20/2019 14:43:36 B 05/20/2019 57 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 58 Side A 05/20/2019 14:43:36 , 111 locate (and the ), which is ), which 11/5/2018 12:06PM le propre . art pour l’art to explain art as a matter to explain art but also, LEVATE E 42 excuse 43–45 (Hackett Publishing, 1987). 43–45 (Hackett Publishing, TO , note 39. note 39. and returned to art, is also partaking and returned to art, is also partaking supra implies: supra , UDGMENT USTIFY , J J 44 UT O TO , AY partaken W Resorting to the French wordResorting to the French 43 S RITIQUE OF ’ 41 , C XCUSE RT ) E , A the proprietary ANT O ART ± EDUCATION K ELETE D OT OT RIGHT TO CREATIVE ILLEGITIMACY ILLEGITIMACY CREATIVE TO RIGHT V. T N ) we will find someor at the very least valuable distinctions, O (D ALDACCHINO MMANUEL B E Baldacchino, INAL INAL . .F See Id See See il proprio 42. 43. 44. 41. (a) the attributes or truth-values is proper to, in the sense of how that which (ii) Then there is the equally problematic, yet more widely used, attempt to This distinction needs to be had if we want to elucidate, and even This distinction needs to be had if (i)of art for art’s sake ( renewed formis a The first (b)entelecheic signals an that an event art as of that which asserts the action The claim warrants some to integrity on the proprietary and elaboration M K ALDACCINO C Y 8. B 8. where art’s immanence This also clarifies its truth is found. in its relation to need to be shifted away that what we mean from by the proprietary aspects identifiable attempts by which legitimation remains art’s proprietary external itself. to art three scenarios where legitimationidentify this, I To better clarify aesthetical- of the arts by and elevation justification, is confused with an excuse, legitimation: affective, social-moral and formative-cultural forms of Italian we could illustrate how lineage from maker, to making and the made. Here the implication of external lineage from maker, to making and the made. Here the implication of sources by which art’s truth is that we assume as art and not as something of art, in this case, belong to art else—whether of aesthetical-affective, else appears to be a form this something social-moral, and formative-cultural legitimation; 2018] proprietary integrity also means integrity proprietary art’s of are reflexive such attributes that integrity. Put simply, itself the approach musthave integrity as it to tally needs truth-value. to the truth. This gets close with art’s that asserts art’s tautology appropriative characters of art, as they are articulated by the tautological cycle of art, as they are articulated appropriative characters that gives art its truth-value. to say that the arts are not autonomous but where some would simply refuse to somebut where to say that the arts are not autonomous would simply refuse a limited pseudo-aesthetic but assume anything that cannot go beyond personal taste. that cannot go beyond personal (and appropriating) that remains,remits (in the of legitimacy and truth) within those diverse properties that dint of art that comesby fromthe sphere of action we to it. We attribute mustthat in this grid of truth values, wein mind bear samedifferent to as art itself; whichthe is are properties that these diverse find forms of external to those non-artistic say that these properties are equivalent legitimation, aesthetical-affective, social-moral including and formative- legitimation. cultural forms of 40672-mqi_22-1 Sheet No. 58 Side A 05/20/2019 14:43:36 A 05/20/2019 58 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 58 Side B 05/20/2019 14:43:36 , 50 M K HE . T C Y in , [Vol. 22:1 [Vol. 11/5/2018 12:06PM .” The Republic (1977). A Plea for Excuses PIRIT the arts, a fundamental S OMETHING 49 S This was a precursor to the a precursor to This was , Book X 603b–604, at 828–29 (Edith 46 elevate OING We banishing of the know that the ETTERS L “D 45 and HENOMENOLOGY OF AND , P ” justify CT EGEL , 52 A NCLUDING THE I W. H W. Art’s Gaming Lost: Within the Make-Belief of Curricular Certainty Curricular Art’s Gaming Lost: Within the Make-Belief of ) the arts on the presumed levels of those high moral- excuse 47 LATO P MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE EORGE OING AN note 2, at 6. note 2, at D G 333–35 (1994). OT OT Rather, Austin explains, freedom is a “name of a dimension N Section VII. O supra 51 elevating , (D VI. “D Apart fromart’s precluding, any possibility for distorting, if not TUDIES S infra John Baldacchino, 48 IALOGUES OF INAL INAL . . USTIN .F D See generally Id Id See , by which art somehow religion and like other forms flanks which art of freedom, by those socio-political claims socio-political those by which some wouldare the arts insist that 50. A 48. 47. 45. the state as a sealed political system, but the assemblage of vested Here I do not mean 46. of mimesis and truth in Plato, For example, see the discussion 49. See 51. 52. In the attempts to Austin’s remarks well help could very the meaning us understand of action (iii) the other end of the spectrum, The last in this troika is found at where URRICULUM ALDACCINO OLLECTED 8. B 8. distinction remains missing. Here I refer to the second epigraph that opens this distinction remains missing. Here I refer to the second epigraph that opens essay, which I cite from essay John Langshaw Austin’s 2 C Insofar as he wants to make for the excuse as a philosophical point of a case worth, Austin remindsis not a name us that ‘“truth” of for a characteristic characterize it namea name or nor does is just as “freedom” neither assertions” a set of actions. interests that are established across social, corporate and political hegemonies. and political interests that are established across social, corporate in which actions are assessed.” in which actions are immanence to relate to its own this attempt truth, leaves matters in the worst possible scenario, especially when the intention is premised on the denial of the contingencies by which, as I will below, explain successfully the arts have autonomy. resisted all those efforts to stultify their integral to the functions of the city-state. the functions of integral to justify Hamilton & Huntington Cairns eds., 1989). Hamilton & Huntington Cairns eds., C 112 assumptions which of need, we educational and nurture in those still socioeconomic the arts, whose taxonomies hierarchies are no less indifferent to and to which we seem to want to hold when we against seek to justify the arts their structural ordering. some insist on arts from the city-state was originally prompted the city-state was arts from Plato’s philosophical by lower end of the hierarchy at the assumption the arts must that serve a purpose political taxonomy.and its ensuing of truth pedagogical formations which, in their contemporary reformulation they are formative notion of failed re-enactment of Hegel’s cultural found short of a Bildung philosophy. 40672-mqi_22-1 Sheet No. 58 Side B 05/20/2019 14:43:36 B 05/20/2019 58 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 59 Side A 05/20/2019 14:43:36 53 113 11/5/2018 12:06PM 18–20 (2000). 54 506–17 (1982). RT A 57 EAUTIFUL B Yet, while such forms and of description 56 RTS OF THE OCIOLOGY OF A S HE HE 58 , T ) , T note 36. ELETE ILSON D AUSER G supra H OT OT RIGHT TO CREATIVE ILLEGITIMACY ILLEGITIMACY CREATIVE TO RIGHT , N O In the discussion of art’s truth this danger is commonplace.In the discussion (D . at 4. . at ANTO TIENNE RNOLD 55 D E INAL INAL . . .F Id Id See id See See 55. 56. 58. See, for example, Hauser’s sociological discussion of mediation and alienation vis-à-vis 53. 54. 57. Yet to say that immanence through the action of be understood can only One how can see of this multidirectional at the ends stretch, there emerges Below I will cite instances where, early in his essay, Austin alerts and warns and alerts in his essay, Austin where, early instances will cite I Below This insufficiency is best exemplifiedThis insufficiency in how art’s legitimation is often M K ALDACCINO C Y 8. B 8. art, as well as the audience from the artist, and the work of art from both the artist and the audience. In the realm of expertise, there is only one form of legitimacy, and it emerges as a legislative terrain that has nothing to do with truth-value. art, let alone its the art trade in A art-making set of pitfalls. This is especially the case when presents another artists who see themselves as the makers, simply refuse to engage with those where realm as a is often expressed This are made. that who behold the objects is “in” the to say or know what allowed only specialists and connoisseurs are of expertise. a realm into knowledge the result that of is distorted art, with work her art’s legitimationalienates the artist fromIn such a rarified location, simply avoided, perhaps in the same is simply art as action a fundamental flaw in how argumentwhat could be seen as an external might have managedclose to to get approach to art’s truth, art’s immanence can only be comprehensively that it makes—in the objects inheres which art the actions by understood from Etienne Gilson refers to as art’s what the neo-Scholastic philosopher factivity”. positioning within the “order of Most of the confusion is found in the way by which those who write about art, way by which those Most of the confusion is found in the reality that art-making—perhapsthe or misunderstandtend to forgo, ignore language. unlike works of art—often confirms the insufficiency of psychologist, the borrowed speech of the philosopher, expressed through educationalist, or social theorist. 2018] What me interests that Austin is the distinction makeswhich by he seeks the dimension of action—in that of the excuse—to his case an assertion position in mythat would, me case, help very least approximate, or at the understand my claim to creative illegitimacy. to art’s right itself, though here I am though itself, not claiming with travelling or indeed addressing to be as prominentlyown theory of action Austin’s in his philosophy. elaborated his readers about a numberhis readers about of common misconceptions which actions are by misplaced arguments with the result that the made could well become nonsensical. 40672-mqi_22-1 Sheet No. 59 Side A 05/20/2019 14:43:36 A 05/20/2019 59 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 59 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 11/5/2018 12:06PM To do so, AustinTo do so, sets However, as we have However, 59 63 61 ) MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE note 2, at 4. note 2, at D OT OT N The distinction may not be problematic in certain contexts, O supra 62 , which would not be that far from saying that as we speak of art, we speak of that as from not be that far which would saying (D . 60 INAL INAL . . . USTIN In this respect, Austin’s warnings have a lot of relevance to how In this respect, Austin’s warnings have a lot of relevance to we .F Id Id Id See id 59. A 60. 61. 62. 63. As it is invariably commonAs it is invariably within for any description of action to fall an As weas an action and between art-making have seen in the distinctions There is indeed a vague and comforting idea in the background that, after ALDACCINO understand legitimation and where we can locate it. everything to a procedure. While this is extremely valid, it does not mean that everything to a procedure. While this is extremely valid, it does not debates over process and product. Again, the claimdebates over process and product. Again, of the maker is that this is reduced to a reification of the act of itself—asmaking we often find in the futile seen in the pitfalls of the maker insisting on the expertise of his actions, the action itself cannot be assumed as a comforting zone, because this could be because this zone, itself cannot be assumed as a comforting action the question of immanence is satisfied by the designation of complex processes. the question of immanence is satisfied by simply implied, and that an explanation of making would in effect reduce would in effect that an explanation of makingimplied, and simply 8. B 8. ethical sphere of discussion, Austin remarksethical sphere of we consider what that “before consider first what is or wrong, it is proper to or bad, right actions are good meant what not, the and what is included under, and by, and what not, an action’ or ‘doing something.’”expression ‘doing we need to at least qualify what we mean, if only to set a common ground for a conversation. possible way that the excuse was simplyexcuse was that the way dismissed and philosophers by as frivolous alike until Austinlinguists drew attention. everyone’s the work of art as an object, one begins to understand how art as an action an object, one begins to understand the work of art as examinationrequires a constant of what it denotes, especially when the task is meaningto find a reason and for art as a motive by which its immanence is action” is different from the truth of related to its truth. The truth of “an “something.” We often use the to meanword “art” the same “action” and as an a “something.” 114 especially when we speak of art as that which brings together art’s action as especially when we speak of art as inherent in the something that someone makes for someone else. However, already, seen action?”, as we have value of this whenthe “What we question is had. distinctions need to be the scene for a plea of action qualifying what by we should avoid when talking about action; all, in the last analysis, doing an action mustall, in the last analysis, doing an come making down to the of physical movementsparts of the body; but this is about as true as that with movements saying something must, in the last analysis, come down to making 40672-mqi_22-1 Sheet No. 59 Side B 05/20/2019 14:43:36 B 05/20/2019 59 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 60 Side A 05/20/2019 14:43:36 115 named ’ 11/5/2018 12:06PM 67 towards the world. towards the directed LLEGITIMACY I 65 This would warrant a whole separate paper if This would warrant a whole separate REATIVE 68 Austin urges his readers to “ask what more,Austin urges his readers to “ask what then, 66 ) VII. C ELETE D OT OT RIGHT TO CREATIVE ILLEGITIMACY ILLEGITIMACY CREATIVE TO RIGHT N O (D 64 . at 19–20. . at INAL INAL of an action and the like.” of an action and the . 5. . at . . .F ’ See id Id Id Id Id 66. 67. 68. 64. 65. As actions are increasingly assessed, the claim for a legitimacy that finds Austin takes this from a two-fold The first is to “ask how approach. we realize that even the ‘simplestThis takes us to how “we need to The way Austin it puts appears comical, though if not absurd, ultimately to Limited space does not permit a detailed treatment of what Austin means M K ALDACCINO C Y 8. B 8. comes in (intentions? conventions?) and what does not (motives?), and what is does not (motives?),what comes and what and in (intentions? conventions?) we use in ‘acting’—thethe complicated receipt internal machinery the detail of of principles, the invocation the situation, of intelligence, the appreciation of rest.” and the the planning, the control of execution actions are not so simple.” an intersection between meaning intention becomes and a concern. While for necessary art are which one understands action in identifiable parameters by a clearer discourse by which the complexity of this sphere is approached, on the other hand the question of legitimacy remains problematic the closer one when art is especially the case gets to such a complexaffairs. This state of for action—that its claim in both brings up the issue of autonomy continuously decide what is the correct namedecide what is the somebody for ‘the’ action that did—and what, use of ‘the’ action, ‘an’ for the the rules indeed, are a ‘part’ action, ‘one’ action, or ‘phase justify or indeed guarantee the relation between an act and its immanence an act and between the relation indeed guarantee justify or (by its assumed that art-making satisfied by stating be to its truth), cannot relation it happens. Just by the fact that secret and somehowholds the justified this is a bike, or (like riding actions simplyas one cannot explain particular swimming) in the complex procedure, going through a carefully described by with over to be engaged action and practice require one nature of art’s praxis, a number of mediational terrains, using a number and experiential of elements which to how, directly contribute in this case, legitimation could help us make by whichsense of the intentionality art is by the “machinery of action.” 2018] of the tongue. of the one were to attemptexplore its possible relevance to the implications to of art as of an action and how the distinctions that this machinery clarifies would help value. us write and speak much more clearly about art’s truth 40672-mqi_22-1 Sheet No. 60 Side A 05/20/2019 14:43:36 A 05/20/2019 60 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 60 Side B 05/20/2019 14:43:36 M K C Y ILEY W HE [Vol. 22:1 [Vol. . T 11/5/2018 12:06PM note 12. HILOSOPHIES P supra , ad infinitum. ISTORIES AND . H It would mean has to bring that one (forthcoming 2018). 70 Id. Art’s Asymptotic Leadership DUCATION NTRODUCTION E , I ) Here I am capturing this cycle in three diagrams that ESIGN note 2, at 19. note 2, at 71 D 72 MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D Baldacchino, supra OT OT ALDACCHINO , N B RT AND O A (D USTIN OHN More art is never of work how the understand to better we need so J A INAL INAL 69 .F See See See generally 72. Here I propose to elaborate a similar cycle of actions, which I have discussed in my 70. 69. 71. As one revisits the machinery of action, whose intentions, conventions and the machineryAs one revisits conventions whose intentions, of action, Whatever an art event may be—a painting, play, installation, novel, musical ALDACCINO NCYCLOPEDIA OF 8. B 8. Introduction at Baldacchino, Introduction. beholden to one original intention, the main reason being that the intentions that that the intentions the main to one original intention, beholden reason being finitude. end nor work knows neither brings to the art’s audience procedure legitimizing any levels, several motiveson operations run its various capture art’s immanence to understand and that seeks to its truth in relation in completecannot be captured form. work, video, a choreography, et cetera—thework, video, a choreography, place process of action that takes movesis mostly from that characterized by a cycle to autonomy, contingency heteronomy, and back. together the infinite intentions which converge upon the exchange between the the exchange between intentions which converge upon together the infinite in the art event, include whose actors that are brought to bear infinite intentions artists, art-making, which in turn gives rise to works of art, and an audience, and again, and again . . . further events again, offer a very open-ended modeloffer a very of what a snapshot of these forms of action could like. conceptually look of making. E 116 40672-mqi_22-1 Sheet No. 60 Side B 05/20/2019 14:43:36 B 05/20/2019 60 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 61 Side A 05/20/2019 14:43:36 74 117 73 11/5/2018 12:06PM ) ), where random to take all possible art events appear ELETE D Fig. 1 Fig. OT OT RIGHT TO CREATIVE ILLEGITIMACY ILLEGITIMACY CREATIVE TO RIGHT N O (D INAL INAL . . . .F Id Id Id 75 75. 74. 73. Figure 1. Contingent actions; Figure 2. Autonomous actions; Figure 3. actions; Figure Figure 1. Contingent actions; Figure 2. Autonomous In capturing the flow of art events, one begins with of this constellation One could argue that there is a phenomenological predisposition to the fact the to predisposition is a phenomenologicalthere argue that One could state of affairs inter-subjectively, it Yet as one begins to understand this It may common or may actions share a not be the case that these space M K ALDACCINO C Y 8. B 8. Heteronomous actions contingent action ( directions, as they appear to each other in simultaneousdirections, as they appear to each though random momentsexchange. This characterizes the contingent of “doing as an act,” characterized as a highly mutable and inconsistent state of affairs. that these actions are also placed. In this respect whenthat these actions are also placed. In with they appear to be those who are engaged in the art event others by the accident of being there, tend to look sideways and move on with the distinct awareness that they are not goes. isolated figures, as so often the romantic assumption of the lone artist simply means engaged in an equally contingent subjects that there are other manner. on a universal horizon. to socialize demonstrate no specific need They of particularities, where each and every This is thereby sustained as a horizon thus inhabiting singularity, dint of its by event assumes its own universality art paradoxical to add that in the inter- a universe of singularities. It is no less their actions prompt realize that subjective realization of art’s event, artists also designated to accommodate art events. Random art events, in their simultaneity, immediatelysomething.” disposition of “doing confirm their This action is crudely assumedas that moment articulates its need to where art do something as art-making, and where the work of art begins to formulate itself. 2018] 40672-mqi_22-1 Sheet No. 61 Side A 05/20/2019 14:43:36 A 05/20/2019 61 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 61 Side B 05/20/2019 14:43:36 83 M K C Y 78 [Vol. 22:1 [Vol. As we have As we have 11/5/2018 12:06PM 76 ). ) where far from far ) where note 71. Fig. 2 Fig. Fig. 3 Fig. 82 supra 85 , HILOSOPHIES P This pushes back those legitimizingThis pushes back 77 ISTORIES AND , H warrants autonomouswarrants action. ( ) MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D The paradox that originally moved art from its contingent But as contingency is asserted by the autonomyBut as contingency art’s of OT OT 81 ALDACCHINO N Section III. 79 B O 80 (D OHN supra J a universe of singularities, the dispositions that emerge the dispositions a universe of singularities, from (b) INAL INAL ...... F Id. See Id Id Id Id Id Id Id This collapse empowers reject and render irrelevant any art to qua 84 78. 79. 82. 83. 84. 85. 76. 77. See 80. 81. If we do not understand how art inheres, and how its immanence relates to If we do not understand how art inheres, Art’s inherence in “the object that it makes”Art’s inherence in allows us to speak of the The art event asserts its autonomous character by dint of the fact that “doing the fact dint of asserts its autonomousThe art event by character In asserting its heteronomy, art lays claim on its right to illegitimacy by Here, art moves into a heteronomous phase of action ( heteronomousaction phase of art moves into a Here, ALDACCINO 8. B 8. acquire a plasticity by which those who experience art also partake of art’s experience art also partake of art’s by which those who acquire a plasticity action together. action its truth by dint of this constant movement of collapse into itself, wedint of will fail to truth by its that humanof the disposition towardunderstand how a full understanding art is immanence art asserts at least twice: (a) as that which is inherent to the making, and in their open-ended inhere to works of art continue which and (b) as that by plural longevity. as action” mustas action” inhere in the “something” the action makes. that being prompted legitimize by the need to its existence, the event of art asserts its heteronomous truth by which it delegitimized of the expectancies heteronomy itself. their claimtheir autonomy. for autonomy This is symptomatic to of art’s inability simply contingent “origin,” sustain its tied to any singular art is never because intention. of the assertion of and being art’s events others, and The sheer reality others-amongst-each-other which it moves out of the expectations of legitimation to assert its plasticity. Moreinvolution collapses onto an where action importantly, to be what appears itself. 118 arrangement of autonomous of actions to the sphere action as a form of manifesting heteronomous action, now breaks into the cycle of legitimation by illegitimacy. a new phase of its dialectic: that of rightful already argued, art’s action inheres in whatalready argued, art’s it makes as its immanence is in multipleasserted iteratively ways. expectations that externalize art’s action into an enabler of other actions. of other art’s action into an enabler expectations that externalize instrumentalist imposition on its presumed legitimacy.instrumentalist imposition on its presumed 40672-mqi_22-1 Sheet No. 61 Side B 05/20/2019 14:43:36 B 05/20/2019 61 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 62 Side A 05/20/2019 14:43:36 : 119 THER EIRCE O P HILOSOPHY —not to P 90 , where the 11/5/2018 12:06PM SSENTIAL E NTRODUCTION TO THE I , intro, 75–82, 299–602 HE HILOSOPHY AND T N P RT There, Dewey states this gains pragmatic A in : A and more so by Charles and more so by 362, 362 (1983). 362, 362 , 1878-1899 (Gerald Myers ed., 1902-1910 (Bruce Kuklick ed., 94 86 INE . 88 (1983). The origins of Dewey’s The origins of Dewey’s F NTRODUCTION TO THE ONIST ARWIN ON I 87 D M N RITINGS RITINGS HE W : A VOLUTION PACES in in W E , S , 3 T ECTURES ON What is a Sign? Democracy and Education : L DUCATION NFLUENCE OF where he discusses what he identifies as where he discusses AKER I E REATIVE HE EMOCRACY AND EDUCATION EMOCRACY AND , C Pragmatism and William James’s psychology , T , D ESTHETICS 89 VIII. M , A ERGSON EWEY EWEY Aesthetics ) B D D EGEL (1922). EMOCRACY AND ELETE 2, 4–10 ( Nathan Houser et. al eds., 1992). 2, 4–10 ( Nathan Houser et. al eds., ENRI Charles Sanders Peirce, The Superstition of Necessity OHN OHN D J William James, Psychology: Briefer Course J H , D W. H W. The Superstition of Necessity , OL 92 OT OT RIGHT TO CREATIVE ILLEGITIMACY ILLEGITIMACY CREATIVE TO RIGHT N , V O EWEY AMES (D DUCATION EORGE D J E G 41 (1922). 93 century, INAL INAL whose theories of simultaneity, memorial time, and new approaches . at 59–86, 272–97. RITINGS .F OHN See generally See See generally See generally See generally See generally 91 Id W ILLIAM (1910). 94. John Dewey, 89. 87. 88. 91. 86. 90. 92. 93. J By way of contextualizing the thinking behind what I have amBy way of contextualizing the thinking proposing Dewey’s philosophy of experimentation, plasticity and growth, continues While in tenor, readers will this appears to be idealistic recall that this DUCATION M K ALDACCINO E SSAYS ELECTED HILOSOPHY OF C Y 8. B 8. in this essay, I would cite from I consider to be one of Dewey’s most what that he wrote in the lastexciting, if not heretical, essays decade of the nineteenth to remind us of the claim he makes in condition for growth remains of a state of persistently predicated on the need immaturity. clearly and approach is Hegelian inasmuchapproach is Hegelian as Dewey’s work also became profoundly inquiry, scientific Darwin’s, influenced by especially mention such as Dewey’s contemporary, European philosophers, Henri Bergson, Sanders Peirce’s semiotics,Sanders Peirce’s tangibility in Dewey’s of growth. philosophy OF (1975). E P 2018] 1992). contingent origins of its autonomous of origins contingent paradox of this affordance The nature. becomes moment possible at the of heteronomy, also the moment which is when its ownaction enters into art’s to its and collapses back negation nature. contingent 1988); W to creative evolutionary processes ran in parallel withto creative evolutionary processes ran Einstein’s revolution in scientific thinking. model is not new to both science and philosophy. Starting with the dialectic philosophy. Starting model both science and is not new to in his that Hegel adopts Symbolic, Classical and Romantic forms of art, S 40672-mqi_22-1 Sheet No. 62 Side A 05/20/2019 14:43:36 A 05/20/2019 62 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 62 Side B 05/20/2019 14:43:36 , M K C Y [Vol. 22:1 [Vol. on this we 11/5/2018 12:06PM There, Dewey , and there is a 96 Even after so manyEven after 95 progressus ad infinitum The Studio we are to have somethingwe are to have else, the if is a pedagogical model emerges that entirely 97 ) ? Is this simply better than none at all? ? Is this simply than none at better MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE The Studio D OT OT 98 N . O (D INAL INAL . . . at 373. . at 372. .F Id Id Id Id 97. 98. 96. 95. What are the bearings of legitimacy when the contingent and necessary are whenthe bearings of legitimacy the contingent and necessary are What Here we have our choice: we may deny the existence of any organicwhole the existence of any choice: we mayHere we have our deny So far this seemsnormal like a studio in an art school. However, what is I want to conclude this paper, by citing an exampleI want to conclude this paper, by drawn from a ALDACCINO 8. B 8. seen as correlating to the same fact? As I am here suggesting that art’s action follows a cycle that moves to heteronomy, from only to collapse contingency under the weight of the autonomy that bridges them, are we settling for a progressus ad infinitum years, this still comesyears, this claim,as an explosive across as it means that any assumption the sake of some contingency for necessity over that privileges In terms is to be defied. bigger whole what of we essay, discussing in this are the implicationof Dewey’s claim structure of legitimacy is that any that normally irrelevant. on a necessary whole is rendered hinges without flinching or raising a shred of doubt, that “contingent and necessary necessary and that “contingent doubt, shred of a or raising flinching without same of one and the correlative aspects are . . . the fact.” after an end valid in itself. In this case we never get beyond a hypothetical in itself. In this case we never get after an end valid necessity—something is necessary in life and keep chasing in a never-ending series, the in a never-ending series, the in life and keep chasing 120 is both adamant and clear. is both adamant and simpleit. reason for fromstudio space—what the notion of a is sometimes called a maker space— than determines,which in and of itself allows, rather the opportunity for a self-elective way, and random numberin a pretty come of freshmen together, to engage in arts events of their own creation. the main, arts specialists, in not, are these students that here not only is different but where what brings them is diversity—understood together not only in the legalistic way of minority groups but in the self-election of one’s own to find which these students opt by artistic identity this case existential and in pedagogical model of Wisconsin–Madison, adopted in the University and which I am pretty sure has parallels in similar setups elsewhere. This Creative Arts Community is named, rather unpretentiously, reach none at all reach none at necessity being relative to the impliednecessity being relative being convinced that life is a doubt. Or, wh merely,whole and not a series we may there is one comprehensive say end gives its own it. While, ends in so far as they constitute validity to the lesser only a hypothetical necessity, on the other alternative, we reach 40672-mqi_22-1 Sheet No. 62 Side B 05/20/2019 14:43:36 B 05/20/2019 62 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 63 Side A 05/20/2019 14:43:36 , ERT 121 show 99 & G 104 verbatim 11/5/2018 12:06PM Typical of any ALDACCHINO 101 B The Studio OHN , (April 29, 2018, 12:33 PM), (April 29, 2018, 12:35 PM), There are multiple exemplars and . It is sought by the student note 41; J active supra , The Studio (Chris Naughton et al. (eds.), London Routledge, , the unlearning that takes place goes even , the unlearning that takes place goes Students normally themselves volunteer to note 99. note 99. EDAGOGY P 100 supra ) The Studio: Creative Arts Community The Studio ART ± EDUCATION ELETE D RTISTS AND curriculum that is invested in the adopts a structure OT OT RIGHT TO CREATIVE ILLEGITIMACY ILLEGITIMACY CREATIVE TO RIGHT N , A 2017a. O ’s website: . (D RTS Baldacchino, However, in in However, . , A INAL INAL See The type of unlearning here is Id See id .F Create an arts and design-centered living-learning experience that experience living-learning arts and design-centered Create an exploration encourages interdisciplinary including artists and designers, of talented Connect with a roster UW-–Madison departments faculty in a variety of arts rehearsal, study, drafting and performanceHave access to onsite spaces Participate in programming caters to your specific interest. that 102 The Studio 103 Weak subjects: On Art’s Art of Forgetting. An Interview with John Baldacchino, Interviewed Weak subjects: On Art’s Art of Forgetting. An Interview with John Baldacchino, Interviewed , • • • • The Studio 101. 102. 100. 99. University Housing, 104. University of Wisconsin-Madison, 103. University Housing, The exemplars in the various archives of that one finds The goals set for this programThe goals unassuming. are quite Here I cite While attempt one could objectives as legitimizing to process these values The Studio’s Far from students coming together to do what comes to their mind, the M K ALDACCINO IESTA C Y 8. B 8. from http://www.housing.wisc.edu/residencehalls-lc-thestudio.htm [https://perma.cc/Z8JS-DCW8]. http://www.housing.wisc.edu/residencehalls-lc-thestudio.htm intent on repositioning her life on a trajectory by which she would be able to by which she would be trajectory intent on repositioning her life on a handle. whereby the inherence of their categorical assumptions is easily transferred to of their categorical whereby the inherence be further such a program,a truth-value that would in turn justify this cannot from happens. what actually B 2018] themselves within contingently, rather placed, maker these spaces. against what is expected in the normal studio in an art, drama, dance or music school. 2017). by Gert Biesta studio pedagogy, unlearning is a mainstay directions of of art’s illegitimate teaching. videos in https://thestudiouw.arts.wisc.edu [https://perma.cc/9RTC-HE79]. articulate the pressures and expectations by what they see as their way to rebut whichin their studies out there would the normal somehow state of affairs limit, ambitions. if not totally frustrate their creative illegitimacy events. of art pedagogical structures that emerge in this program are mostly taking an artistic creations, these students assert their opposite direction. In their various autonomy by mostly strong signs of unlearning. showing 40672-mqi_22-1 Sheet No. 63 Side A 05/20/2019 14:43:36 A 05/20/2019 63 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 63 Side B 05/20/2019 14:43:36 M K .& C Y DUC E [Vol. 22:1 [Vol. FOR J. 11/5/2018 12:06PM L ’ NT , 10 I 105 97–105 (2015); John Baldacchino, 106 EMARKS RTÍSTICA R A ONCLUDING one must understand that there are two agencies ) IX. C MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D OT OT NVESTIGAÇÃO EM EDUCAÇÃO The Studio N : I O Educing Art’s Indescribable Practice: Four theses on the impossibility of art’s (D . INAL INAL ERIVAS ’s example that this paper against the scenario proposes to set, where Id .F , 2 D 105. 106.now plays in universities, notion of “arts research” a role the very A good example is how By way of this essay, concluding I would to invite readers on briefly reflect In setups like ALDACCINO 8. B 8. The Studio illegitimacy. art duly claims its right to in play. The first has to do with the student’s personal and existential legitimacy,one’s self as to why as an explanation to one needs to attend or a university. This presents fundamentalindeed join institutions such as This is particularly the case in those challenges to one’s own experience. populations which universities—rightfully or wrongfully—identify as her own the student is self-identifying underrepresented groups, and by which positioning within institutions that have particular histories and which form part comesof traditions which, even when it to the arts, have not always been welcome. we have the context of art itself, which not In the second instance, that over of disciplines is a constellation unlike the “underrepresented” student many but more centuries, entered the legislative spheres of so since the arts academia, fair share of ambiguity. have had their To date, the arts are still to fit in a of normsexpected whole hierarchy expectations and that consistently adapt. remind onus is on them artists that the to a high degree of success, if one measures success by how these students do not do these students how one measures by success if of success, degree a high or measurejust seek to them, conventions given success by the but in their comprehensive forms understanding of would also appreciate of knowing that what others maythe role of well deem some or “failure.” In to be an “error” are not simplycases, these space of the studio, in the safe events that happen forms into the very existential events that spill out but also with of coping a world which most entirely hostile, found to be, if not these students have of quite unfamiliar and foreign—especiallywhere in those cases one is born ownforeign into one’s of class, race, ethnicity, gender, for reasons environs existence. any other formsexuality, faith or human of 122 only to be precariously ensconced in contexts that either instrumentalized the arts as those abilities that only to be precariously ensconced in contexts with the sciences (the forced evolution from STEM to which would attract funding if they are merged whole myth around the fallacy or the “Right STEAM being a good example; not to mention the of industry cottage a whole that has created but a folklore is nothing Brain” industry, which Brain/Left falls into a legitimacy by itself), but also where when the arts are asserted in their own integrity, this bests eroticises the trap that would either weaken the position of the arts in academia, or at the very see arts into a rarefied luxury, which academia wears as a badge of honour. For more information, John Baldacchino, research Opening the picture: On the political responsibility of arts-based research 40672-mqi_22-1 Sheet No. 63 Side B 05/20/2019 14:43:36 B 05/20/2019 63 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 64 Side A 05/20/2019 14:43:36 108 116 115 123 or the that has Socrates Socrates 113 Yet in their NCLUDING THE logos I 11/5/2018 12:06PM after Plato, khôra 112 107 LATO Timaeus, Timaeus, P (1993). IALOGUES OF , humanslay claim and assert which in the D This is a genre that either goes This is a genre that HÔRA 114 note 39, at 112. note 39, at 111 , K khôra , and the representational symbolic representational , and the khôra supra , , but the illegality of the OLLECTED C ERRIDA UT logos D O HE AY , T mythos W S ERRIDA ’ D . RT confirm that in their aesthetic anticipation of events, in that confirm . By dint of the Timaeus ) , A note 94. I would argue that it was Dewey’s deep engagement with art note 94. I would argue that it was Dewey’s deep engagement with art —where mistakenly manyarts alongside would put the note 109 ELETE ACQUES Plato, khôra J 109 khôra D . 110 supra OT OT RIGHT TO CREATIVE ILLEGITIMACY ILLEGITIMACY CREATIVE TO RIGHT refuses to be defined by either the legalese of refuses to be defined N supra O . (D . at 48e–49b, 1176. ALDACCHINO Consistently, art has shown that humanity needs to grasp Dewey, B mythos . . . . khôra INAL INAL See generally See Id Id Id Id See Derrida, See id See generally .F See id 117 1 (2009). (Edith Hamilton & Huntington Cairns eds., 1989). (Edith Hamilton & Huntington Cairns eds., 1989). RTS 111. 112. 113. 114. 115. 110. 117. 108. 109. 116. 107. The marks of the It is not the semiosis the of Art’s to illegitimacy right a being is far frommetaphor dissent. for Beyond As the As the A M K ALDACCINO ETTERS C Y 8. B 8. always confirmed Ever since the first known marks what art stands for. were left in caves in Blombos, Altamira we know that humans and Lascaux, have rejected the dualisms which, over by that insisted on inhabiting a third genre history, the hegemony has oppressed the many. of word and representation womena concrete and pragmatic and awareness stopped expressing men never to the belong that the contingent and the necessary same facts of daily living. uncertainty as its source of freedom. More so, in its simultaneous events, art’s uncertainty as its source of freedom. More so, in its simultaneous events, has been which humanity by the certainties action stands as a reminder that Art anticipates and confirms Dewey’s mistrust of the superstition of necessity. calls the illegitimate, bastard space, of the illegitimate, of bastard space, the calls structures of identifies as a third genre by which human as a third genre identifies between two beings have survived legalistic realmsorders: the the of a simpleagainst the “system,” reaction of the ability of are the result the arts human Derrida, within what recognize and operate beings to that pushed him in the philosophical directions that he took. that pushed him in the philosophical directions that he other forms of human representation—the right to illegitimacy reclaims its rightful place in the a third dimension for their free intelligence. THE L 2018] wisdom, a third genre. for such recognized the need the ancients walks his students on this illegitimate ground. walks this illegitimate his students on unrecognized—partly to work and think in dualist due to our tendency assumptions—or is rejected as an illegitimate state of affairs. semiosis mythos of 40672-mqi_22-1 Sheet No. 64 Side A 05/20/2019 14:43:36 A 05/20/2019 64 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 64 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 11/5/2018 12:06PM ) MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D OT OT N O (D INAL INAL .F Does claim this to illegitimacy way give and chaos? to irrationality ALDACCINO 8. B 8. superstitiously been trapped must been trapped superstitiously make way is that paradox for the realization the hallmarkour claim of to freedom and intelligence. to understand a society that seeks this opens, is not. However, what Certainly truth from as its shortcomings, that it often dismisses the condition which the us to see, time continuously enabled arts have the norm and again, as of our and not the exception to avoid. being in the world, 124 40672-mqi_22-1 Sheet No. 64 Side B 05/20/2019 14:43:36 B 05/20/2019 64 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 65 Side A 05/20/2019 14:43:36 134 143 149 125 127 9/21/2018 1:52PM HALLENGES ..... C * ...... 148 HESE ...... 130 ...... T Species ...... 138 EET sources ...... 133 TRIFLING M HALLENGES A. S A. and Initiatives C Cracks ...... 134 and Depletion NTRODUCTION ANNOT I Water Re C ...... 147 ...... AVID D Pollution ...... Pollution ...... 127 erpumping...... 141 WATER QUALITY QUALITY WATER ) ESOURCES EGIMES R R ELETE D OLUTIONS ...... ISCONSIN ...... S OT OT ATER ...... N W EGAL O W L (D 1.130 ...... Central Sands 2.132 ... Lakes Compact Waukesha, Wisconsin, Great and the That Fell Through the That Fell Through Water Use Rights (Quantity) to Water Quality ...... 143 Water...... UseWater Rights (Quantity) to Quality 144 ...... Leverage the Semicommons 1. “Sponge Cities” 2. Voluntary Programs INAL INAL ACING .F B.Invasive Ineffective Controls on C. Groundwater Ov C. Groundwater Overuse D. Climate Change and A.Elephant Source Pollution: The Nonpoint A.from Extending Smith’s Theory of the Semicommons A. Nonpoint Source B.128 ...... Non-Native Species F B.to Proposals Beyond Regulation: Other Innovative THE SEMICOMMONS AND WISCONSIN WISCONSIN AND THE SEMICOMMONS * School. Director, Water Law and Policy Initiative, Marquette Law University NNOVATIVE XISTING RRAY OF From streams, the Great Wisconsin Lakes to pristine northern boasts a M K TRIFLING ONCLUSION ...... C Y NTRODUCTION 9. S 9. plentiful and array of water resources. valuable Yet water stress analyses show pressure that this natural capital is deeply threatened in a variety of ways. The III. I I II. E C I. A 40672-mqi_22-1 Sheet No. 65 Side A 05/20/2019 14:43:36 A 05/20/2019 65 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 65 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 9/21/2018 1:52PM Smith argues 2 beauty. But the scope of the of scope the beauty. But ) 1 MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. ELETE D OT OT N Section III.A. Section III.A. O (D Smith’s theory—at least as he has expressed it to date—relates INAL INAL 3 .F See infra See infra 1.2013). Rock-Koshkonong Lake District v. DNR, 833 N.W.2d 800, 820–21 (Wis. 2. 3. One approach to this dilemma and state is to recognize that federal proposed that the law should treat water Smith has already Professor Henry The opening question is basic: WhoThe opening question address these bears responsibility to TRIFLING 9. S 9. government under current law, can no longer fully regulators, acting alone protect water quality. New laws that fill the gap seemunlikely, meaning that responsible engagement governments by local and private entities will be essential. much like intellectual property rights—as a “semicommons.” results primarily from human activity, ranging from general overuse to primarilyresults from humanto from ranging activity, overuse general species. Some non-native introduced by anthropogenically colonization of the that practices land use problems,greatest water however, are caused by quality and farmfields urban settings. runoff from polluted to lead climate The onset of issues, coupled all of this. These further exacerbate the potential to change has them,address confront regulators to effectively withlaw existing the failure of and policy makers the next and novel questions. As a result, with difficult and quantity the quality will preserve demand approaches to innovative century purposes. of Wisconsin’s for both public and private water resources primarily to to private rights use water under various legal systems currently in is also useful. If private entities have a place. But a broader conceptualization right to use water, a corresponding responsibility to they should also share maintain the resource. Water quality is important for public and private uses alike. This article will explore whether the semicommons could be approach justify a more expanded to inclusive to responsibility for water quality approach that exclusionary governance regimes are a poor fit for “fluid resources” and instead calls for hybrid systems combine that private and common elements of property. 126 emerging problems? As an initial matter, under both statutory and common law, state. Federal and state environmental it is the lawsvest it with that trust doctrine, long extent of their coverage. The public authority, to the courts, likewiseestablished in our charges the state with protecting water and future generations of Wisconsinresources for current use for citizens to recreation, and scenic navigation, fishing, hunting, environmental laws is limited, and recent developments in the Wisconsin Legislature and court system have further curtailed the state’s power. For example, the Wisconsin Supreme Court clarified that the public trust doctrine thereby limitingdoes not apply to land use practices, its usefulness as a water tool. quality protection 40672-mqi_22-1 Sheet No. 65 Side B 05/20/2019 14:43:36 B 05/20/2019 65 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 66 Side A 05/20/2019 14:43:36 , . GOV 127 . ORLD NVTL EPA , W , 9/21/2018 1:52PM ISCONSIN W ACING Nonpoint Source Pollution F Contributing agricultural 3 (1987). 6 . Id Examples include urban runoff Examples include urban 5 UIDANCE Nationwide Assessment of Nonpoint Source G HALLENGES What is Nonpoint Source? C OURCE S Climate change willfurther affect our 4 136, 136 (2012). See Aqueduct Measuring and Mapping Water Risk See Aqueduct Measuring and Mapping Water ONPOINT ESOURCES , N R A. Nonpoint Source Pollution IOSCIENCE ) ATER W ATER ELETE , http://www.wri.org/our-work/project/aqueduct [https://perma.cc/R9L6- , http://www.wri.org/our-work/project/aqueduct , 62 B D W Wis. Dep’t of Natural Resources, OT OT N SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS ), EPA issued guidance defining nonpoint source pollution as “caused by diffuse ), EPA issued guidance defining nonpoint O FFICE OF (D O NSTITUTE Thomas C. Brown & Pamela Froemke, I infra INAL INAL RRAY OF See .F see also GENCY I. A 5. 4. The World Resources popular “Aqueduct” project Institute’s measures and maps water risks 6. U.S. Envtl. Prot. Agency, . A Wisconsin’s affected by resources have been negatively water “nonpoint” Perhaps the threat greatest to Wisconsin water quality comes nonpoint from M K TRIFLING ESOURCES ROT C Y 9. S 9. Threats to Water Quality fromand grease, lots containing oil roads and parking paved areas such as poorly managedsediment containing excess construction sites, and runoff from fromfertilizers, herbicides, and insecticides agricultural lands as well as bacteria and nutrients fromlivestock operations. source pollution, invasion by non-native species, and groundwater overuse and and groundwater non-native species, by source pollution, invasion depletion, among other threats. practices may managed or include poorly located animal feeding operations, overgrazing, plowing errors, and improper application of pesticides, fertilizer, resources in unexpected ways. resources in unexpected source pollution, meaning that it does not originate from traditional “end-of- source pollution, meaning originate fromthat it does not “end-of- traditional pipe” sources. Rather, it emanates from diffuse sources washed by waters.precipitation over the land into surface WUCE] project results showed most of Wisconsin (last visited Oct. 2, 2017). The under either “extremely risk” high risk” or “high for water quality impacts. concerns in addition to private use rights. Innovative proposals along those those along proposals Innovative rights. use to private in addition concerns include involvementlines could governments, by local and including cities voluntary programs;counties; sector involvement and even private in water efforts, public or cost-sharing increased grant through quality preservation campaigns,educational limited and other partnerships, public-private mechanisms. must this private role To be sure, comewith safeguards that and simultaneouslyprotect the resource broad participation. encourage https://www.epa.gov/nps/what-nonpoint-source [https://perma.cc/VC46-Z6X3] (last updated May 2, https://www.epa.gov/nps/what-nonpoint-source 2017); R 2018] from the global to the local scales. P sources that are not regulated as point sources and normally is associated with agricultural, silvicultural is associated with and normally regulated as point are not sources sources that etc. In practical and urban runoff, runoff from construction activities, terms, nonpoint source pipe) but pollution does not result from a discharge at a specific, single location (such as a single E or percolation.” U.S. atmospheric deposition, precipitation, runoff, land from results generally http://dnr.wi.gov/topic/nonpoint/ [https://perma.cc/S5EU-82BA] (last updated Jan. 5, 2017). In 1987, http://dnr.wi.gov/topic/nonpoint/ [https://perma.cc/S5EU-82BA] (last updated Jan. 5, 2017). (see as the federal government tried to strengthen federal efforts to regulate nonpoint source pollution Section II.A, 40672-mqi_22-1 Sheet No. 66 Side A 05/20/2019 14:43:36 A 05/20/2019 66 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 66 Side B 05/20/2019 14:43:36 , 11 M K GOV . C Y This , UNOFF 12 EPA R [Vol. 22:1 [Vol. , ROGRAM P 9/21/2018 1:52PM OURCE S GRICULTURAL . 1, 3, 37 (2015). 1, 3, 37 . A EV Excess nutrients fromExcess nutrients 8 ONPOINT . L. R N FF S ’ MPACTS OF I . A But a more nuanced definition 13 14 When Will Governments Regulate Nonpoint NVTL , https://www.epa.gov/greatlakes/invasive- ISCONSIN Environmental Impacts of Agricultural Runoff, Environmental Impacts of Agricultural Runoff, Nonpoint Source: Agriculture , W , 42 B.C. E , 42 B.C. NVIRONMENTAL ESOURCES Invasive Species R It is a source of impairmentIt is a source of to about 58% of note 6. B. Non-Native Species (Dec. 21, 2015), http://archive.jsonline.com/news/statepolitics/one- 10 ) supra note 6. ATURAL MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. N One-Third of Wells in Kewaunee County Unsafe for Drinking Water 7 ELETE ENTINEL EPA, D S supra T OF ’ FFY 2016–2020, 24 (2015). FFY 2016–2020, 24 OT OT N EP O LAN . D (D P 9 IS OURNAL J INAL INAL .F See generally 13. Lee Bergquist, 14. U.S. Envtl. Prot. Agency, 12. Wis. Dep’t of Natural Resources, 8. U.S. Envtl. Prot. Agency, 7. 10. DNR, Wis. 11. W 9.E Dep’t of Natural Resources, Wis. Wisconsin waters—and especially the Great Lakes—are also threatened At of waternonpoint pollution is “a leading cause the state level, quality The impacts on water source pollution of nonpoint can be severe. quality TRIFLING ILWAUKEE ANAGEMENT 9. S 9. third-of-wells-in-kewaunee-county-unsafe-for-drinking-water-b99636500z1-363176361.html/ third-of-wells-in-kewaunee-county-unsafe-for-drinking-water-b99636500z1-363176361.html/ [https://perma.cc/58D9-Y4HL]. Source Pollution? A Comparative Source Perspective https://www.epa.gov/nps/nonpoint-source-agriculture [https://perma.cc/2JJE-DZWD]https://www.epa.gov/nps/nonpoint-source-agriculture (last updated Roberts, Aug. 18, 2017); Robin K. Craig and Anna M. http://dnr.wi.gov/topic/Nonpoint/AgEnviromentalImpact.html [https://perma.cc/DEK5-QSV4] (last http://dnr.wi.gov/topic/Nonpoint/AgEnviromentalImpact.html 2015). updated May 26, M and irrigation water. and irrigation with a hostile takeover by non-native (sometimes called “invasive”) species. Defining exactly what that means can be difficult. By some definitions, an species. “invasive species” is any non-native species [https://perma.cc/AQ5M-JUE8] (last updated Aug. 14, 2017). species [https://perma.cc/AQ5M-JUE8] (last updated Aug. 14, impairedClean Water listed under Section 303(d) of the waters Act (CWA). agricultural runoff can cause increased nitrogen and phosphorus levels in can cause increased nitrogen and agricultural runoff algal blooms and lower oxygen levels for dissolved in surface waters, resulting aquatic life. problems in Wisconsin.” State-level data compiledState-level Environmental United by Agency Protection States nonpoint that agricultural (EPA) shows source is the leading source pollution of water quality impactson rivers and streams, of such the third-largest source impacts of wetland impairment, source on lakes, the second-largest a and to groundwater contamination. frequent contributor M Even worse, runoff containing “[m]anure, excess agricultural fertilizers, and pharmaceuticalspesticides, herbicides may pollute groundwater.” 128 problem is especially severe in Kewaunee County, Wisconsin,problem where at least is especially severe in Kewaunee to due partially water source, a drinking are unsafe for use as one-third of wells settings. manure in agricultural overspreading http://dnr.wi.gov/topic/Nonpoint/AgEnviromentalImpact.html [https://perma.cc/L7YT-K3GF]. http://dnr.wi.gov/topic/Nonpoint/AgEnviromentalImpact.html 40672-mqi_22-1 Sheet No. 66 Side B 05/20/2019 14:43:36 B 05/20/2019 66 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 67 Side A 05/20/2019 14:43:36 16 HE 129 AKES OCUS . L F , T NVASIVE 8 (2002) , I REAT The best- G LEARER 9/21/2018 1:52PM 17 19 : C ATIONAL ROBLEM P . Id PECIES IFE OF THE S L When damage to those Highlights ofGAO-03-1” 21 , 2008-2012 N ANAGE THE NVASIVE . at “ M EATH AND Id D OUNCIL HE C Ship-Borne Nonindigenous Species Diminish Ship-Borne Nonindigenous T , Invasive Species: Great Lakes Region , GAO-03-1, I 462, 462 (2012). 462, 462 GAN FFECTIVELY PECIES E E S AN FFICE D O see COSYSTEMS NVASIVE I Costs typically not considered include the impactCosts typically not considered include EEDED TO L ’ 20 The Costs of Aquatic Invasive Species to Great Lakes States The Costs of Aquatic Invasive Species to Great 15 N note 14. , 15 E AT 4 (2008) (“Most nonnative species . . . are not harmful; and many are 4 (2008) (“Most nonnative species . . . are not ) N supra CCOUNTABILITY note 17. For of and impact an outstanding and detailed discussion the history LAN ELETE 1 (Mar. 5, 2012), note 16, at 13. “Most economic estimates do not consider all of the relevant P A D T ’ OT OT see also N supra OMMITMENT SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS OV O supra The impact on diverse industries commercial including and sport C (D 18 at 13, 23, 55; John D. Rothlisberger et al., GAO); INAL INAL Id. ANAGEMENT ONSERVANCY .F C M REATER G 21. 16. U.S. G 17. Admin., Nat’l Oceanic and Atmospheric 20. GAO, 18. NOAA, 19. Alex L. Rosaen et al., 15.Order was intended The 1999). 3, 6183 (Feb. Reg. 6183, 64 Fed. 13,112, Order No. Exec. Moreover, such economic damage estimates value the do not fully The latter definition makes plain that not all non-native species are invasive. non-native species all makeslatter definition plain that not The M K TRIFLING ATURE PECIES C Y hereinafter 9. S 9. Great Lakes Ecosystem Services 1-150 (W.W.2017). Norton & Co. to “prevent the introduction of invasive species and provide for their control and to minimize the and to “prevent the introduction of invasive species economic, ecological, and human health impacts that invasive species cause.” http://www.regions.noaa.gov/great-lakes/index.php/great_lakes-restoration-initiative/invasive- species/ [https://perma.cc/4DNJ-X9NG] (last visited Oct. 3, 2017). The Environmental Protection Agency estimates that this includes at least twenty-five species of invasive fish along with many invasive plants. U.S. EPA, effects of nonnative species or the future risks that they pose.” of invasive species in the Great Lakes, fishing, tourism,can be severe; recent estimates and even agriculture put the annually.” economic damages over $100 million at “significantly on natural ecosystems, the extinction of native species, lost water-purification on natural ecosystems,native species, lost water-purification extinction of the impacts,capability, aesthetic and recreational and weakened resistance to in the future. other species impacts of invasions by ( AND is increasingly appropriate—anis increasingly species is a non-native species” “invasive environmental harmcause economic or to or is likely does introduction “whose health.” or harm human to nonmonetary damages involved in the displacement of native organisms or the nonmonetary damages displacement involved in the of native organisms or destruction of ecosystems. Most economicspecies cause no non-native or environmental harm; indeed, many cattle, wheat,beneficial, including are and tulips. soybeans, N S 2018] Nevertheless, under any definition, some certainly are a “invasive” species problem and Atmospheric region. The National Oceanic for the Great Lakes Administration Lakes ecosystem estimates has been severely that “[t]he Great damaged by more and non-native species.” than 180 invasive highly beneficial.”). https://www.nature.org/ourinitiatives/regions/northamerica/areas/greatlakes/ais-economic-report.pdf [https://perma.cc/5KSZ-KFVE]. known invaders, such as the zebra mussel,known invaders, quagga mussel, sea lamprey, and habitat, out-compet[e]alewife, “degrad[e] species, and short-circuit[ ] native food webs.” 40672-mqi_22-1 Sheet No. 67 Side A 05/20/2019 14:43:36 A 05/20/2019 67 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 67 Side B 05/20/2019 14:43:36 , , M K C Y [Vol. 22:1 [Vol. . L. 189, 202 9/21/2018 1:52PM NVTL . J. E Trusting the Public Trust: Public Trusting the T , 9 V Wisconsin’s Great Lakes Kraft (2012)). hereinafter In some overuse areas, groundwater 24 The Forgotten Sector: Arizona Water Law and the and The Forgotten Sector: Arizona Water Law the 243, 276 (2011) (“groundwater pumping . . . creates a 243, 276 (2011) (“groundwater pumping . . . Such “supplemental” while not irrigation, Y ’ See generally id. See generally 25 OL 22 308, 308 (2012) ( Irrigation Effects in the Northern Lake States: Wisconsin Central note 21. “Ecosystem services” are services provided by natural note 21. “Ecosystem services” are services F. 385, 385 (2010). Increased recognition of their value has led to F. 385, 385 (2010). Increased recognition of . L. & P The Role of Federal Policy in Establishing Ecosystem Service Markets Establishing Ecosystem in Policy of Federal The Role ) Y ’ MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. supra NVTL OL ELETE C. and Depletion Overuse Groundwater D ROUNDWATER OT OT . J. E , Sharon Megdal et al., N Vast tracts of the state, therefore, do not have access to Great do state, therefore, Vast tracts of the O RIZ . L. & P (D 23 , 50 G . . However, this practice can create significant environmentalHowever, this practice can create , 1 A See, e.g. INAL INAL NVTL Id Id .F E 26 27 26. 27. 25. George J. Kraft et al., 22. Rothlisberger, 23. Wis. Dep’t of Natural Resources, 24. UKE Those tight connections between surface and ground waters are present in Those tight connections between surface In the United States, irrigated agriculture is sometimesIn the United States, irrigated agriculture thought to be mostly More of Wisconsin’s twenty percent than within land area lies the Great TRIFLING 9. S 9. Wisconsin’s “central sands,” a region that encompasses million about 1.75 “ecosystem services” are considered, considered, are services” “ecosystem on economicthe toll the Great Lakes may annually. millionrise to $800 has led to significant consequences for those connected waters. consequences for those connected has led to significant This section discusses two examples: the state and the City of the Central Sands region of Waukesha. 1. Central Sands localized to the arid western states. Increasingly, this is untrue; “[i]rrigated the water-rich U.S. northern lake states agriculture has expanded greatly in during the past half century.” challenges when and groundwater is shallow closely connected to local surface waters. (2008) (“[G]roundwater is often directly connected to surface water [and] pumping can seriously affect seriously [and] pumping can water connected to surface directly (“[G]roundwater often (2008) is wetlands.”). the amount of water that would otherwise remain in rivers, lakes, springs, and 130 Lakes depend on water and largely groundwater for municipal and industrial supplies. As a matter groundwater pumping of hydrogeology, water lowers bodies of water, sometimeslevels in connected groundwater but more other often streams other surface waters. and ‘cone of depression’” in the water table surrounding a well); Jack a well); Jack Tuholske, surrounding table water the of depression’” in ‘cone Application of the Public Trust Doctrine to Groundwater Resources increasing calls to remedy this exclusion. https://www.dnr.wi.gov/topic/Greatlakes/learn.html [https://perma.cc/38BG-MG2Q] (last updated [https://perma.cc/38BG-MG2Q] (last https://www.dnr.wi.gov/topic/Greatlakes/learn.html 2017). May 3, systems not of their that public goods. were historically because A. markets nature as Laurie valued in Wayburn & Anton A. Chiono, Lakes basin. necessary for crop survival, augmentsproduction and extends the growing season. Environment Sands Revisited 20 D 40672-mqi_22-1 Sheet No. 67 Side B 05/20/2019 14:43:36 B 05/20/2019 67 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 68 Side A 05/20/2019 14:43:36 29 In 131 The 28 DNR § 38 and over DNR § NR ODE RAVEL 30 , at iii (2010) . C G 9/21/2018 1:52PM ODE 31 . C Impacts of Urban DMIN , . A DMIN IS AND AND et al. S W . A IS The question, of course, The question, of course, See 39 35 Groundwater Pumping Effects on ISCONSIN irrigate about 200,000 acres 200,000 acres irrigate about , W 32 Meanwhile, surface water levels 34 Hasan M. Hameed, Hasan M. ENTRAL Precipitation during the samePrecipitation during period 1 (2013). ECHENICH See , C 36 SES J. M U Over one-third of the base flow of someOver one-third of the base flow of 37 The number and the acreage served, of wells, ESOURCES AVID R ULTIPLE 33 DNR § NR 820.12(11) (2017). DNR § NR 820.12(11) M & D note 25, at 316. note 25, at ODE ) note 23, at 1. note 23, at ATURAL . C RAFT N ELETE supra ATER FOR D supra DMIN T OF J. K W ’ . § well” 281.34(1)(b) “high capacity is “a (2015–2016) (A well . . . that, together OT OT . A N EP SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O IS TAT . D (D Recharge reduction” means a decrease in the amount of water groundwater recharging W . S IS EORGE . IS ANAGING Kraft (2010)). INAL INAL Id. Id. Id. Id. Id Id. “ .F : M see also 35. 36. Kraft (2012), 37. 38. 39. 30.defined to include streams that “Trout streams” are generally contain either a self- 32. W 34. 31. DNR, Wis. 29. 28. W 33. G Recent studies conclusively show that they are. A well-researched 2012 well-researched show that they are. A Recent studies conclusively As of 2010, over 2300 high capacity wells over 2300 high As of 2010, M K TRIFLING QUIFER C Y hereinafter levels and is often caused by changes in land use. levels caused by and is often 9. S 9. Groundwater Levels, Lake Levels, and Streamflows in the Wisconsin Central Sands Groundwater Levels, Lake Levels, and Streamflows ( sustaining trout become self-sustaining, sustaining or with habitat population, that may a trout population a stream provide trout fishing. of sufficient quality to be stocked with trout to 820.30(1) – (2) (2017). 820.30(1) – (2) with all other wells on the same property . . . has a capacity [to pump] more than 100,000 gallons per with all other wells on the same property . . . day.”); NR 820.12(2)–(4) (2017) (defining Class 1, Class 2, and Class 3 trout streams). 2, and Class Wisconsin1, Class regulations NR 820.12(2)–(4) (2017) (defining Class take into account the existence of such streams when direct the Department of Natural Resources to high capacity wells. W considering and approving applications for new 300 lakes, most300 lakes, fromare largely sourced of which groundwater. many below the ground. lies only a few feet the aquifer parts of the region, is whetherconnected. these two phenomena are to explain the previously “[i]rrigation stresses are sufficient report found that that have prevailed since observed low-water conditions rare or never before 2000 in the Wisconsin central sands.” was at average or slightly below average levels, ruling out a drought as the was at average or slightly below average likely cause of the lower levels. acres overlying a shallow glacial aquifer in parts of Adams,parts of in Marathon, aquifer glacial a shallow overlying acres Marquette, Shawano, Waupaca, Portage, Waushara, and Woodcounties. increased pumping a net “recharge reduction” sufficient activities cause to water levels. explain the drastic decreases in surface A 2018] miles contains over 800 The region “trout streams” of high-quality in the Central Sands region. in the Central Sands and streamand some have been substantially lower, discharges lakes and streams disappear during dry seasons. substantially has grown significantly in recent decades. has grown significantly streams pumping has been diverted due to groundwater for agriculture. 40672-mqi_22-1 Sheet No. 68 Side A 05/20/2019 14:43:36 A 05/20/2019 68 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 68 Side B 05/20/2019 14:43:36 , 41 M K As As C Y Egan, 40 As to to As See, e.g. 43 [Vol. 22:1 [Vol. see also 9/21/2018 1:52PM One of those The Compact, an 46 45 Waukesha is the first 47 . 627, 646 (2016); . 627, EV . L. R . L. In 2003, city leaders signed a In 2003, city leaders ARQ 42 note 43, at 639. note 43, at Diversions from the Great Lakes: Out of the Diversions from the Great Lakes: Out of the supra and its application drew close attention drew close and its application , 100 M 48 “Death by a Thousand Straws”: Why and How the Great How and Straws”: Why a Thousand “Death by note 18, at 256–64. note 18, at note 41, at 646–47. note 41, at note 41, at 634. note 41, at , supra ) MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. . 361, 365, 370–71 (2014). . 361, 365, 370–71 Christina L. Wabiszewski, . § 281.343(4n)(c) (communities in counties that straddle the basin line may basin the straddle counties that (communities in 281.343(4n)(c) . § supra supra Amanda K. Beggs, Egan ELETE EV D . § 281.343(4m) (“All new or increased diversions are prohibited” with certain . § 281.343(4m) (“All new TAT OT OT L. R N . S O TAT IS (D . S W OWA IS see generally INAL INAL See generally See generally . at 647. See . § 281.343 (2015–16); Wabiszewski, .F These legal and practical circumstances resulted in Waukesha deciding resulted circumstances legal and practical These Id , 100 I 44 TAT note 18, at 264. note 18, at 44. Id. 45. by the state legislatures of all member states, The Great Lakes Compact has been enacted 42. Wabiszewski, 43. 46. W 40. 41. 48. Wabiszewski, 47. 5 J. Nat. Sci. Research 72, 72 (2015). The story of the water supply in Waukesha, of the water supply The story Wisconsina textbook is Before it could tap the Great Lakes for its public water supply, however, Before it could tap the Great Lakes . S TRIFLING IS 9. S 9. W approved by Congress, and was signed by then-President George W. Bush on Oct. 3, 2008. approved by Congress, and was signed by then-President Watershed and in Contravention of the Compact of and in Contravention Watershed 2. Waukesha,Compact Wisconsin, Lakes and the Great apply for an apply exception to the general prohibition on diversions, provided certain conditions are met). supra consent order with the State of Wisconsinconsent order with and agreed to take “steps to achieve compliance radionuclide requirements” with state by December 2006. community to seek that exception, to seek community federal standards, the EPA ordered Waukeshafederal standards, to find a safe water supply by 2018. exceptions); Waukeshagrew, so did the demand eventual “mining” on its wells. The of the plummetingaquifer resulted in levels and increasing contamination. water agreement between Wisconsin and the other Great Lakes states, generally Great Lakes water outside of a ban on new and increased diversions operates as the Great Lakes basin, with certain limited exceptions. Growth on Groundwater Levels Using Remote Sensing-Growth on Groundwater Levels Using Remote Erbil City, Kurdistan Region of Case Study: Iraq, 132 of radium—aEventually, levels carcinogen—in the deep aquifer came to far water standards. exceed federal drinking example ago, Over a century degrades a resource. overuse slowly of how Waukesha became known spring water, the quality of its “Spring City” for as believed by some and even known nationwide healing properties. to have exceptions allows communities basin, but within the counties located outside for a diversion. that straddle the basin line, to apply Lakes Council Should Define “Reasonable Water Supply Alternative” Within the Great Lakes Compact to abandon its historic springs, and turn to the comparatively springs, and turn to the to abandon its historic abundant Lakes. about twenty milesfreshwater resource to its east—the Great faced a legal hurdle—theWaukesha Great Lakes Compact. 40672-mqi_22-1 Sheet No. 68 Side B 05/20/2019 14:43:36 B 05/20/2019 68 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 69 Side A 05/20/2019 14:43:36 A 133 ATER , N.Y. N.Y. , 55 W and the 52 L.J. 409 (2009); L.J. 409 9/21/2018 1:52PM . ATIONAL L ’ Id , N NT . I IS GENCY . A , 27 W ROT . P (2012). All eight Great Lakes states had Lakes Great All eight NVTL Fortunately for Waukesha, none 50 HANGE 51 C LIMATE Water Scarcity, Conflict, and Security in a Climate Change in and Security Scarcity, Conflict, Water C Climate and Water Policy: When is the Right Time to Adjust . 425 (2011); U.S. E Waukesha Plan for Lake Michigan Water Raises Worries Waukesha Plan for Lake Michigan Water Raises EV 53 Under the Compact,Under Waukesha to demonstrate, had [https://perma.cc/F4LB-C6A2]. L. R ) ESPONSE TO It also repeatedly expressed a concern that granting Waukesha’sIt also repeatedly expressed a concern that granting 49 note 54 at 415–16, 419–24. note 54 at 415–16, : R Id. ELETE ATER Gabriel Eckstein, D D. Climate Change and Water Resources . § 281.343(4n)(c)(1)(g) (“Council approval shall be given unless one or more . § 281.343(4n)(c)(1)(g) (“Council approval shall . W OT OT supra These mayclimatic include impacts such as droughts and . §§ 281.343(4n)(c)(1)(d), (4n)(d)(1), (2), (4). N , Monica Davey, SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O TAT TRATEGY ENV 54 (D TAT City of Waukesha, No. 2016-1 (Great Lakes-St. Lawrence River Basin Water Res. . S IS . S INAL INAL See IS See, e.g. See generally 2012 S .F , 14 U. D (Aug. 25, 2015), https://www.nytimes.com/2015/08/26/us/waukesha-plan-for-lake-michigan- 51. W 50. W 55. Eckstein, 53. 52. Application by the City of Waukesha, Wisconsin for a Diversion of Great Lakes Water 54. 49. These case studies These case studies serve intervention, they may tales; without as cautionary The onset of climate change will pose many challenges for water resources challenges for water manyclimate change will pose of onset The M K TRIFLING IMES ROGRAM C Y 9. S 9. Compact Council May 4, 2017) (opinion) http://www.glslregionalbody.org/Docs/Waukesha/Compac t%20Council%20Opinion%20on%20GLSLCI%20Request%20for%20Hearing%205-4-17.pdf generally argued that the public input process [https://perma.cc/SC52-TZUD]. The Cities Initiative alternative” that that was could have avoided water supply “reasonable inadequate and Waukeshahad a the need for the diversion. from Lake Michigan and an Exception to Allow the Diversion, Exception to Allow the No. Lake Michigan and an 2016-1 from (Great Lakes-St. Lawrence River Basin Water 21, 2016) (final Res. Council June decision) http://www.glslregionalbody.org/Doc s/Waukesha/Waukesha—Final%20Decision%20of%20Compact%20Council%206-21-16.pdf [https://perma.cc/6JQ3-7SE6]. council members vote to disapprove.”). council members vote to application would set a negative precedent authorizing future “straws in the lake.” application would set a negative precedent authorizing future “straws in the lake.” herald a looming threat for other parts of Wisconsin on that depend groundwater. Waukesha Lakes of an exception in the Great took advantage Compactto secure a more water stable supply, but other communities will certainly not be so fortunate. the opportunity to veto the application. the opportunity to management. water-raises-worries.html?_r=0 Dustin Charapata, Conference Report, Course? approval survived a subsequent legal challenge by the Great Lakes and St. a subsequent legal challenge by approval survived Lawrence Cities Initiative. among alternative,” that water supply it had “no reasonable other things, that use and through the efficient avoided could not be reasonably its need be limited the diversion would supplies, that of existing water conservation to impacts cause no significant it would amounta “reasonable” and that of water, the basin waters. of or quality to the quantity locally and nationally. locally did—the Compact application in June 2016, Council approved its P 2018] World: Challenges and Opportunities for International Law and Policy Opportunities for International Law and Challenges World: T floods, as well as corresponding impacts to agriculture and food security, public and food security, to agriculture impacts floods, as well as corresponding health impacts, and environmental impacts on ecosystems and species. 40672-mqi_22-1 Sheet No. 69 Side A 05/20/2019 14:43:36 A 05/20/2019 69 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 69 Side B 05/20/2019 14:43:36 , , M K . J. EDU C Y . 58 ISC OLUM , at 85. , W [Vol. 22:1 [Vol. supra 9/21/2018 1:52PM , 39 C (Aug. 2016). This 57 HALLENGES J. 117, 117 (2009) (citing 117 J. 117, C Yahara 2070 The University of 56 HESE T ESOURCES . R EET AT . 233, 234 (2004). In contrast, the Clean M EV , 49 N . L. R ANNOT C Examining Tribal Environmental Law NVTL E Comprehensive River Basin Management: The Limits of Emissions Trading: A Cost-Effective Approach to Reducing Emissions Trading: A Cost-Effective Approach What Climate Change Means for Wisconsin EGIMES R ORDHAM ) Managing Interstate Water Resources: Tarrant Regional and Beyond MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. , 15 F EGAL ELETE D L James L. Huffman, OT OT N By the early 1970s, however, the federal governmentBy the early 1970s, however, the federal took on O 59 Univ. of Wis. Water and Climate Project, Sustainability (D . L.J. 235, 235–36 (2014) (“issues of water resources management have been left in the left in been (“issues of water resources management have (2014) L.J. 235, 235–36 . XISTING INAL INAL See See, e.g., .F NVTL II. E . E . L. 42, 85 (2014); Sonya Dewan, 57. 56. U.S. Envtl. Prot. Agency, 58.Ann Kronk Warner, Elizabeth 59. Multiple levels of government play a role in nonpoint source management. Multiple government levels of play a role in nonpoint source Nonpoint source pollution presents difficult regulatory challenges because regulatory challenges presents difficult Nonpoint source pollution The problems the potential to in the previous section have described EX TRIFLING A.Cracks the Pollution: The Elephant That Fell Through Nonpoint Source NVTL 9. S 9. a “tradition of federal deference to state responsibility for water allocation and management”); a “tradition of federal deference to state responsibility for water allocation and management”); Alexandra Campbell-Ferrari, Traditionally, decisions about water allocation and managementTraditionally, decisions about water have been left to the states. document has been removed from EPA’s current website but is temporarily available at document has been removed from EPA’s current https://19january2017snapshot.epa.gov/sites/production/files/2016-09/documents/climate-change- author. wi.pdf [https://perma.cc/H4S7-ADYM] and is also on file with the detailed examinationdetailed impacts of these paper. of this scope the is beyond Wisconsin willimmune.certainly not be Impacts here will likely include degraded water flooding and increased quality. Wisconsin’s Water and Climate Sustainability has simulated Project an our region that explore how set of scenarios innovative may respond to the devastating impactspotentially with climate associated change. hands of states”). an increasing role in pollution control. The bellwetheran increasing role in pollution control. of federal water protection laws, the Clean Water Act (“Act”), to “restore and is intended of the Nation’s and biological integrity maintainthe chemical, physical, 44 T Collaborative, Stakeholder-Based, Water Governance Collaborative, Stakeholder-Based, Nonpoint Source Pollution of problemsits origin and magnitude in identifying over time. Despite widespread source of water recognition that it is the leading quality impairments, approaches have been almost current regulatory completely unsuccessful in controlling water quality impacts from nonpoint sources. Water Act has been very successful in reducing pollution from point sources. Warner, from pollution reducing in successful been Water very Act has devastate the Great Lakes and the population that relies on them. Yet existing Lakes and the population that devastate the Great inadequate to respond, as described and regulations are federal and state laws in the following sections. E 134 https://wsc.limnology.wisc.edu/yahara2070/about-yahara-2070 [https://perma.cc/4BUA-TDZA] (last https://wsc.limnology.wisc.edu/yahara2070/about-yahara-2070 visited Oct. 3, 2017). 40672-mqi_22-1 Sheet No. 69 Side B 05/20/2019 14:43:36 B 05/20/2019 69 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 70 Side A 05/20/2019 14:43:36 67 64 135 Unlike 63 9/21/2018 1:52PM and Sovereign Immunity: , 399 F.3d 486, 491 (2d Cir. 2005). 30 Envtl. L. (2000) (“[N]onpoint sources are, 527, 533 , and accompanying text (Act regulates “discharge of any to navigable waters) (emphasis added). to navigable waters) (emphasis supra 91 F.2d 1337, 1352–55 (N.D. Cal. 2000). , For example, the states to develop Section 208 directs point sources ) 65 source pollution. source pollution. ELETE D OT OT 66 N SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O The precise meaningsThe precise terms of these much have provoked (D nonpoint Pronsolino v. Marcus The core of the Act prohibits the “discharge of any pollutant by of any pollutant the “discharge of the Act prohibits The core Final Decision, note 52, Final Decision, note 62 and serves as the primaryserves as and over water authority federal of source 61 INAL INAL Rather than taking a regulatory approach, as with point sources, Rather than taking a regulatory approach, Cf. See Waterkeeper Alliance, Inc. v. U.S. Envtl. Prot. Agency 60 .F 68 Identify . . . agriculturally and silviculturally related nonpoint sources and silviculturally related nonpoint Identify . . . agriculturally 68. 65. Cordiano v. Metacon§ 2009) (citing 33 575 Gun Club, Inc., 219 (2d Cir. U.S.C. F.3d 199, 66. 33 U.S.C. §§ 1288(a), 1288(b)(2)(F). 67. Appalachian Power Co. v. Train, 545 F.2d 1351, 1373 (4th Cir. 1976) (“Congress 64. 63. Robin Kundis Craig, Idaho Sporting Congress v. Thomas 62. 33 U.S.C. §§ 1311(a), 1342, 1362(12). 60. 33 U.S.C. § 1251(a) (2012). 61. of pollution, including return flows fromof pollution, including irrigated agriculture, and their cumulate effects, runoff from manure areas, and from disposal land used and (ii) set forth procedures and for livestock and crop production, feasible requirements) to control to the extent use methods (including land such sources. Courts have consistently interpreted the statute this way since its passage. the statute this way interpreted Courts have consistently The term Watersource” is not defined in the Clean “nonpoint and has Act M K TRIFLING C Y consciously distinguished between point consciously source and nonpoint source discharges, authority giving EPA former.”). under the [Clean Water] Act to regulate only the 9. S 9. 1251(a)(7) (1987)). pollutant by any person” from Federal Facility Nonpoint Sources, the APA, and the Meaning of “In the Same Manner and to the Federal Facility Nonpoint Sources, the APA, Entity,” any Nongovernmental Extent as Same by definition, not point sources” ). By contrast, the Clean Water Act defines “point source” to mean “any discernible, confined and container, rolling stock, concentrated animal feeding channel, tunnel, conduit, well, discrete fissure, discrete conveyance, including but notoperation, or vessel or be discharged.” which pollutants are or other may 33 floating craft, from U.S.C. limited to any pipe, ditch, § 1362(14). point sources, nonpoint sources are not point sources, nonpoint permitsubject to the national system. “areawide waste treatment management plans” to, among other things, “areawide waste treatment management plans” to, among other waters,” Instead, the statute as initially drafted “leaves Instead, the statute the regulation source of nonpoint pollution to the states.” nonpoint pollution, in 1987, Congress After states largely failed to control Watercreated a new section of the Clean intended to incentivize them Act to do so. 2018] fromany person” as authorized waters, except source” to navigable any “point by permit. litigation, but at issue here is the Clean Water is the Clean but at issue here litigation, Act’s regulation—or lack thereof—of pollution. generally been taken to meangenerally been taken point sources. all sources other than Congress created a grant program that provides funds to states that develop and that provides funds to states Congress created a grant program implement nonpoint source management programs. Specifically, Section 319 40672-mqi_22-1 Sheet No. 70 Side A 05/20/2019 14:43:36 A 05/20/2019 70 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 70 Side B 05/20/2019 14:43:36 , M K C Y 79 [Vol. 22:1 [Vol. 9/21/2018 1:52PM As an example the Clean Water 77 DNR §§ NR DNR §§ 73 DNR. § NR 151 ODE Nevertheless, as noted Nevertheless, ODE . C 71 . C DMIN and to prepare managementand to prepare DMIN . A 69 IS . A IS W 75 notes 45–53 and accompanying text. notes 45–53 and accompanying Between 1990 and 2016, the EPA 1990 and 2016, Between These standards consist of “minimum 70 319 Grant Program for States and Territories 80 see generally The state has developed and attemptedThe state has developed to see also supra 76 DNR § NR 151 (2017). DNR § NR 151 ) note 6. note 6; note 58, at 85. note 58, at MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. note 6, at 9; ODE . § 281.16(3)(e) (2015–2016); W ELETE . C D supra supra TAT supra supra note 59 and accompanying text. note 59 and accompanying OT OT . S N DMIN IS O U.S. Envtl. Prot. Agency, W 33 U.S.C. § 1251(a)(2) (a goal of the Clean Water33 U.S.C. § 1251(a)(2) (a goal of the Clean Act is to “provide[ ] for the . A (D 33 U.S.C. § 1362(12) (expressly excluding “agricultural stormwater discharges and 33 U.S.C. § 1362(12) (expressly excluding “agricultural Kronk, IS By definition, nonpoint sources are outside that scope and are only sources are outside that scope By definition, nonpoint 72 See See INAL INAL See See Cf. See supra 74 .F But older Wisconsin farms are often subjected to such standards only 78 77. DNR, Wis. 78. W 73. 74. 75. 76. DNR, Wis. 71. 72. 69. 33 U.S.C. § 1329(a)(1)(C). 70. 33 U.S.C. § 1329(b)(1). 80. DNR, Wis. 79. The WisconsinDepartment similarly of Natural Resources (DNR) Wisconsin’s source pollution “centers on statewide approach to nonpoint In pursuing its goal of fishable and swimmableIn pursuing its goal waters, TRIFLING return flows from irrigated agriculture” from the definition of a point source). definition of a point from the return flows from irrigated agriculture” 9. S 9. protection and propagation of fish, shellfish, and wildlife and provide[ ] for recreation in and on the protection and propagation of fish, shellfish, water”). https://www.epa.gov/nps/319-grant-program-states-and-territories [https://perma.cc/NK7Z-55NY] https://www.epa.gov/nps/319-grant-program-states-and-territories 2017). (last updated Oct. 19, (agricultural and non-agricultural performance standards). (agricultural and non-agricultural performance 151.09(4)(d), 151.09(5). loosely regulated by the Clean Water Act. by the Clean Waterloosely regulated programs fromadded pollution “for controlling the sources to nonpoint watersnavigable within the State.” awarded the program. in aid under over $4.2 billion expectations” applied to a variety of land use practices in both agricultural andexpectations” applied to a variety of above, nonpoint sources remainabove, nonpoint of water impairment the leading cause nationally. implement its Nonpoint Source Program Management Plan. identifies nonpoint source pollution as “a leading cause of water source pollution as “a leading identifies nonpoint quality problems in Wisconsin.” performanceenforceable agricultural and non-agricultural standards and manure management prohibitions.” Act has been quite successful at addressing pollution from “point sources” such “point sources” such pollution from successful at addressing Act has been quite as pipes. 136 of the statute directs a state seeking federal funding to prepare assessment prepare to funding federal a state seeking directs statute of the best managementreports “identifying and measures practices each to control of nonpoint sources” and subcategory category of its activities under that program, the DNR has set “Runoff Management” minimum standards of performance and non-agricultural for agricultural sites. when large cost-share percentage grantswhen large cost-share are available to fund compliance. 40672-mqi_22-1 Sheet No. 70 Side B 05/20/2019 14:43:36 B 05/20/2019 70 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 71 Side A 05/20/2019 14:43:36 137 9/21/2018 1:52PM and standards for and standards for 91 nutrient management maximum soil erosion 88 a maximum “phosphorus 86 In interviews, DNR staff 84 82 94 It includes numerousIt includes agricultural 83 and manure managementand standards DNR § NR 151.04. The Phosphorus Index is an “agricultural land DNR § NR 151.04. The Phosphorus Index is DNR §§ NR 151.07–151.08 (prohibiting manure overflows, 89 DNR § NR 151.03 (intended to “prevent tillage operations from DNR § NR 151.03 (intended to “prevent tillage DNR § NR 151.055 (prohibiting significant discharges of process DNR § NR 151.055 (prohibiting significant discharges DNR § NR 151.05 (establishing construction, alteration, and closure DNR § NR 151.05 (establishing construction, DNR § NR 151.07(3) (manure, fertilizer, and other nutrients must be DNR § NR 151.07(3) (manure, fertilizer, and DNR § NR 151.02 (maximum soil erosion rate should be less than or DNR § NR 151.02 (maximum soil erosion rate DNR §§ NR 151.105–121. DNR §§ NR III-IV. DNR § NR 151, Subch. ) note 6, at 10. note 6, at note 6, at 11. note 6, at 92 ODE ODE ODE ODE ODE ODE ODE ODE ODE ELETE . C . C . C . C . C . C . C . C . C D The but depends standards sets these DNR on the Wisconsin supra supra OT OT 81 N Non-agricultural standards also exist and include sedimentstandards also exist and include Non-agricultural DMIN DMIN DMIN DMIN DMIN DMIN DMIN DMIN DMIN SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O . Effective horizontal coordination between the two responsible Effective horizontal coordination . A (D 90 . A . A . A . A . A . A . A . A IS IS IS IS . at 8, 10 (“WDATCP establishes technical standards and other elements related to IS IS IS IS IS 93 process wastewater handling restrictions, handling process wastewater INAL INAL Id See id regulations for manure storage facilities, .F 85 87 84. W 83. Telephone interview with with Brian Weigel (WDNR), Corrinne Johnson (WDNR), and 91. W 86. W 94. 93. DNR, Wis. 88. W 90. W 89. W 85. W 81. DNR, Wis. 82. 92. W 87. W In the end, nonpoint source pollution remainsIn the end, nonpoint source pollution the leading source of water However, implementation of the standards remains a significant challenge, challenge, However, implementation standards remains of the a significant M K TRIFLING C Y 9. S 9. Andrew Craig (WDNR) (May 8, 2017) (notes on file with author). author). Andrew Craig (WDNR) (May 8, 2017) (notes on file with program implementation”). unconfined piles, and direct runoff from stored manure into state waters). unconfined piles, and direct runoff from stored manure into state “applied in conformance with a nutrient management plan”). “applied in conformance with a nutrient management management planning tool for assessing the potential of a cropped or grazed field to contribute management planning tool for assessing the 151.015(15s). phosphorus to the surface water.”). Wis. Code § NR Admin. standards for new and existing facilities). standards for new and existing destroying stream banks and depositing soil directly in surface waters”). in surface destroying stream banks and depositing soil directly impairments Wisconsin. in Under the Act, each state is required to prepare a wastewater to waters of the state). wastewater to waters of the soil.”). that equal to the “‘tolerable’ (T) rate established for discharge regulations applicable to construction sites applicable discharge regulations rates, performance setbacks, including tillage standards, prohibitions. described this authority as robust. this authority described Department Consumer Trade, and of Agriculture, Protection to implement the program with county officials. in conjunction developed areas. developed 2018] developed urban areas. developed urban index,” state agencies, as well as effective vertical coordination between the agencies vertical state agencies, as well as effective difficult. and the counties, has also proven planning requirements, primarily due to “insufficient staff levels, due to lack of funding but also levels, and the lack resources at both the state and county inadequate time and soft (e.g. management) for both hard (e.g. structural) and of cost-share dollars practices.” 40672-mqi_22-1 Sheet No. 71 Side A 05/20/2019 14:43:36 A 05/20/2019 71 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 71 Side B 05/20/2019 14:43:36 96 M K 100 C Y OINES M ES [Vol. 22:1 [Vol. Wisconsin , D 9/21/2018 1:52PM 95 101 www.desmoinesregister.com/ http:// AM) Des Moines Water Works Won’t Appeal Lawsuit (Mar. 20, 2017, 11:50 The Water Works been an “allege[d] that there has ) note 6, at 24. note 6, at 97 MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. With Water Works’ Lawsuit Dismissed, Wateris the Legislature’s With Quality WaterWorks’ 99 ELETE EGISTER D supra R B.Species Ineffective Controls on Invasive OT OT N The Des Moines Water Works sued several upstreamdrainage O 98 OINES (D 33 U.S.C. § 1313(d) (2012). . at *3. . at *1, *2. *2. . at *1, at 24-25. The next was the leading 24-25. cause atmospheric deposition, leading cause at is which M 103 Id. Id Id INAL INAL See ES Stowe also implored Legislature to take action “addressing the Iowa (Apr. 11, 2017, 8:19 PM), http://www.desmoinesregister.com/story/news/2017/04/11/des- .F , D 102 102. MacKenzie Elmer, 97. Id, 101. 99.*1. Bd. of Water Works Trs. of Des Moines, 2017 WL 1042072, at 100. 98. Bd. of Water Works Trs. of Des Moines v. Sac Cty. Bd. of Supervisors, No. C 15-4020- 95. 96. DNR, Wis. 103. Donnelle Eller, Frustrated with the ruling, Des Moines Water Works CEO Bill Stowe Tensions caused by the intractable nature of the nonpoint source pollution source pollution of the nonpoint nature caused by the intractable Tensions Federal and state laws, regulations, and policies have also proven largely and policies have also proven largely Federal and state laws, regulations, TRIFLING EGISTER 9. S 9. meaningful, long-term, sustainably funded policy solutions to our serious water solutions to our serious funded policy meaningful, long-term, sustainably problems.” story/money/agriculture/2017/03/17/judge-dismisses-water-works-nitrates-lawsuit/99327928/ [https://perma.cc/66C7-BUF2]. issued a news release blaming “unregulated industrial agriculture” for water pollution problems”“expensive, serious and escalating in Central Iowa. problemfailure of federal and Iowa over in 2015. Frustrated with the boiled state law of Iowa pollution, one political subdivision to address nonpoint source sued another. districts, alleging state tort claims and federal and state statutory and and federal state tort claims districts, alleging constitutional claims. Ultimately, dismissed the federal district court all claims the drainage against Supremedistrict after the Iowa to questions certified by the Court, responding district court, found that the drainage districts had unqualified immunity against remedies. the Water Works’ claims for damages and equitable for about 19% of impairments. Point sources were the leading cause for almost none of the for about 19% of impairments. Point sources impairments. increased level of nitrates in [its] water supply caused by the drainage districts nitrates in [its] water supply caused increased level of channeling of nitrate-contaminated the water supply.” ground water into LTS, 2017 WL 1042072, at *1 (N.D. Iowa Mar. 17, 2017). (N.D. Iowa Mar. 17, LTS, 2017 WL 1042072, at *1 Problem R moines-water-works-not-appeal-lawsuit/100321222/ [https://perma.cc/BGB7-2VGX]. 138 Nonpoint is source pollution far the leading cause—itby source is the dominant for 43%of pollution 15% a source to another these listings and of of the impairedlisted. waters list of waterslist meeting not water current standards. quality proposed 301 pollutant/waterproposed segment quality combinationslist. for its 2014 40672-mqi_22-1 Sheet No. 71 Side B 05/20/2019 14:43:36 B 05/20/2019 71 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 72 Side A 05/20/2019 14:43:36 , 111 112 139 RADE ESSELS V , T 16 U.S.C. NDIGENOUS -I 9/21/2018 1:52PM ON HIPPING but only to the to but only S N see also VERSEAS O , EPA 830-R-15-004, 106 AKES L ARMFUL GENCY . A REAT AKES FROM L ., G ROT D . P B 108 REAT This is particularly true of zebra G , OTA-F-565, H NVTL 109 tion Control Act (NANPCA). ESEARCH . R SSESSMENT note 109, at ix. note 109, at In 2016, President ObamaIn 2016, President signed another RANSP . A of ballast water carried to the United States United States of ballast water carried to the , T ECH 107 supra T ISCHARGES INTO THE , at ix-x (2008); U.S. E D 163 (1993). OUNCIL In an early response to this problem, and especially the ) C FFICE OF ATER PECIES 110 TATES ELETE S W 104 S ., O D That Order generally imposedThat Order generally to duties on federal agencies OT OT ESEARCH N ONG SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O 105 NITED (D ALLAST NVASIVE §§ 4702(5), 4711(b)(2)(A). at 6184. U 2013 1 (2015) (ballast water is a “primary vector” for introduction of aquatic invasive 2013 1 (2015) (ballast water is a “primary vector” I . B Id Id. Id. INAL INAL TO .F QUATIC 2010 107. (Dec. 8, 2016) 108. Exec. Order No. 13,751, 81 Fed. Reg. 90181 109. Nat’l R 111. that one purpose of NANPCA is to 16 U.S.C. §§ 4701–4751 (2012). Congress stated 112. 105. the National Invasive Species Council to oversee and For example, the Order created 106. 104. U.S. C 110. Nat’l Research Council, A Almost twenty-five years ago, in 1993, the congressional Office of the congressional ago, in 1993, twenty-five years Almost Many Great the Lakes originated in the of the invasive species threatening The core problemsidentified in the OTA report remain unsolved today M K TRIFLING NALYSIS OF PECIES IN THE C Y 9. S 9. implement the federal response to invasive species, among other duties. Exec. Order No. 13,112, 64 implement the federal response to invasive species, 1999). Fed. Reg. 6183, 6184–85 (Feb. 3, “prevent unintentional introduction and dispersal of nonindigenous species into waters of the United “prevent unintentional introduction and dispersal of nonindigenous species into waters of Id. § 4701(b)(1); other requirements.” management and ballast water through States § 4711(b)(2)(B)(iii); 33 C.F.R. §§ 151.1510(a)(3), 151.2035(b)(3) (2017). extent “practicable” and “subject to the availability of appropriations, of appropriations, and “subject to the availability extent “practicable” limits.”and . . . budgetary inadequate to control the spread of invasive species, as discussed next. of spread control the to inadequate next. as discussed species, invasive AssessmentTechnology “[t]he current found that (OTA) Federal framework is regulations, a policies, of laws, uncoordinated patchwork largely and programs. Some problems. on narrowly drawn focus Many address others peripherally match efforts only partially present Federal species]. In general, [invasive the problems at hand.” ballast water holds of ocean going vessels. ballast water holds of ocean going despite some small improvements in the federal government’s organizational species promptedresponse to invasive Clinton’s Executive by then-President Order 13,112. spread of invasive mussels in the Great Lakes, Congress enacted the Non- Congress enacted the Non- Lakes, spread of invasive mussels in the Great Indigenous Aquatic Nuisance Preven and quagga mussels. from areas beyond the United States’ exclusive economicareas beyond zone (EEZ), from meaning beyond 200 milescoastal waterscoastline. of the United extending States AND NANPCA regulates the release S 2018] FROM Executive Order that continued federal efforts to control invasive species and continued federal efforts to control Executive Order that change. incorporated considerations of climate A prevent the introduction and prevent the introduction establishment of invasive species species to the Great Lakes). 40672-mqi_22-1 Sheet No. 72 Side A 05/20/2019 14:43:36 A 05/20/2019 72 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 72 Side B 05/20/2019 14:43:36 M K C Y OLLUTANT ISCHARGES P D [Vol. 22:1 [Vol. 9/21/2018 1:52PM But the measures ATIONAL 120 ERMIT FOR P Third, the vessels have 16 U.S.C. § 4711(b)(2)(B)(ii) 115 That exchange eliminatesThat exchange 119 113 ENERAL accord G (VGP) (2013). The Second Circuit also ESSEL ESSEL V , EPA HQ-OW-2011-0141-0949, N 121 (NPDES) V The court ultimately agreed and remanded some Second, such vessels maySecond, same retain the ballast GENCY e they are within the EEZ. e they 118 114 . A YSTEM ) PERATION OF A S MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. O note 109, at 2. ROT ELETE Ballast Water Management: Federal, States, and International Regulations, International Regulations, Ballast Water Management: Federal, States, and D . P supra OT OT N ORMAL O NVTL N 116 (D LIMINATION 33 C.F.R. §§ 151.1510(a)(2), 151.2035(b)(2); 33 C.F.R. §§ 151.1510(a)(2), 151.2035(b)(2); . 315, 321 (2010). E . at 571–84. INAL INAL EV Id See .F Four environmental sued EPA over the VGP, claiming groups it that 808 F.3d 556, 564, 567-68 (2d Cir. 2015). , 121. 16 U.S.C. § 941c(b)(3) (2012). Historically, this has been done by strategic applications 119. 116. 16 U.S.C. § 4711(b)(2)(B)(iii) (2012); 151.2025 (2017). 33 C.F.R. §§ 151.1510(a)(3), 118. Natural Resources Defense Council v. EPA, 808 F.3d 556, 569–70 (2d Cir. 2015). 115. 117. U.S. E 113. 16 U.S.C. § 4711(b)(2)(B)(i) ; 33 C.F.R. §§ 151.1510(a)(1), 151.2035(b)(1). 113. 16 U.S.C. § 4711(b)(2)(B)(i) ; 33 C.F.R. 114. Cory Hebert, 117 120. U.S. EPA, The only other federal law particularly notable here is the Great Lakes Fish the Great Lakes Fish notable here is other federal law particularly The only At EPA the regulatory level, the a Vessel has also issued GeneralPermit These limited some—but efforts have occasioned not enough—positive TRIFLING ISCHARGE NCIDENTAL TO 9. S 9. of a “lampreycide” poison that controls, but does not eradicate, lamprey populations the Great in Lakes. and Wildlife Restoration Act, authority for the Great Lakes which provides Fishery Commission minimize” or to “eradicate sea lamprey invasive Lakes. populations in the Great or spread of aquatic nuisance species in the Great Lakes Great species and other in the waters United States”). nuisance of the of aquatic or spread the theoretical option to complythe theoretical option with other alternative methods approved by the Coast Guard. acted arbitrarily and capriciously when it selected the standards and and capriciously when it selected acted arbitrarily requirements in the VGP. have not been, and likely cannot be, completelyhave not been, and likely cannot be, effective, and much of the done. damage has already been summarized its provisions as part of the discussion in Nat. Res. Def. Council v. U.S. Envtl. Prot. summarized its provisions as part of the discussion in Nat. Res. Def. Council v. U.S. Envtl. Agency (vessels may discharge ballast in “other waters where the in discharge exchange does ballast (vessels not may infestation pose of a threat (VGP) that regulates ballast water discharges pursuant to the Clean Water ballast water discharges pursuant (VGP) that regulates Act. analyzing ballast water discharges a report results. In 2015, the EPA prepared ballast water flushing requirementsto the Great Lakes and concluded that are “estimated to be at least 95 percent effective” and have caused a decrease in the rate of new invasive species discoveries in the Great Lakes. D I 140 NANPCA requires vessels carrying such water to choose one of three of three one to choose water such carrying vessels requires NANPCA compliancemay such vessels options. First, completelysuch “exchange” the 200-mile before entering ballast water EEZ. 37 S.U.L. R water during the entire tim water during portions of the permit to EPA for reconsideration. the invasive the invasive species from the ballast water into by discharging themeither deep sea waters, water of the ballast the salinity content or by increasing levels to sustain life. that cannot 40672-mqi_22-1 Sheet No. 72 Side B 05/20/2019 14:43:36 B 05/20/2019 72 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 73 Side A 05/20/2019 14:43:36 128 141 It is 129 In certain 9/21/2018 1:52PM 125 As described next, As described next, 124 , http://dnr.wi.gov/topic/invas to impose conditions as needed. 2011 WI 54, ¶¶ 3–4, 335 Wis. 2d 47, 799 Control Methods , 127 However, by their very nature, invasive by their very However, 122 But most wells do not fall into those categories; 126 C. Overpumping Groundwater ) The agency also has general authority as the state’s has general authority as the state’s The agency also 123 ELETE D OT OT , WI Dep’t of Natural Resources, , WI N SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O Lake Beulah Mgmt. District v. DNR Wis. Stat. § 281.34(2). AKBA Ltd. P’ship v. DNR, 2002 WI 106, ¶ 12, 648 N.W.2d 854; Borsellino v. note 18, at 50–65 (describing the initial lamprey invasion, population boom, and note 18, at 50–65 (describing the initial lamprey (D See See, e.g. See See INAL INAL .F supra 125. Wis. Stat. § 281.34(2) (2015–16). 126. with respect to wells in groundwater Wis. Stat. § 281.34(4) (extended review required 127.2002). ABKA Ltd. P’ship v. Wis. DNR, 648 N.W.2d 854 ¶ 12 (Wis. 128. 129. The public trust doctrine can be traced back to ancient Roman law and the Institutes of 123. 124. 122. In those cases, the Department had historically relied on its general It is unlikely that the deficiencies in federal law in federal that the deficiencies unlikely It is willbe remedied by state- The WisconsinDepartment groundwater of Natural Resources regulates As an initial matter, one seeking to install a high capacity well must obtain Egan, M K TRIFLING C Y Justinian. Juliana v. United States, 217 F. 1224, 1253 (2016) “roots in the are Supp. 3d (doctrine’s DNR, 2000 WI ¶ 19, 606 N.W.2d App 27, 255. protection zones, wells for which morespring). and wells that could have a significant impact on a than 95% of the water withdrawn would be lost from the basin, N.W.2d 73. ives/control.html [https://perma.cc/E999-LJMH] (last updated Nov. 8, 2016). ives/control.html [https://perma.cc/E999-LJMH] (last updated Nov. 8, 9. S 9. authority under the public trust doctrine As the name suggests, that doctrine is generally taken to mean that a state must state a taken to mean that is generally doctrine As the name suggests, that particularly the navigable waters act as “trustee” of certain natural resources, people. for the trust beneficiaries—itsand manage themof the state, eventual control and management). special cases, the Department must conduct an environmental of the review well’s potential impacts. based solutions, by the commonbased solutions, Many executive order. law, or even by of the Wisconsin, states, including individual enacted some have invasive species control programsmeasures. or See 2018] and in such cases, the statute is silent regarding the scope of the Department’sand in such cases, the statute is silent to imposeauthority to review conditions on the operation of the application or the well. neither source of power is sufficient to address the overpumpingneither source of described in Section I.C. of this Article. approval from the Department constructing the well. before species are unlikely to remainspecies are true of This is especially state. a single within move typically even terrestrial species species, but water-based the about country with boundaries. little respect for political designated “trustee” under the public trust doctrine. designated “trustee” withdrawals—and wells— specifically high capacity 281 of the under Chapter Wisconsin Statutes. 40672-mqi_22-1 Sheet No. 73 Side A 05/20/2019 14:43:36 A 05/20/2019 73 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 73 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. 9/21/2018 1:52PM And in a 2016 133 , 146 U.S. 387 (1892). , 146 U.S. 387 In a remarkablehowever, turn of events, 132 This interpretation could prevent DNR from which borrowed itself from heavily the 134 130 131 ) MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. ELETE D 2017 Wisconsin Act 10 (signed June 1, 2017) (no additional Department Illinois Central Railroad Co. v. Illinois OT OT N 135 O (D See also INAL INAL .F 135. 132.2011). Lake Beulah Mgmt. Dist. v. Wis. 799 N.W.2d DNR, (Wis. 73 ¶¶ 3–5 133. Decision and Order, New Chester Dairy v. DNR, Case No. 2014CV1055 (Outagamie 134. State of Wis. OAG-01-16, Opinion Letter on the Application of Wis. Dep’t of Justice, 131. navigable Ordinance of 1787: The Northwest Territorial Government, art. IV (“The 130. Wis. Mississippi and the navigable waters leading into the Const. art. IX, § 1 (“the river All of this likely means that in cases where statute is silent—as the in all In 2011, the Wisconsin Legislature enacted Wis. Stat. § 227.10(2m), which In 2011, the WisconsinIn 2011, Supreme the public expansively interpreted Court TRIFLING 9. S 9. 10, 2016). approval is necessary for an existing high capacity well owner to repair, maintain, or reconstruct the approval is necessary for an existing high capacity well well within a 75-foot radius of the existing well to a new owner or to transfer it as part of a land sale). waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, and the carrying shall waters leading into the Mississippi St. Lawrence, and be common highways, and forever free”). 2015). County Cir. Ct. (Dec. 2, Groundwater Well53 (May Withdrawal Permits ¶ Capacity of High Issuance the 227.10(2m) to Stat. § Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways free”). and forever for modern civil systems.’”). law In this country, the United States Supreme Court recognized it the in seminal 1892 decision high capacity well applications other than the special exceptions noted above—well applications other than the special exceptions high capacity the Department conditions on the operation of high has no authority to impose capacity wells. requires explicit statutory or regulatory authority for actions taken by statutory or regulatory authority requires explicit administrative agencies, including the imposition of permit conditions. In late 2015, a Wisconsin § 227.10(2m) trial court relied on to prevent DNR from imposing permit. conditions in a high-capacity well certain trust doctrine as a valid basis for DNR to consider whether to grant, to consider whether basis for DNR as a valid trust doctrine well permit a high capacity grant, or deny conditionally on the well’s based impact waters of the state. on other Northwest Ordinance of 1787. Northwest 142 rooted in the state constitution, in the rooted Institutes of Justinian, part of the Corpus Juris Civilis, the body of Roman law that is the ‘foundation Institutes of Justinian, part of the Corpus Juris opinion, Attorney General Brad Schimelopinion, Attorney that “[t]hrough these concluded changes to the law, [DNR’s] back to the public trust duty . . . reverts is responsible for makingLegislature, which and statutes necessary to rules protect the waters of the state.” imposing high capacity well permit conditions—or conceivably, from taking constitutionality—and commonon the action whatsoever based solely law-any rooted public trust doctrine. that decision may be good law. no longer 40672-mqi_22-1 Sheet No. 73 Side B 05/20/2019 14:43:36 B 05/20/2019 73 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 74 Side A 05/20/2019 14:43:36 . 143 EV or (we 144 This can . L. R 140 141 139 ROP 9/21/2018 1:52PM . P NTELL . I ARQ 137 , 20 M OLUTIONS S Smith calls this combination a 136 Governing Water: The Semicommons of Fluid Property The solution, Smith writes, is to conceptualize NNOVATIVE This leads to an importantdilemma, because fluid 142 (Quantity)Quality to Water 138 III. I ) Semicommons in Fluid Resources Henry E. Smith, note 136, at 208. note 136, at . 445, 449 (2008) (“A semicommons exists where private and common ELETE D EV OT OT N supra SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O see also In the end, these public and private rights “interlock so tightly In the end, these public and private . L. R (D at 197–98. .; . . at 198. . at 197. 143 RIZ Id Id Id. Id. Id Id INAL INAL .F , 50 A 140. 141. 139. 142. Id. 143. 144. Smith, 136. Henry E. Smith, 137. 138. Professor Henry Smith has proposed that water and other “fluid resources,” water and other “fluid resources,” proposed that Smith has Professor Henry The final section of this Article section of this The final to map begins the theoretical out Smith of property law to fluid resources: poles analyzes two theoretical “[S]eparation between groups of uses is difficult,” Smith“[S]eparation between groups of uses notes, when it M K TRIFLING A. of the Semicommons Extending Smith’s Theory from Water Use Rights C Y 9. S 9. underpinnings for alternative approaches to water approaches for alternative underpinnings using Professor quality HenrySmith’s “semicommons.” theory of the possible It also identifies management,nonpoint source approaches to innovative one of the problems Similardiscussed above. development with respect to invasive species management and groundwater overpumping is left for future work. such as intellectual property, “call for hybrid property systems property, “call for hybrid property such as intellectual combining private and common elements.” that it makes sense to see them of semicommons.” as different versions fluid resources “to a regime of semicommons, in which different interacting regimes,uses are subject to different property some some private and common.” might incompatible add) when the uses are because one degrades the water’s the other’s use. To put this in Smith’spurity to the point that it is unfit for terms, “sometimes strategic behavior will allow more shifting a than benefits.” disproportionate proportionate cost to others and grabbing exclusion and governance. comes to fluid resources. property overlap and potentially interact.”). property overlap and potentially 2018] lead to conflict when (as Smith notes) the uses are on different scales; different are on conflict whenthe uses (as Smithto notes) lead resources are valuable for a variety of uses by a variety of users. resources are valuable for a variety Rights 195, 196 (2016). (2016). 195, 196 “semicommons” and admits much that it “require[s] more through fine-tuning resources.” rules . . . than do more-familiar kinds of 40672-mqi_22-1 Sheet No. 74 Side A 05/20/2019 14:43:36 A 05/20/2019 74 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 74 Side B 05/20/2019 14:43:36 M K C Y [Vol. 22:1 [Vol. . Yet in so It has long It has long In Smith’s 9/21/2018 1:52PM . L. 1081, 1083 146 . 147 NVTL quantity . at 466 (“Watertends law . at 466 quality , 21 E id Of course, the same is true 148 . L. 46, 62 (2013) (water quality and water Can the Clean Water Act Succeed as an Can the Clean Water Act Ecosystem NVTL , 833 N.W.2d 800 ¶¶ 87–88 (Wis. 2013). , 833 N.W.2d 800 ¶¶ 87–88 (Wis. . his analysis is primarilyhis analysis to the devoted Id & E 145 Semicommons 150 . L.J. . 199, 204 (2005) affect significantly can (“water quantity NERGY NVTL 149 . J. E . E Pollution Without Solution: Flow Impairment Problems Under Clean Pollution Without Solution: Flow Impairment Water Quality Under Western Water Law ) MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. ASH TAN note 136, at 456. note 136, at note 143, at 450 (“The Nature of Water (“The Nature of 143, at 450 note Law”); ELETE . W D EO , 24 S OT OT , H.B. Bowling Coal Co. v. Ruffner, 100 S.W. 116, 117–18, 122 (Tenn. 1907) N supra supra O , 4 G Reed Benson, (D . at 470 (citing “public trust uses”). In Wisconsin and many other states, the public trust public the other states, many and Wisconsin In “public trust uses”). (citing at 470 . Id See, e.g. INAL INAL .F see also Rock-Koshkonong Lake Dist. v. Wis. DNR B. to Leverage the Beyond Regulation: Other Innovative Proposals 147. Anne W. Squier, 146. PUD No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700, 719 (1994) 148. Smith, 150. 149. 145. Smith, Givenclose relationship between the and water water quality, it is quantity If one accepts the conclusions in this If one accepts the conclusions in this article that, first, Wisconsin waters WhileSmith’s workthe implications to generally refers the of TRIFLING 9. S 9. doctrine also protects uses tightly related to water quality, such as fishing, recreation, and scenic doctrine also protects uses tightly related to water quality, such as fishing, recreation, and beauty. (holding that “[a]ny use of . . . the water of a stream itself, which renders the water unwholesome, (holding that “[a]ny use of . . . the water of a stream itself, which renders the water unwholesome, offensive, or unfit for the purposes for which it is used, is unlawful.”). worth investigating whether the “semicommons”worth investigating should extend in some form both elements.to concerns over use the resource on Recognized rights to the responsibilities on the other. to corresponding should lead one hand Even prior to the advent of modern laws water that protect quality, courts had long held water renders it unfit for use by another, that where one riparian’s use of the latter. the former to the is liable to be viewed as either private property on the one hand or as a pure tort-like commons or a regulatory commons hand or as a pure tort-like one to be viewed as either private property on the law” seems an oversimplification given that Smith regime on the other.”). The reference to “water pollution control or other water quality concerns also refers here to private water rights rather than law.” germane to “water body could destroy its quality and even constitute (finding that reduction of the volume of a water “water pollution” under the Clean Water Act). been recognized that “[a]ny separation between that “[a]ny been recognized water and water quantity stands in the way artificial and quality is of solutions.” terminology, “the claim is that as the interactivity and importance of third-party interactivity is that as the terminology, “the claim effects become moremoreget important we will delineation effort but not only that it willthe form take of more governance.” quantity are “intimately and unavoidably linked”). quantity are “intimately and unavoidably semicommons for “water law,” “water for semicommons of water quality impacts Smith caused by third parties. that also recognizes navigation, may and public trust rights, such as certain public uses override water. private rights to use 144 many related to water quantity is tightly situations, that allocation of private water rights—in of private water allocation water other words, to (1991); Water Act Section 303 Water Act Section water quality”); Holly Doremus & A. Dan Tarlock, Protection Law? 40672-mqi_22-1 Sheet No. 74 Side B 05/20/2019 14:43:36 B 05/20/2019 74 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 75 Side A 05/20/2019 14:43:36 155 145 OLUNTARY V 9/21/2018 1:52PM can be overcome. . L. 151, 159–61 (2015) 154 XPORTERS AND NVTL : E & E SE U EGULATION and that, third, the theory of the third, the theory and that, R AND 153 151 EYOND , 32 J. L . L.J. 5, 7 (2015) (arguing that “environmental protection ., B The Microbead-Free Waters Act of 2015: Model for Future for Future The Microbead-Free Waters Act of 2015: Model Environmental Resistance: Defying Capitalism’s Structure of Structure Capitalism’s Defying Environmental Resistance: NVTL 768 N.W.2d 552 ¶¶ 14, 18 (describing “reasonable use” doctrine). “reasonable use” 18 14, (describing 768 N.W.2d 552 ¶¶ , Beyond Regulation: Making the Business Case For Sustainable U. E ERR ET AL K ) ATE , at ix (1998) (citing a “growing realization . . . that traditional regulatory G Some optimistic estimates actually suggest that industry ELETE note 151, at xi. D OBERT 156 OT OT 152 R David A. Strifling, Laura A. Cisneros, Laura A. EASURES OLDEN N SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER AND WIS. SEMICOMMONS supra O M Suzy Friedman, (D , 8 G Accord But see See Accord INAL INAL .F (Jan. 7, 2015), http://blogs.edf.org/growingreturns/2015/01/07/beyond-regulation-making- 156. 152. 155. Kerr, 151. 153. Hocking v. Dodgeville 154. Increased private engagementIncreased private in water face substantial quality efforts One Wisconsin, potential path for federal and in the face of retreating M K TRIFLING NVIRONMENTAL C Y 9. S 9. Environmental Legislation, or Black Swan? Farming the-business-case-for-sustainable-farming/ [https://perma.cc/LRZ9-V7GB]. False Rebellion and capitalism are inherently oppositional” and generate “antipathies so fundamental that they make and capitalism are inherently oppositional” and generate “antipathies so fundamental that current environmental protection laws inadequate”). prefers to self-adopt voluntary environmental conservation initiatives to of mandatory forestall environmentaltrigger the onset problems that would hurdles. At a minimum, must private entities of the “business be convinced become involved. case” to of private antipathy assumes historical that This first firms and individuals toward environmental protection state involvement, local is a greater role for private efforts to improve or water waterquality. Indeed, private users should feel a moral obligation to maintain or even improve water of their rights to use water quality in light under Wisconsin’s system of “reasonable use.” This issue is complex. several considerations might Theoretically, convince private firms in to embrace and individuals voluntary participation environmental protection. initiatives executed voluntary designed and Properly and create newcan “cut costs, increase market market share opportunities.” For example, in the context of sustainable agriculture leading to improved water of sustainable agriculture leading the context For example, in improvedquality, the benefits could include profitability due to efficient fertilizer management; increased confidence in grower decision-making as a and managementresult of advanced data collection efforts; marketing increasingly imposeddemands advantages given the sustainability by retailers chain partners and supply among even improved reputation and upon suppliers; with consumers. (suggesting strategies for advocates of future environmental legislation). environmental (suggesting strategies for advocates of future tools alone are not adequate”). tools alone are not semicommons implies with rights and responsibilities public and private both waterrespect to question becomes: quality, then the What be done? New is to environmentalor strengthened seem regulations improbablecurrent in the climate.political face a variety of serious threats; that, second, existing laws and regulations are and regulations laws existing second, that, threats; of serious a variety face these threats; to control not sufficient E 2018] 40672-mqi_22-1 Sheet No. 75 Side A 05/20/2019 14:43:36 A 05/20/2019 75 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 75 Side B 05/20/2019 14:43:36 . M K HE 160 EV T R C Y . 235, INSEY Y K ’ C GMT OL M , M (Feb. 2015) [Vol. 22:1 [Vol. 9/21/2018 1:52PM . L. P (Aug. 31, 2015), (Aug. 31, In any such NIT ATER U Why Public-Private . W NVTL 163 Sampled farmers E GRIC 158 ARY ESEARCH R , 158 A .& M M er systems usually does farm more , 33 W note 136; David Hall, NTERNATIONAL Water Trends in the United States: Privatization I supra Adoption of Voluntary Water-Pollution Reduction Adoption of Voluntary Water-Pollution Reduction Water Privatization: Facts and Figures Facts Water Privatization: and disparaged in others. and disparaged in ERVICES 162 S The Rising Advantage of Public-Private Partnerships 164 159 note 151, at xi. xi. note 151, at Water Quality Advocates Say Voluntary Actions Not Working, Water Quality Advocates Say Voluntary Actions UBLIC ) Depending on the structure, public-private partnerships structure, public-private partnerships Depending on the MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. , P 161 supra ELETE D Food and Water Watch, OT OT , Food & Water Watch, N Kerr, O Craig Anthony (Tony) Arnold, (D 157 . . See, e.g., See Id Id See, e.g. INAL INAL see also .F (Nov. 17, 2016 2:01 PM), http://www.thegazette.com/subject/news/business/agriculture/wa . (July 2017) https://www.mckinsey.com/industries/capital-projects-and-infrastructure/our- 162. Michael Della Rocca, 163. 164. 161. James Q. Lynch, 159. 160. 157. 158. Florence G. Gachango et al., O However, other recent studies have shown that the voluntary adoption rate the voluntary have shown that other recent studies However, Safeguards would be necessary to mitigate involvement the risk of private Assuming cleared, innovative public-private partnership those hurdles are TRIFLING AZETTE 9. S 9. had an unrealistically high perception of existing water perception unrealistically high had an and, quality for noncomplianceopposed penalties strongly unsurprisingly, with environmental regulations. https://www.foodandwaterwatch.org/insight/water-privatization-facts-and-figures https://www.foodandwaterwatch.org/insight/water-privatization-facts-and-figures local water and sew [https://perma.cc/BT7Y-4CTR] (“privatizing harm than good for our communities”). harm than good for our of nutrient reduction technologies to improve reduction technologies of nutrient water low, quality is relatively to do so. are provided substantial incentives even when regulations. Technologies and Water Quality Perception Among Danish Farmers and Water Quality Perception Technologies 235 (2015). Human Rights, National Security, and Public Stewardship ter-quality-advocates-say-voluntary-actions-not-working-20161117 [https://perma.cc/2XKA-CTP7] ter-quality-advocates-say-voluntary-actions-not-working-20161117 regulation” instead of voluntary pollutant reduction (environmental advocates call for “farmland strategies); are hailed in some quarters insights/the-rising-advantage-of-public-private-partnerships [https://perma.cc/W4CF-CTLH].insights/the-rising-advantage-of-public-private-partnerships http://www.world-psi.org/sites/default/files/rapport_eng_56pages_a4_lr.pdf [https://perma.cc/FE8Q- http://www.world-psi.org/sites/default/files/rapport_eng_56pages_a4_lr.pdf F622]. efforts to control nonpoint source pollution could shape up in the following efforts to control nonpoint source ways. & C G Environmental voluntary initiatives for groups often strongly oppose even and environmental mandatory preferring the security of protection, regulations enforcement efforts. 146 with public trust resources. For example,with public trust resources. objections have been raised to strong direct ownershipwater of public entities. utilities by for-profit arrangement, to protect public safety is highly the level of built-in safeguards state. variable from to state 785, 792–93 (2009). 785, 792–93 Partnerships Don’t Work 40672-mqi_22-1 Sheet No. 75 Side B 05/20/2019 14:43:36 B 05/20/2019 75 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 76 Side A 05/20/2019 14:43:36 169 See , 38 147 Green local (July 13, CIENTIFIC 165 , S China now 9/21/2018 1:52PM OURCE Solving the CSO S 170 HE , T (Jan. 15, 2017 11:53 AM) a.cc/VM5L-KAF5]. . Trump Budget Cuts Funds for EPA by 31 , effective November 10, 2015. Translated Id U.S. Environmental Protection Agency, U.S. Environmental Protection 3D258397%26lib%3Dlaw%26EncodingName% Guiding Opinions of the General Office of the State These “sponge cities” are designed to retain These “sponge cities” See generally 168 China’s “Green Leap Forward” Toward Global Environmental China’s “Green Leap Forward” Toward Global (Mar. 16, 2017) https://www.scientificamerican.com/article/trump- Sponge Cities: Can China’s Model Go Global? ) . L. 633, 633–34 (2011) (noting that China’s historical policies have been ELETE (Oct. 20, 2017) https://www.epa.gov/green-infrastructure [https://perma.cc/ (Oct. 20, 2017) https://www.epa.gov/green-infrastructure D NVTL MERICAN . 335, 335 (2014). . 335, 335 and other devices to improveand other water quality. , Evan Lehmann & Emily Holden, OT OT A N GOV EV . SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS 166 O .J.E T Robert V. Percival, PA How Scott Walker Dismantled Wisconsin’s EnvironmentalHow Scott Walker Dismantled Wisconsin’s Legacy (D (June 17, 2015) https://www.scientificamerican.com/article/how-scott-walker- . L. R . L. , E See, e.g. See INAL INAL In 2013, Chinese President Xi Jinping announced a plan to transform President Xi Jinping In 2013, Chinese ,12V CIENTIFIC .F NVTL 167 , S . E 168. Workman, James 167. 170. General Office of the State Council, 169. roofs, retention ponds, and porous Tools for “sponge cities” include bioswales, green 166. “mechanisms that mimic, maintain, or restore Green Infrastructure refers to a variety of 165. In an era of decreasing federal and state involvement, federal and of decreasing In an era This movement can take new inspiration from(perhaps) unlikely source: a This movement can take new inspiration M K TRIFLING MERICAN ARV C Y 9. S 9. versions of the guidance are not freely available, but rough Internet translations show a well-formed versions of the guidance are not freely available, but rough Internet translations show a well-formed out basic policy that both defines sponge city management, establishes the 70% requirement, and sets scientific principles to guide sponge city development. Council on Advancing the Construction of Sponge Cities https://translate.google.com/translate?hl=en&sl=zh- TW&u=http://en.pkulaw.cn/display.aspx%3Fcgid% .cc/6NNQ-KB2S]. pavements, among other things. Working together, these measures, when combined with others, can percent. reduce runoff from sponge cities by eighty-five Chinese cities into “sponges.” Chinese cities into China. This process allows the city to regenerate and expand its own water supply the city to regenerate and expand This process allows while simultaneously on traditional infrastructure, such as reducing the burden wastewater treatment the Chinese2015, facilities. In government released [c]onstruction of [s]ponge [c]ities” the “on [a]dvancing detailed guidance directing that 70% rainfall will of urban and re-used. be captured stormwater purifying it as it moves in a variety of ways, “green through storing it as groundwater soil, and ultimately infrastructure” and for re-use. described as a “War in Against Nature” but that “there are signs of a dramatic improvement environmental consciousness in China in recent years”). environmental consciousness in China in recent Leadership natural hydrological features in the urban landscape.” Caswell F. Holloway et al., natural hydrological features in the urban landscape.” the Conundrum: Infrastructure and Green Unfulfilled Promise of Federal-Municipal Cooperation H 2017), https://www.thesourcemagazine.org/sponge-cities-can-chinas-model-go-global/ [https://perma 2017), https://www.thesourcemagazine.org/sponge-cities-can-chinas-model-go-global/ dismantled-wisconsin-s-environmental-legacy/ [https://perm dismantled-wisconsin-s-environmental-legacy/ budget-cuts-funds-for-epa-by-31-percent/ [https://perma.cc/56VW-J4RQ]; Associated Press, Budget Wisconsin DNR Sees Job Cuts, Slashed [https://perma.cc/3XSH-CK3F]; http://minnesota.cbslocal.com/2017/01/15/wisconsin-dnr-job-cuts/ Siri Carpenter, 1. “Sponge Cities” Infrastructure A 2018] Percent environmentalimportance. on increased efforts take conservation In the pollution, thisof nonpoint source context can take the form of “green infrastructure” N4C9-WVQK]. N4C9-WVQK]. 40672-mqi_22-1 Sheet No. 76 Side A 05/20/2019 14:43:36 A 05/20/2019 76 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 76 Side B 05/20/2019 14:43:36 M K 174 175 179 C Y [Vol. 22:1 ERTIFICATION 9/21/2018 1:52PM C UALITY Q ATER W 176 171 . GRICULTURAL A Improving the Efficiency of Voluntary Water Quality Field verification by program Field verification by staff then . 148, 148 (2016). This is in stark contrast to externalities . 148, 148 (2016). This is in stark contrast to 178 INNESOTA CON ., M E GRIC AND ) note 168. A MARQ. INTELL.PROP. L. REV. REV. L. INTELL.PROP. MARQ. . Recent studies have shown that performance-basedRecent studies have ELETE T OF , 92 L D supra ’ 173 OT OT Id. EP No doubt, however, there is roomNo doubt, however, improvement; as noted for N . D O Farmers decide who to take part in the program must verify 172 (D at 7. INN . . at 155. . 177 Jeff Savage & Marc Ribaudo, See generally id See generally Id. Id Id Id INAL INAL 6 (Jan. 30, 2015). .F 174. 175. 176. 177. Minn. Stat. § 17.9891–17.9993 (2017). 178. M 179. 172. 173. 171. Workman, Some Midwestern states already programs have voluntary for nonpoint Voluntary programsVoluntary address environmental to problems are nothing new. TRIFLING ROGRAM 9. S 9. boasts more than thirty such “sponge cities.” moreboasts “sponge thirty such than Conservation Programs derived from industrial “end-of-pipe” sources, dealt with by regulations issued under the authority of derived from industrial “end-of-pipe” sources, the Clean Water Act. approaches (measuring the ultimate performance of the measure) are more particular technology. that specify adoption of a efficient than approaches above, these measures improve “have largely failed to water quality” in impaired waters. compliance with existing federal and state water quality laws and rules, including the Clean Water Act. source control. Program” allows farmers to voluntarily implement certain Minnesota’s “Agricultural Water Quality conservation Certification a period of ten years, along for certainty” exchange for “regulatory in practices with marketing status advantages and priority for technical and financial assistance. P In Iowa, the state’s “Nutrient Reduction Strategy” aims to reduce by 45% 3Dbig5&prev=search [https://perma.cc/3D77-2MNA] However, performance-based to implement policies “are difficult for nonpoint easily be measured pollutant discharge cannot source pollution because and regulators lack the information set necessary to optimal performance goals.” Program inputs and management therefore often focus instead on leaders approaches. practices, known as design-based 148 2. Initiatives Voluntary Programs and In fact, “[e]nvironmental emanating externalities from agricultural production voluntary United States through with in the been dealt have traditionally approaches.” “establishes that the practices and commitments of certified “establishes that the practices and commitments producers are accurate and that there are no additional resource concerns to be addressed.” 40672-mqi_22-1 Sheet No. 76 Side B 05/20/2019 14:43:36 B 05/20/2019 76 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 77 Side A 05/20/2019 14:43:36 185 149 The (Feb. 183 UTRIENTS EDUCTION N R 184 9/21/2018 1:52PM The Strategy The EDUCE R 180 UTRIENT N OWA ticle/Northey-Voluntary-water- ., I SSESS AND ZEH] (quoting Iowa Agriculture A Specifically, the Strategy involves the Strategy Specifically, RAMEWORK TO F 181 TEWARDSHIP ET AL S 1 (Sept. 2016). ASED ONCLUSION AND -B L As part of the strategy, Iowa launched the Iowa launched the of the strategy, As part C EXICO 182 M AND . https://www.iowafarmbureau.com/Ar GRIC ) ULF OF ECHNOLOGY A G T Northey: Voluntary Water Quality Effort Far Superior to Regulation Far Water Quality Effort Northey: Voluntary ELETE UREAU T OF D ’ B OT OT EP N D SEMICOMMONS AND WIS. WATER QUALITY QUALITY WATER WIS. AND SEMICOMMONS O ARM (D at 21. at 22. at 24. at 2. F CIENCE AND OWA Id. Id. Id. Id. INAL INAL ATERS AND THE :A S .F OWA W 182. 183. 184. 185. Dirck Steimel, 181. 180. I Other proposals for more indirect private involvement could include Advocates describe these voluntary measuresAdvocates describe as flexible and effective, As it moves forward in the twenty-first century, Wisconsin faces many OWA M K TRIFLING I TRATEGY C Y 9. S 9. down by lengthy legal challenges. challenges. down by lengthy legal increased support for grant programs or public educational campaigns. threats to a resource at the core of its identity—itsthreats to a resource at the core of abundant fresh water. One thing is clear, traditional “command and control” regulatory approaches, Instead, overcomingstanding alone, are not likely to suffice. these challenges will require innovative approaches that are just beginning to emerge. Moreover, they can often be implemented quickly as compared to traditional and are often bogged often take years to draft and implement regulations, which especially as compared to the “blunt instrument[s]” embodied in mandatory “lock[ed] . . . regulations that are in time” . . . creativity.” and “stifle quality-effort-far-superior-to-regulation [https://perma.cc/BDW2-W Northey). Secretary Bill Farmer Recognition Program recognition of participating public to increase farmers,and marketingalong with a statewide education campaign. the load of phosphorus and nitrogen to the Gulf of Mexico. the Gulf to and nitrogen of phosphorus the load Strategy is somewhat light on details of progress-measuringStrategy is somewhat metrics, light on details of stating only that Iowa will “develop new and expanded frameworks to track progress, ambientbeyond the traditional water monitoring quality networks.” S 2018] calls for “[a] concerted, cooperative and sustained effort by both point and effort by and sustained “[a] concerted, cooperative calls for sources” to meetnonpoint this goal. watershed and will prioritization a combination employ off-field of on- and and pilot projects. practices TO 2, 2015) I 40672-mqi_22-1 Sheet No. 77 Side A 05/20/2019 14:43:36 A 05/20/2019 77 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 77 Side B 05/20/2019 14:43:36 M K C Y 40672-mqi_22-1 Sheet No. 77 Side B 05/20/2019 14:43:36 B 05/20/2019 77 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 78 Side A 05/20/2019 14:43:36 163 151 158 , CNBC 11/5/2018 12:08PM ? ...... 153 (June 12, 2014), 253(b) ...... 153 ESLA , T EMEDY ...... R of Section Yet again, Musk astounded the public by 1 NTRODUCTION I NTITRUST A ) Tesla Shares Drop After Posting Wider-Than-Expected Loss ELETE D All Our Patent Are Belong to You OT OT HIELD OR ...... N S O (D Robert Ferris, THE MYSTERY OF SECTION 253(b) OF SECTION 253(b) THE MYSTERY INAL INAL INNOVATION IN WISCONSIN: OPEN WISCONSIN: IN INNOVATION See .F Tesla giving up its patents does not appear to be a reasonable business Tesla giving up its patents does not SOURCING INNOVATION COMMENTS COMMENTS INNOVATION SOURCING B. Antitrust...... 155 A. and History The Language 2 ONCLUSION ...... NTITRUST 2. 1. Elon Musk, HAT DOES IT MEAN TO DEDICATE TO THE PUBLIC HAT DOES IT MEAN In 2014, Elon Musk, the renowned and socially-minded CEO of Tesla AGNIER M K C Y NTRODUCTION 10. G 10. II. A (Nov. 1, 2017), https://www.cnbc.com/2017/11/01/tesla-q3-2017-earnings.html [https://perma.cc /LY4R-UCJP]. https://www.tesla.com/blog/all-our-patent-are-belong-you [https://perma.cc/37ZV-C348]. decision, unless there was an ulterior motive for doing so; say, it would be motivedecision, unless there was an ulterior be it would for doing so; say, else. itself fromreasonable if Tesla did so to protect something I choosing the betterment over corporate profits—stirring of society up a more there are numerous corporate personality. But positive image than any other Wherecan you access the have drownedMusk’s out: positive PR questions that get past the other executive officers patents?; How did freeing up the patents The first place? the the patents in even free up and Whyand the shareholders?; last question has the easiest answer on its face: for the betterment of mankind. to have swayed an entire board of However, such an answer is doubtful and Tesla is not well known for turning a directors as well as any shareholder, profit. I. W III. C Motors, blog on Tesla’s website that stated the company Inc., posted a would in the creation of the company’sbe freeing up many patents involved of its electric cars to any interested party. 40672-mqi_22-1 Sheet No. 78 Side A 05/20/2019 14:43:36 A 05/20/2019 78 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 78 Side B 05/20/2019 14:43:36 M K C Y but one Instead, 3 6 [Vol. 22:1 [Vol. 11/5/2018 12:08PM Doing so grants protections Doing so grants protections 5 Located within the current section 253(b), section 253(b), within the current Located 4 ) MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. ELETE D OT OT N O (D INAL INAL .F See id. 3.patents except those from economically means of For example, has no benefiting Tesla now 4. 35 U.S.C. § 253(b) (2012). 5. 6. that clearly outline this point. Much In my research, there were no cases found of my This comment will these topics, beginning with discuss an examination of Indeed, by freeing up its patents, Tesla is able to avoid liability for possible possible for avoid liability to is able Tesla up its patents, freeing by Indeed, Again, there are the problems with gaining the votes of the board of gaining the votes of the the problemsAgain, there are with AGNIER 10. G 10. the language an examination its changes through of the subsection as well as of legislative history. Part I will also include the historical relevance of the the section’s birth. Next,antitrust discussion going on during Part II will discuss how section 253(b) is used as an antitrust shield and whether it should shift to become instead. In that vein, Part II remedy an antitrust for plaintiffs monopolies patent will also discuss the current state of and the context of shift. contemporary society in determining the necessities of a legal avenue to this current situation, known as a “dedicat[ion] to the public,” is a “dedicat[ion] to known as this current situation, avenue to Act. the Patent found within dedications to the public allow a patent-holder to relinquish their rights in a to relinquish their a patent-holder to the public allow dedications avoid any to utilize said patent and to allowpatent in order to any third-party frompotential liability the same. having rights in legislative intent is the lens through which we can determinelegislative intent is the lens through the true purpose the public at its inception. Additionally,of section 253(b) and dedication to manywith the incredible expansion of embrace companies of vertical and integration tactics, a discussion of the shift from section 253(b)’s shift from is a plaintiff being of for the benefit an to an antitrust weapon antitrust shield the public should becometo show how dedication to more relevant relevant moving forward. antitrust accusations downantitrust line. How the it manages is not entirely to do this mayclear and causing Tesla more end up the road, headaches down 152 by indirect methods, such as other necessary, related patents. by indirect methods, such as other necessary, related that were research had to be extrapolated from relevant legislative comments and other discussions inception. occurring historically at the time of the language’s first to both patentees and patent-holders and may be considered to expand the prior the expand to be considered and may patent-holders and patentees to both art for the betterment point of view. Regardless, of all, dependent on your Tesla may to give up its have taken possible avenue that section 253(b) is one benevolence. guise of patents under the shareholders happy. In comesdirectors and keeping section 253(b), which, instead of being used simply out prosecution. Howbe used as a defense against antitrust a dedication to the of the goodness of a patent-holder’s adjudication is not immediatelypublic can be used to prevent antitrust clear heart, may from statute, and unfortunately, there is no case law that the language of the outlines how section 253(b) can be used to protect a patent-holder. 40672-mqi_22-1 Sheet No. 78 Side B 05/20/2019 14:43:36 B 05/20/2019 78 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 79 Side A 05/20/2019 14:43:36 12 153 What What 14 7 11/5/2018 12:08PM ? Because of this scarcity, Because of this scarcity, Again, “[i]n like manner” Again, “[i]n 8 10 include the dedication to the public Specifically, in 1951 House Bill 3760, 9 did not House Bill 9133 does include section 203, but 13 ) From this point the language would remainforward, From MYSTERY 253(b) SECTION OF 11 ELETE D 35 U.S.C. § 253(b). OT OT HAT DOES IT MEAN TO DEDICATE TO THE PUBLIC TO THE DEDICATE TO DOES IT MEAN HAT N A.253(b) History of Section The Language and O (D I. W see also . . .; United States Patent Act of 1952, Pub. L. No. 82-593 § 253, 66 Stat. 792, 809 (codified 66 Stat. 253, Pub. L. No. 82-593 § States Patent Act of 1952, .; United .; INAL INAL Id Id Id Id .F 11. 12. 13.(1950). United States Patent Act, H.R. 9133, 81st Cong. § 203 14. 8. 35 U.S.C. § 253(b) on Westlaw, Search for then check the citing references tab and refine 9.(1951). United States Patent Act, H.R. 3760, 82d Cong. § 203 10. 7.§ 253(b). 35 U.S.C. related to the doctrine of terminal is exclusively (a) subsection Note that The current language of section 253(b) reads as follows: 253(b) reads language of section The current In the manner in set forth subsection or (a), any patentee applicant may disclaim term, dedicate to the public the entire or or any granted. terminal part of the term,patent granted or to be of the The dedication to the public language first originated in the Housein the Bills language to first originated the public dedication The The key language here is the portion related to dedication to the public. here is the portion related to dedication The key language AGNIER M K C Y 10. G 10. as amended at 35 U.S.C. § 253 (1952)). as amended at 35 U.S.C. § 253 disclaimers and is not relevant to this discussion. disclaimers and is not relevant to this “dedicate.” the search for “dedication” or section 203, relegated the language to a second paragraph (instead to a second paragraph (instead section 203, relegated the language of a that stated as follows: “In like or applicant patentee mannersubsection) any may disclaim or dedicate to the term,public the entire or any terminal part of to be granted.” or the term, of the patent granted caused the change is outlined in the Report from the Committee on the Judiciary Judiciary the the Committeefrom on the Report outlined in change is the caused House of Representatives that accompanied House Bill 7794, which stated the Unfortunately, case law on this subject is very scarce and provides little scarce and provides little Unfortunately,this subject is very law case on what this language means.assistance in defining defining section 253(b) requires an examinationdefining section 253(b) of the legislative history of politicians. fewthe statute and the discussions left behind by working up to the Patent Act of 1952. However, prior to the language’s initial inclusion in House Bill 3760, there in inclusion However,the language’s initial prior to was one prior House Bill that 2018] unchanged—thestatute shifting from only alterations being the section 203 to creation and into the statute’s life. section 253 over the course of the statute’s the second paragraph that included the relevant language was the relevant language was the second paragraph that included absent. references the paragraph above, which is related to the irrelevant terminal isreferences the paragraph above, which to related disclaimer language. language—House Bill 9133. 40672-mqi_22-1 Sheet No. 79 Side A 05/20/2019 14:43:36 A 05/20/2019 79 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 79 Side B 05/20/2019 14:43:36 M K C Y Since its ROCEDURE P [Vol. 22:1 18 11/5/2018 12:08PM XAMINING E 15 ATENT P , 35 U.S.C.A. 1, 49 (1954). , 35 U.S.C.A. 1, 49 ANUAL OF [https://perma.cc/2JLM-QGT4]. , M 16 FFICE O RADEMARK ) & T MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. Commentary on the New Patent Act ELETE . 82–1923, at 8 (1952). D O ATENT OT OT . N N O EP (D U.S. P Therefore, the intent of including the language for dedication to the the language Therefore, the intent of including INAL INAL With case law being so scarce, the average scholar would assume the See 17 .F 19 No specific reason for this provision appears in the printed record, appears for this provision No specific reason but its proponents contemplated that it might be effective in some instances, in a defense of double patenting, to permit the combatting patentee to cut back the of term a later issued patent so as to expire at the same time as the earlier issued patent and thus eliminate any monopoly. charge of extension of 17. 16. P.J. Federico, 15. H.R. R 18.(2011). Act, Pub. L. No. 112-29 Leahy-Smith America Invents § 253, 125 Stat. 284 19. Search 253 on Westlaw citation references for “253(b)” and only one case will appear. There is now a provision in the statute under which an invalid claim which an invalid in the statute under now a provision There is the save in order to unreasonable delay disclaimed without must be patent. rest of the [I]f one claim the patentee a patent is invalid, of may it out. He may take on the remaining sue claimswhich have whatever validity they may own merits. have on their Extending the monopoly would mean that, if an earlier patent existed as a It appears the drafters desired to leave an option for patent-holders to drop desired to leave an option for patent-holders It appears the drafters The language of the second paragraph of section 253 survived into the The language of the second paragraph AGNIER 10. G 10. public would assumedly be to prevent unrestricted patent continuations that patent continuations unrestricted public would assumedly be to prevent would allow for an unlimited patent period. part of a newer patent—thus continuing the limited monopoly right—the patent-holder would hold monopoly rights over the older patent past the expiration date. This problem as double patenting and would be an is known mean the newer patent would essentially issue in these scenarios, as it would any lesser parts that had been previously cover both the greater invention and patented. § 804 (2018), https://www.uspto.gov/web/offices/pac/mpep/s804.html This case is not about dedication to the public but instead concerns terminal disclaimers. This case is not about dedication to the public but instead concerns terminal following: passage to its current state in section 253(b), dedication to the public has not in section passage to its current state or further defined by many,been challenged in the judicial system if any, judges. a portion of their patent in haste should the holder expect a challenge to a patent in haste should the holder a portion of their an easy can be costly, and to have validity. Litigation portion of the patent’s challenge could feasibly promoteout to avoid a court greater interest in gave the following commentarypatenting. P.J. Frederico on why this section was added: 154 current Leahy-Smith America Invents Act (“AIA”), passed in 2011. current Leahy-Smith America Invents 40672-mqi_22-1 Sheet No. 79 Side B 05/20/2019 14:43:36 B 05/20/2019 79 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 80 Side A 05/20/2019 14:43:36 20 155 ,§ 1:6 IALOGUE :A D (June 6, 2017), 11/5/2018 12:08PM OMPETITION RIAL C T These new policies NFAIR RITANNICA (Oct. 22, 2015), Essentially, Chicago Essentially, Chicago B U According to Chicago 21 22 24 CONOMICS ON E CONOMIST E NCYCLOPEDIA HE , E , T RADEMARKS AND NTITRUST T , A If a single firm dominates a market, the 26 ROCK B. Antitrust ARTHY ON C W. B W. C , M Going Off the Rails AMES Chicago School economists can also make these ) 23 & J 4 (1991). MYSTERY 253(b) SECTION OF 25 ARTHY C ELETE C Chicago School of Economics D AIRE DAMS M -F OT OT A N O . Lanny Ebenstein, (D HOMAS AISSEZ ALTER . at 5. . at 25. . at L See INAL INAL See id Id Id .F EW N 21. 24. W 26. 23. 20. David Hess, 22. T J. 25. Founded in the 1930s, the Chicago School of EconomicsFounded in the 1930s, quickly rose to One method of making free market determinations solve societal to AGNIER M K C Y 10. G 10. https://www.britannica.com/topic/Chicago-school-of-economics [https://perma.cc/Z992-F9Z9]. (4th ed. 1996). (4th ed. ON THE market can still be efficient as the firm will need to maintain competitive to maintain monopoly—thus, their in order remains the monopoly the pricing Economists argue in favor of a free marketin order to find solutions to society’s problems government and stand against intervention at all times, except in extreme circumstances. that section 253(b) is unused or nonthreatening to any party involved in a involved party to any or nonthreatening unused is section 253(b) that but that simply scenario, double-patenting seemsgiven how unrealistic, the Americanconfrontational legal system Much is designed. more likely, challenges by arise to avoid a tool before issues is used as section 253(b) as willlicensees. Indeed, possible be discussed below, the history surrounding of the Patent Actthe passage of 1952 will how illustrate be the case. this can problems is termed theory,” which “is the science explaining rational “price economic of markets.” behavior and the operation Though initially proponents of more liberal economic ideas from the era of the the era of of more liberal economic proponents ideas from Though initially Chicago School thinkersGreat Depression, began movingmore toward of laissez-faire marketlibertarian policies solutions. 2018] prominence in economic producing numerouscircles by Nobel Prize winners. School economists, price theory can be used to make determination the rational used can be economists, price theory School crime,given situation, including in a cost-benefit analysis of any divorce, having children, etc. https://www.economist.com/news/books-and-arts/21676745-how-libertarians-hijacked-liberal- economics-going-rails [https://perma.cc/6UXX-B5QR]. reject “non-economic social goals and posit[] economic analysis as the major for governmentor sole criterion intervention.” analyses with antitrust considerations; they argue that monopolies can be a maximization of consumer welfare. 40672-mqi_22-1 Sheet No. 80 Side A 05/20/2019 14:43:36 A 05/20/2019 80 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 80 Side B 05/20/2019 14:43:36 30 M K one C Y 34 [Vol. 22:1 [Vol. was abrogated 11/5/2018 12:08PM The . 2197, 2200 (2016). 35 . EV (May 14, 2017), Morton Salt ://perma.cc/5WDD-J885]. L. R ARY RUNCH C .& M M ECH 29 , T (Oct. 2015), https://www.uspto.gov/patents- https://www.uspto.gov/patents- (Oct. 2015), ,57W What Are Patents, Trademarks, Servicemarks, What Are Patents, Trademarks, — Any intervention from the government fromintervention Any the FFICE Scope O 27 The Expansion of Overlapping Intellectual Property The Expansion of Overlapping Intellectual but there are broader legal ramifications of 33 RADEMARK T Morton Salt Co. v. G.S. Suppiger Co ) MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. Why Amazon is Eating the World ELETE D (Mar. 22, 2012), http://www.ipwatchdog.com/2011/02/22/the-expansion-of- ATENT AND OT OT N O . at 19–20. 19–20. . at . at 22–23. . at Only in the advent of collusion monopolies that monopolies advent of collusion Only in the efficiency restrict U.S. P Andrew Beckerman-Rodau, (D The reason for such an expansion is obvious: a right holder would right holder would obvious: a The reason for such an expansion is 28 . . ATCHDOG 32 INAL INAL See Id Id See id See id General Information Patents Concerning What as a right to protect commercial originally began from products .F IPW 31 32. 29. 30. 33. Mark A. Lemley & Mark P. McKenna, 31. 35.491 (1942). G.S. 314 U.S. 488, Co v. Co., Salt Suppiger Morton 27. 28. 34. Zack Kanter, Unfortunately for the free marketUnfortunately for idealist, the government is involved in the Patent extension and double-patenting fall generally under the doctrine of Patent extension and double-patenting AGNIER 10. G 10. Rights, https://techcrunch.com/2017/05/14/why-amazon-is-eating-the-world/ [https https://techcrunch.com/2017/05/14/why-amazon-is-eating-the-world/ overlapping-intellectual-property-rights/id=15369/ [https://perma.cc/8WL2-FAHW]. getting-started/general-information-concerning-patents#heading-2 [https://perma.cc/LA97-LTP5]. getting-started/general-information-concerning-patents#heading-2 the slow creep of rights expansion. Of against course, there are protections Of the slow creep of rights expansion. patent extension, but withgross abuse of a right via laws against the growth of companies like Amazon becomes where vertical integration the norm, most form efficient consumer. for the marketplaceform various forms, in patents. Patents are limited being one such monopolies right to the creation, sale, or that grant the owner an exclusive patent, given by the Unitedlicensure of their States Patent Office (USPTO). parent company of subsidiaries, which hold thousands can hold hundreds more patents. At some point, courts must be wary of the sheer size of these companies when examiningrights. cases involving their patent patent misuse. The United States Supreme the doctrine of Court established patent misuse in the case This right is essentially a limitedThis right is essentially monopolythe over the invention, granting other forms exclude others as they could under holder the right to of property rights. 156 prefer his right to be construed as broadly as possible in order to maintain broadly prefer his right to be construed as their monopolistic dominance, thieving competitors now has into an all-consuming evolved hands right in the to control whoof certain parties and where by restricting can create what licensing. and Copyrights? should governments get involved with antitrust. should governmentswith get involved would merely harmthe markets, of the threat intervention creates as the of political-economic marketsfree that hampers collusion through a restriction consumer in the market ruining efficiency choice and thereby for said consumers. 40672-mqi_22-1 Sheet No. 80 Side B 05/20/2019 14:43:36 B 05/20/2019 80 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 81 Side A 05/20/2019 14:43:36 157 Morton 38 11/5/2018 12:08PM Unlike United States v. 42 The petitioner, a competitor,The petitioner, allegedly but the Court determined the following: determinedbut the Court the 36 37 If, instead, the respondent had not forced licensees to If, instead, the respondent had not forced In this case, the respondent attempted to extend its ) 39 MYSTERY 253(b) SECTION OF 41 40 . ELETE D OT OT N O (D United States v. General Electric Co., 115 F. Supp. 835 (D.N.J. 1953). INAL INAL . at 490. . at 844. . . at 493. 490. . at . at 494. .F Id Id Id Id Id Id See 36. 42. 37. 38. 39. 40. 41. , the respondent here was not attempting to unlawfully extend its to unlawfully here was not attemptingpatents , the respondent Where the patent is used as a means of restraining competition witha means the restraining of Whereis used as the patent prosecution of an unpatented product, the successful patentee’s sale of an infringement suit even against one who is not a competitor in such sale is a powerful aid to maintenancethe of the attempted monopoly of thwarting the contributing factor in and is thus a the unpatented article Maintenance the grant of the patent. public policy underlying and enlargementthe attempted of monopoly unpatented article are of the dependent to some the validity of upon persuading the public of extent establish. the patent, which the infringement to suit is intended Another case that established patent misuse principles was misuseAnother case that established patent principles To use the patent to cover somethingTo use the patent contract that binds unpatented by a AGNIER M K C Y 10. G 10. respondent in this case owned a machine owned a this case in respondent salt type of a specific which required contract machinethe to of licensees any required the company and to use, tablet to those specific tablets. only purchase General Electric Co patents over lamp parts to lamp-making control the industry. the patented and unpatented materials together would prevent any opportunities licensees to forcing by infringement, as the respondent did here, of prosecuting contract for the salt tablets as well as the machineand inserting clauses limiting by the Supreme Court in Illinois Tool Works, Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006), but this does not detract point as my MortonSalt the case double patenting as wherein is still doctrine was established. 2018] Salt infringed on the respondent’s patent, on the respondent’s infringed contract for the tablet, but attemptedits remain to competitive by keeping likely could have movedtablet prices the lowest, forward against then this suit respondent, that hypothetical situation did the infringer. Unfortunately for the that the respondent had unlawfully not occur, and thus the Court found extended their patent. the licensor’s liability. but instead possessed “an arsenal of a huge body of patents that [could] that easily of patents body a huge instead possessed “an arsenal of but overwhelm and defeat competition by small firmsstay in desiring to or 40672-mqi_22-1 Sheet No. 81 Side A 05/20/2019 14:43:36 A 05/20/2019 81 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 81 Side B 05/20/2019 14:43:36 Y ’ M K OL C Y .P UB [Vol. 22:1 [Vol. 11/5/2018 12:08PM J.L. & P , the defendant—a ORNELL However, the Supreme However, EMEDY ,7C R 48 , the District Court found , the District Court NTITRUST The Court could not decide whether The Court could not decide whether Hartford-Empire A 49 In 46 The Court was thus forced to impose to thus forced Court was The an An example of the judicial branch’s 43 52 HIELD OR S Compulsory Royalty-Free Licensing as an Antitrust Remedy for ) Such a conclusion was unavoidable because of the because was unavoidable Such a conclusion MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. 44 By controlling the vast majorityBy controlling the of the market of gob- NTITRUST ELETE D Therefore, the remedy reasonable royalties limited had to be 47 OT OT 50 N II. A O Hartford-Empire Co. v. United States Hartford-Empire . at 415. (D Lawrence Schlam, Hartford-Empire Co. v. United States, 323 U.S. 386, 393–94Hartford-Empire Co. v. United States, 323 U.S. (1945). United States v. Hartford-Empire Co., 46 F. Supp. 541, 593–94 (D. Ohio 1942). 1942). 541, 593–94 (D. Ohio United States v. Hartford-Empire Co., 46 F. Supp. 51 . at 420. . at 394. 416–17. . at . at 844. . . at 843. INAL INAL See See id Id Id Id See Though not explicitly stated to comenot explicitly stated Though from in the section 253(b) Id Id Id .F See 45 50. 51. 52. 45. 47. 43. 44. 48. 49. 46. Though only one case above directly used dedication as a remedy,Though only one case above directly each is Lastly, in AGNIER 10. G 10. relevant in the discussion of how dedication has been used and how it can be relevant in the discussion of how dedication used movingbeen extremely forward. Courts have hesitant to use dedication due to the confiscatory the cases above, as an antitrust remedy, by as evidenced nature of dedication as a remedy. 467, 509 (1998). 467, 509 Patent Fraud: Law, Policy and the Patent-Antitrust Interface Revisited extreme remedy the market, to protect to dedicate required the respondent and some of its patents. to destroy a patent right on its own, as it would hamper to destroy a patent right on its own, the entire patent system in place. exclusively to certain patents and not the destruction of the patent right exclusively to certain patents and altogether. gain a foothold in the industry.” in the a foothold gain that some firms must be allowedcontrol if it is the firm’s to continue licensure only means income. of generating feeders, the defendant created a substantial entry barrier for any party that could party barrier for any entry the defendant created a substantial feeders, stifled competition.fees and thus licensing its not pay 158 as a meansthe Court used dedication opinion, competition to protect a in monopolized market where no other solution was viable. respondent’s overwhelmingrespondent’s market quashed competition presence smaller by firms. Court did not force dedication upon the petitioner because Congress never Court did not force dedication upon built patent cancellation into the lawa method as of combating antitrust— despite numerous do so. opportunities to company glass-making that produced machinery—had restricted competition in the market of the greater glass-making over a specific piece tool known as the “gob feeder.” 40672-mqi_22-1 Sheet No. 81 Side B 05/20/2019 14:43:36 B 05/20/2019 81 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 82 Side A 05/20/2019 14:43:36 . 55 159 . L.J. T ROBS S . P HIO 11/5/2018 12:08PM ONTEMP , 76 O & C Especially in the With the rampant AW 57 56 , 50 L Courts, in general, seek to general, seek to Courts, in 53 , wherein the Court did not wish to not wish Court did the , wherein Antitrust and the Patent System: A Reexamination Hartford-Empire , 323 U.S. at 393–94. , 323 U.S. at ) MYSTERY 253(b) SECTION OF note 16. Antitrust, Law & Economics, & the Courts ELETE D supra OT OT N Any one of these large tech companies can be protected by large can be protected by one of these large tech companies Any O (D 58 Senator Elizabeth Warren,Economy, in the American Reigniting Competition Keynote . In the converse, dedication could exist as an antitrust shield that an antitrust shield could exist as dedication In the converse, INAL INAL Id Hartford-Empire Co. See .F 54 58. 56. Herbert Hovenkamp, 55. Frederico, 53. 54. Louis Kaplow, 57. Dedication became as an antitrust shield even more relevant as time went Indeed, the likelihood of Tesla doing this is high, especially as the companyIndeed, the likelihood of Tesla doing The basis for such an argument is within the history of section 253(b) itself, AGNIER M K C Y 10. G 10. Remarks at America’s Open Market Programs Event, 2 (June 29, 2016). Remarks at America’s Open Market Programs Event, 2 (June 29, on, particularly beginning in the 1970s when patent law began to slowly expand began to slowly law patent in the 1970s when beginning on, particularly past what antitrust laws were meant to protect against. technology sector, larger companies hold incredible power over the smaller ones—with important and hardware being locked behind expensive software used to direct traffic awaypatents or the patent itself being from smaller competitors. growth of economic power in the hands of a few, large companies, fewer large companies, fewer growth of economic a few, power in the hands of holdings of these companiesoutsiders are able to challenge the and prevent horizontal levels. integration on both the vertical and 467, 473–74 (2015). 467, 473–74 legal teams antitrust threats within identifying possible its extensive chains of any numberpatents and then choosing to dedicate of lesser patents in order to avoid expensive legal battles. hesitancy can be seen in be seen can hesitancy Under such a paradigm, dedication would be used exclusively by the patent- Under such a paradigm, by the patent- dedication would be used exclusively a patent. Section the dangers of unlawfully extending holder to defend against the remainder of a new patent, to dedicate a patent-holder 253(b) would allow one. By so doing, not only is the newer an older patent to rather than attaching any liability. is able to avoid avoided, but the patent-holder double-patenting to use dedication to the public as an Therefore, Congress’ intent was clearly patent-holders. antitrust shield on behalf of 2018] 181, 181 (1987). (1987). 181, 181 protects large entities fromprotects large entities possible patent misuse allegations by allowing them to free up a minor part of a patentto uphold the greater patent. in order fromas a protection of dedication with the discussion double-patenting. apply Chicago School of Economics School of apply Chicago when determining principles issues possibility has the of a patent patents, as removingsurrounding the protection of harming the free market by damaginga major that specific player within market. apply dedication as it would harm as it would apply dedication the market. 40672-mqi_22-1 Sheet No. 82 Side A 05/20/2019 14:43:36 A 05/20/2019 82 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 82 Side B 05/20/2019 14:43:36 M K C Y NSIDER At the the At I 63 , 65 [Vol. 22:1 [Vol. 11/5/2018 12:08PM USINESS , B more forms advanced of The idea that corporate The idea 59 The Crisis in Antitrust 61 [https://perma.cc/LJ96-GW3R] (last Indeed, once the patent exists in 65 Such policies give firmsSuch policies give the ability 62 (Oct. 12, 2017), https://www.tesla.com/support/solar/solar- (Oct. 12, 2017), https://www.tesla.com/support/solar/solar- Arguably, the market can be controlled by a handful ESLA note 57, at 480–81. note 57, at 66 , T ) Here’s Everything Tesla is Working on Right Now Here’s Everything Tesla is Working on Right MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. , https://www.tesla.com/model3 , Electronic Frontier Foundation (May 1, 2017, 1:09 PM), Robert H. Bork & Ward Robert H. Bork S. Bowman, Jr., & ELETE supra D ESLA OT OT , T N and other interrelated technology. and other . at 366–67. O (D . 363 (1965). . 363 60 Allowing for these practices gives incentive to “patent troll” firms, troll” to “patent incentive these practices gives for Allowing . at 368. Patent Trolls EV 64 See id Id Model 3 INAL INAL Solar Panels FAQs See generally See .F . L. R 65. 66. Hovenkamp, 62. 64. 63. 60. 59. 61. Danielle Muoio, Allowing dedication to exist as a shield, as well as current well as current Allowing to exist as a shield, as dedication jurisprudence AGNIER OLUM 10. G 10. https://www.eff.org/issues/resources-patent-troll-victims [https://perma.cc/TYB2-NHAP]. (Sept. 9, 2017, 9:37 AM), http://www.businessinsider.com/tesla-projects-long-term-plans-2017- (Sept. 9, 2017, 9:37 AM), http://www.businessinsider.com/tesla-projects-long-term-plans-2017- [https://perma.cc/F74Z-VDXG]. 9/#tesla-may-also-add-a-dashcam-to-its-future-vehicles-12 which can obtain wide swaths of patents exclusively for the use of harming for exclusively of patents which can obtain wide swaths competitors in the market. or other players to create a network of patent rights that do not explicitly require an unpatented unpatented an to create a network rights that do not explicitly require of patent another party—afromproduct said unpatented product but can require party that may be engaging in price fixing with the original patent holder. the market, for where there is little to no oversight these rights end up and who is controlling them. same time, the idea of incipiency comesa companyis when into play, which sameincipiency time, the idea of reached them, but has not yet proportions begins to approach antitrust-level in courts thus safeguarding thembeing considered to the companiesdue “more efficient.” begins to expand its market to expand begins panels, into solar reach electric car, panels-faqs [https://perma.cc/H3ES-SHCD]. 160 C shareholders or board membersshareholders be okay with simply would of freeing up all monetary without any Tesla’s patents company Instead, the is laughable. gain liability whento avoid potential so in order is likely doing it begins to license patents that mayout other parts from possess the freed patents—thereby In so doing, Tesla is able to of patent extension. avoiding any allegations simultaneously moot render the issue of patent extension as well as drum up a positive public image. that regard to antitrust with over patent misuse, is indicative of greater policy harms competition than fosters it. rather visited Feb. 1, 2018). of patent troll firms with selectively owned patents that charge prices that block charge prices owned patents that of patent troll firms with selectively smaller competitors or keep control in the hands of larger parent corporations. firm’s control can be troll to a threat Once that control is established, any control. protecting handled by picking some patents to dedicate, thereby lesser Amongst consensus a relative is those within innovative communities,there 40672-mqi_22-1 Sheet No. 82 Side B 05/20/2019 14:43:36 B 05/20/2019 82 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 83 Side A 05/20/2019 14:43:36 71 70 161 11/5/2018 12:08PM Unfortunately companies, for these 68 Part of the problem is that these trolls are bringing trolls are these is that the problem of Part 67 ) MYSTERY 253(b) SECTION OF ELETE D OT OT N O (D Such activities are a clear abuse of the patent system;Such activities are they extend . . at 558–59. . at 560. . . at 558. 69 INAL INAL Id Id Id Id Id .F 69. 70. 71. 68. 67. Instead of allowing dedication to the public to exist as an antitrust shield, to exist as an antitrust Instead of allowingpublic dedication to the AGNIER M K C Y 10. G 10. infringement patents, as many possibly obvious suits over are of the suits inventor. against the actual brought that patent trolls (entities that accumulate (entities patent trolls that to make in order patents money off 60% of approximately filing by innovation hamperingexclusively) are of them all infringement litigation. However, that does not mean patent trolls cannot be used to control the market. the control used to be cannot However, that does not mean trolls patent if a larger parent owns the corporate veil Courts should be allowed to pierce the troll is hamperingthe troll or if there is evidence that the market then the these unlawful allocations of control. court should be allowed to punish methodDedication is the most for this because if dedication readily available is allowed as a remedy then these firms will break themselves up as they can no longer control markets. The existence of trolls alone shows a failure of the market a failure of the patent system, and for therefore indicating a need dedication to the public to mesh with antitrust law to promote competition. there already exists a possible solution in section 253(b). Dedication to the to in section 253(b). Dedication a possible solution there already exists circumvent the barriers to public can be an effective doctrine to antitrust law, troll patent a Act. In effect, when Patent as section 253(b) exists directly in the obvious for a possibly firm technology against a suit patent, brings a the technology company could attempt to counterclaim that the lawsuit is frivolous and aim the patent is provably If a remedy for of dedication. not retain those rights. Even in situations obvious, then the patent troll should ifwhere obviousness is not totally provable, the firm be shown to exist as can a patent troll, then a similar solution should be applied. Antitrust has trolls due to their nature as non-producers, to patent applied difficulties of being meaning and do not create anything themselves. they only aggregate rights 2018] patent infringement thus, no strict liability, and is matter the extent to which the company the company uses the allegedly infringed patent, actually generally must pay. the patent right beyond a right to exclude by allowing troll firms to completely troll firms a right to exclude by allowing the patent right beyond to that maycontrol even patents be considered obvious—thus eliminating any defense from companies. an antitrust remedy. to dedication as courts should look Though there are numerous to overcome barriers antitrust law to apply situations, to these 40672-mqi_22-1 Sheet No. 83 Side A 05/20/2019 14:43:36 A 05/20/2019 83 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 83 Side B 05/20/2019 14:43:36 M K C Y see also and can 73 [Vol. 22:1 [Vol. 11/5/2018 12:08PM From actions 77 78 L.J. 710, 754 (2017); ALE , 126 Y , 203 F.3d 1322, 1324 (Fed. Cir. 2000). , 203 F.3d 1322, 1324 (Fed. Cir. note 24. Such cases are difficult to decide, as the 80 supra Such aggressive expansions equate to expansions Such aggressive 72 For example, when Amazonreleased its Kindle e- Amazon’s Antitrust Paradox note 58, at 4. note 58, at ) MARQ. INTELL. PROP. L. REV. REV. L. PROP. INTELL. MARQ. Adams & Brock, 76 ELETE note 73, at 755. note 73, at supra D OT OT N see also O supra Unfortunately, courts have a tendency to rule in favor of strong Unfortunately, courts have a tendency . at 1326. . at 74 (D The proof against such an assertion is visible in today’s society, such an assertion is visible in today’s The proof against Lina M. Khan, Warren, 79 note 58, at 1–3. . at 757. . at 781. . at . at 5; 75 . at 4–5. INAL INAL Id Id See In re Indep. Serv. Orgs. Antitrust Litig. See id See Id Id .F supra 77. 78. 79. 80. 76. Khan, 74. 75. 72. See 73. The judicial system needs to needs to be system judicial The more mindful of what the patent monopoly The above examples indicative of patent abuse alone, are not exclusively Chicago School economists would likely argue against such policies as argue against such Chicago School economists would likely AGNIER 10. G 10. Warren, as companies like Amazon are able to lock out competitors due to their control their control competitorsout like Amazon due to as companiesto lock are able of keystone markets. effectively allow these corporations to control the market to control allow these corporations effectively of patent licenses in importanceindirectly. Rising be the judicial policies of trust- again should busting from 1900s with courts becoming the early more worried about patent monopoliesconcentrations of the few, whether directly in the hands of or indirectly. like this, it is not difficult to extrapolate howlike this, it is not difficult to extrapolate Amazon can easily dominate competitors. vertical integration, Indeed, due to Amazon is fully capable of never needing to instead, sell its licenses to competitors; many competitors find products. it necessary to use Amazon’s systems to market their should be in relation to rulings. The largest companies in America today are today companies in America The largest in relation to rulings. should be and through vertical markettheir simply control of expanding capable integration tactics. horizontal damaging competition—after all, monopolies are merely an outcome of high efficiency. reader, the company “decided to price bestseller e-books at $9.99, significantly “decided to price bestseller the company reader, plan typically costs [Amazon’s]below the $12 to $30 that a new hardback that Apple had become the wayin business was e-book selling to dominate the the go-to platform music. for digital The strategy worked[.]” 162 concentrations of wealth in a handful of shadowy parent corporations of shadowy a handful of wealth in concentrations patent protections over market ones. court must weigh the patent-holder’s right to exclude against any alleged antitrust acts the holder may be committing. right to Because of the holder’s long wouldscholars there is no antitrust violations so argue that exclude, many but they do show how utilizing patents in an anticompetitive manner can damage the greater market. are not In fact, situations like those just described uncommon. 40672-mqi_22-1 Sheet No. 83 Side B 05/20/2019 14:43:36 B 05/20/2019 83 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 84 Side A 05/20/2019 14:43:36 * 163 AGNIER However, However, G 81 11/5/2018 12:08PM ATTHEW M ONCLUSION L.J. 739, 747 (2002). (2002). L.J. 739, 747 III. C NTITRUST Antitrust Law at the Federal Circuit: Red Light or Green Light at ) , 69 A MYSTERY 253(b) SECTION OF note 73, at 785. note 73, at ELETE D supra OT OT N O —efficiency is no longer required. A shift in judicial policy away (D 83 Khan, —by from to exclude others using their patents the market . 82 INAL INAL Id See .F * 2018. J.D., Marquette University Law School, May 83. 82. 81. Peter M. Boyle et al., Elon Musk he was freeing up his patents, when likely had pure intentions AGNIER M K C Y 10. G 10. altogether. Chicago School economists Chicago School altogether. businesses’ argue that these would led themincreased efficiency markets. to dominate the But companies like simply by barring any capable of dominating the market Google are currently and all entry holding so strictly to the patent holder’s right to exclude others is a dangerous others is a dangerous right to exclude holder’s strictly to the patent holding so as larger companiespath to tread, by that line capable of trouncing are fully or—specificallylicensure selectively, refusing to internet-related businesses but that does not mean motives ulterior the board of did not also exist within directors and prominent Musk shareholders. himself likely had knowledge of situation as a win-win.sawthe boons of avoiding antitrust and the Either way, Tesla’s actions show an act in line with the historically intended use of increased allocations of considering the dedication to the public. However, suchpower in fewer corporations, should Courts should a use be continued? be wary of allowing any sort of monopoly, and that includes the patent right. The patent right must use of limiting be returned to its original, intended the current expansion of patent rights has holder’s right only to exclusion. The essentially control the marketsallowed these large corporations to by not only their patents to dominaterefusing licenses but also by using markets and exclude competitors. of thought must The Chicago School be removed from competitionjurisprudence in order to rebalance in our current age of monopolistic dominance, to the public can be the avenue to and dedication policy. achieve that in both doctrine and the IP-Antitrust Intersection? from must protecting these corporate giants be considered, as a market failure these samecurrently exists where not only the production giants can control but also the flow of information.and sale of goods Dedication to the public must remedy be considered as a to this problem, where a few particularly companies have so much accumulatedthe consumer power that both and dominance. competitors challenge these companies’ cannot market as the holder is not using their right to illegally misuse their patent. misuse their illegally to right their is not using holder as the 2018] 40672-mqi_22-1 Sheet No. 84 Side A 05/20/2019 14:43:36 A 05/20/2019 84 Side Sheet No. 40672-mqi_22-1 40672-mqi_22-1 Sheet No. 84 Side B 05/20/2019 14:43:36 M K C Y 40672-mqi_22-1 Sheet No. 84 Side B 05/20/2019 14:43:36 B 05/20/2019 84 Side Sheet No. 40672-mqi_22-1