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Abuse of Dominantposition and Switching Costs
UNIVERSITY OF LONDON REFUSAL TO LICENSE: ABUSE OF DOMINANT POSITION AND SWITCHING COSTS NET LE SUBMITTED TO THE LAW DEPARTMENT OF THE LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE FOR THE DEGREE OF DOCTOR OF PHILOSOPHY LONDON, MAY 2004 U /« 3 L \ * f LONDIU) \ WtfV. / UMI Number: U615726 All rights reserved INFORMATION TO ALL USERS The quality of this reproduction is dependent upon the quality of the copy submitted. In the unlikely event that the author did not send a complete manuscript and there are missing pages, these will be noted. Also, if material had to be removed, a note will indicate the deletion. Dissertation Publishing UMI U615726 Published by ProQuest LLC 2014. Copyright in the Dissertation held by the Author. Microform Edition © ProQuest LLC. All rights reserved. This work is protected against unauthorized copying under Title 17, United States Code. ProQuest LLC 789 East Eisenhower Parkway P.O. Box 1346 Ann Arbor, Ml 48106-1346 Th e s e s F 353£ . Library British Library of Political and Economic Science IJW 5S 5 II ACKNOWLEDGEMENT Foremost, I wish to express my deep gratitude to my supervisors, Professor William T. Murphy and Mr. Andrew Murray for their continual support throughout this thesis. Their comments have helped to essentially improve the accuracy of my research. Further, I wish to thank Mr. Giorgio Monti for reviewing my drafts, sharing with me books, giving me invaluable feedback and assistance. Others from LSE whom I would like to thank include Doctors Carsten Sorensen and Ole Hanseth (Department of Information System), Professors Max Steuer, Dany Quah and Michele Picione (Department of Economics) for reading my drafts, generously sharing with me their knowledge, improving my understanding and moreover providing me with excellent research inspiration. -
THE EVOLVING COMMON LAW DOCTRINE of COPYRIGHT MISUSE: a UNIFIED THEORY and ITS APPLICATION to SOFTWARE by Brett .Frischmannt and Dan Mqylai
THE EVOLVING COMMON LAW DOCTRINE OF COPYRIGHT MISUSE: A UNIFIED THEORY AND ITS APPLICATION TO SOFTWARE By Brett .Frischmannt and Dan Mqylai ABSTRACT This Article explores the common law defense of copyright misuse from a variety of angles in an effort to refine and unify ex- isting views. The unified model that emerges is then applied to software copyright, addressing the tension that software creates within copyright law as well as between copyright, patent, and an- titrust law. Part I develops a jurisprudential model for understand- ing the substantive relationship between the copyright misuse doc- trine and copyright, patent, and antitrust laws, and the procedural approaches taken by courts when formulating and applying misuse principles-per se rules and the rule of reason. Part Ill examines four Supreme Court cases that provide guidance for the application of misuse principles in the copyright context. It then turns to an analysis of the application of copyright misuse in the federal courts of appeals. These discussions enable a distillation of guiding prin- ciples from the case law in an attempt to clarify the "current state of the copyright misuse doctrine." Part V applies the principles derived in Parts II and 111 to software copyrights and proposes a per se rule against licensing restrictions upon reverse engineering that complements antitrust-based misuse and the fair use doctrine. Rather than attempt to provide a comprehensive set of public pol- icy-based misuse rules, this Article instead presents a single rule as © 2000 Brett Frischmann and Dan Moylan. t Associate with Wilmer, Cutler & Pickering; M.S., B.A., Columbia University, J.D., Georgetown University Law Center. -
Patents and Monopolization: the Role of Patents Under Section Two of the Sherman Act Ramon A
Marquette Law Review Volume 68 Article 2 Issue 4 Summer 1985 Patents and Monopolization: The Role of Patents Under Section Two of the Sherman Act Ramon A. Klitzke Follow this and additional works at: http://scholarship.law.marquette.edu/mulr Part of the Law Commons Repository Citation Ramon A. Klitzke, Patents and Monopolization: The Role of Patents Under Section Two of the Sherman Act, 68 Marq. L. Rev. 557 (1985). Available at: http://scholarship.law.marquette.edu/mulr/vol68/iss4/2 This Article 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 Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contact [email protected]. PATENTS AND MONOPOLIZATION: THE ROLE OF PATENTS UNDER SECTION TWO OF THE SHERMAN ACT RAMON A. KLITZKE* Section Two of the Sherman Act1 proscribes monopoliza- tion, a broad, ambiguous term that is susceptible of myriads of diverse interpretations in the complex world of business com- petition. Perceptions of monopolization as unlawful, anticom- petitive behavior vary widely, depending upon the various competitive methods utilized to achieve the monopolization. Some of these methods, such as the patent grant, are explicitly sanctioned by statutes and are therefore not unlawful. The patent grant, which is ostensibly a legal monopoly, 2 can be forged by its owner into a most powerful anticompetitive weapon that may be used to transcend the legal limits of its use. In numerous ways it may become a principal actor in the monopolization that is prohibited by Section Two. -
An Empirical Study of the Effects of Ex Ante Licensing Disclosure Policies on the Development of Voluntary Technical Standards
An Empirical Study of the Effects of Ex Ante Licensing Disclosure Policies on the Development of Voluntary Technical Standards by Jorge L. Contreras American University Washington College of Law Washington, DC for NISI National Institute of Standards and Technology U.S. Department of Commerce NIST Standards Services Group Under NIST Contract No. SB134110SEI033 This publication was produced as part of contract SB134110SEI033 with the National Institute of Standards and Technology. The contents of this publication do not necessarily reflect the views or policies of the National Institute of Standards and Technology or the U.S. Government. GCR 11-934 Release Date: June 27, 2011 An Empirical Study of the Effects of Ex Ante Licensing Disclosure Policies on the Development of Voluntary Technical Standards Jorge L. Contreras Table of Contents Acknowledgements and Statement of Interests I. Executive Summary II. Background A. Development of Voluntary Technical Standards B. Patent Hold-Up in Standards-Setting C. SDO Patent Policies D. FRAND Licensing Requirements E. Ex Ante Disclosure ofLicensing Terms as a Proposed Solution F. Criticisms ofEx Ante Policy Policies G. SDO Adoption and Consideration ofEx Ante Policies 1. VITA 2. IEEE 3. ETSJ 4. Consortia (W3C and NGMN) 5. JETF and "Informal" Ex Ante Approaches III. Study Aims and Methodology A. Study Aims B. Methodology 1. SDOs Selected 2. Time Period 3. Historical Data 4. Survey Data IV. Findings and Analysis A. SDO Patent and Licensing Disclosures B. Number ofStandards C. Length ofStandardization Process D. Personal Time Commitment E. Membership F. Quality ofStandards G. Effect on Royalty Rates V. Conclusions Data Appendices List of References Ex Ante Standards Study Report Page i June 27,2011 Acknowledgements This study was funded by the u.s. -
ANTITRUST ENFORCEMENT and INTELLECTUAL PROPERTY RIGHTS: Promoting Innovation and Competition
ANTITRUST ENFORCEMENT AND INTELLECTUAL PROPERTY RIGHTS: Promoting Innovation and Competition ISSUED BY THE U.S. DEPARTMENT OF JUSTICE AND THE FEDERAL TRADE COMMISSION APRIL 2007 This Report should be cited as: U.S. DEP’T OF JUSTICE & FED. TRADE COMM’N, ANTITRUST ENFORCEMENT AND INTELLECTUAL PROPERTY RIGHTS: PROMOTING INNOVATION AND COMPETITION (2007). This Report can be accessed electronically at: www.usdoj.gov/atr/public/hearings/ip/222655.pdf www.ftc.gov/reports/index.shtm TABLE OF CONTENTS INTRODUCTION ................................................................. 1 CHAPTER 1: THE STRATEGIC USE OF LICENSING: UNILATERAL REFUSALS TO LICENSE PATENTS ................................................. 15 I. Introduction ......................................................... 15 II. The Kodak and CSU Decisions .......................................... 16 A. The Basic Facts and Holdings of the Cases .................. 16 B. Panelist Views on Kodak .................................. 17 C. Panelist Views on CSU ................................... 18 D. Ambiguity as to the Scope of the Patent Grant .............. 19 III. Policy Issues Relating to Unilateral Refusals to License ................... 20 A. Should Antitrust Law Accord Special Treatment to Patents? .. 21 B. Should Market Power Be Presumed with Patents? ........... 22 C. If an Antitrust Violation Were Found, Would There Be Workable Remedies for Unconditional, Unilateral Refusals to License Patents? .............................. 22 D. What Would Be the Effect of Liability for -
Insufficiency of Antitrust As a Test for Patent Misuse
The Insufficie ncy of Antitrust Analysis for Patent Misuse Robin C. Feldman* Patent misuse lies at the intersection of patent and antitrust law. The history and conceptual overlap of patent law and antitrust law have left the doctrine of misuse hopelessly entangled with antitrust doctrines. In response, a number of scholars and legislators have argued for streamlin- ing the patent misuse inquiry by applying antitrust rules.1 Current court decisions have moved in this direction as well.2 The notion of applying antitrust rules to test for patent misuse has an appealing logic. Patent misuse can be defined as an improper attempt to expand a patent. Antitrust principles, among other things, restrict the improper expansion of monopolies. Shouldn’t courts be able to use anti- trust rules to identify an improper expansion of a patent monopoly? * Assistant Professor, U.C. Hastings College of the Law. I wish to thank Margreth Barrett, John Barton, Ash Bhagwat, Dan Burk, June Carbone, David Earp, Susan Freiwald, Paul Goldstein, Matthew Greene, Herbert Hovenkamp, Jeff Lefstin, Mark Lemley, Maura Rees, Ernest Young, and participants in the 2003 Intellectual Property Scholars’ Conference for their comments on prior drafts. I am grateful beyond measure to Linda Weir, U.C. Hastings Public Services Librarian, for her research and insights. I am also indebted to Amy Hsiao for research assistance on antitrust and to Gary Chang and Daniel Wan for research assistance on Reach-Through Royalties. 1. See, e.g., USM Corp. v. SPS Technologies, Inc., 694 F.2d 505, 512 (7th Cir. 1982); Windsurfing Int’l Inc. v. -
REVITALIZING the DOCTRINE of TRADEMARK MISUSE by William E
REVITALIZING THE DOCTRINE OF TRADEMARK MISUSE By William E. Ridgwayt TABLE OF CONTENTS I. O VERVIEW O F M ISUSE ..................................................................... 1550 A. MISUSE WITHIN PATENT AND COPYRIGHT LAW .............................. 1550 B. MISUSE WITHIN TRADEMARK LAW .................................................. 1553 1. Early Cases and Unclean Hands ............................................... 1553 2. Modern Decline .......................................................................... 1554 II. TRANSLATING MISUSE TO TRADEMARK LAW ........................ 1557 A. OVERVIEW OF TRADEMARK LAW ..................................................... 1557 B. DISTINGUISHING TRADEMARK LAW FROM PATENT AND C OPYRIGHT LAW .............................................................................. 1558 1. TrademarksPrincipally Protect Society Rather than Creators. 1558 2. Differences in ConstitutionalBasis for Protection .................... 1561 3. TrademarkLaw's Vague, Fairness-BasedBoundaries .............. 1562 III. WHAT CONDUCT SHOULD CONSTITUTE TRADEMARK M ISU SE ? ................................................................................................. 1564 A. ANTICOMPETITIVE AND PUBLIC POLICY APPROACH ........................ 1565 B. THE PROPOSED APPROACH ............................................................... 1566 1. IncorrectAssertion of Rights ..................................................... 1567 2. Improper Purpose ..................................................................... -
Viral Licensing: Ensuring the Public Interest When Taxpayers Fund Pharmaceutical Research
Santa Clara Law Review Volume 59 Number 3 Article 6 2-6-2020 VIRAL LICENSING: ENSURING THE PUBLIC INTEREST WHEN TAXPAYERS FUND PHARMACEUTICAL RESEARCH Feldman, Robin C. Change-Rowe, Betty Oral, Rabiah Follow this and additional works at: https://digitalcommons.law.scu.edu/lawreview Part of the Law Commons Recommended Citation Feldman, Robin C.; Change-Rowe, Betty; and Oral, Rabiah, VIRAL LICENSING: ENSURING THE PUBLIC INTEREST WHEN TAXPAYERS FUND PHARMACEUTICAL RESEARCH, 59 SANTA CLARA L. REV. 641 (2020). Available at: https://digitalcommons.law.scu.edu/lawreview/vol59/iss3/6 This Article is brought to you for free and open access by the Journals at Santa Clara Law Digital Commons. It has been accepted for inclusion in Santa Clara Law Review by an authorized editor of Santa Clara Law Digital Commons. For more information, please contact [email protected], [email protected]. VIRAL LICENSING: ENSURING THE PUBLIC INTEREST WHEN TAXPAYERS FUND PHARMACEUTICAL RESEARCH Robin C. Feldman,* Betty Change Rowe,** & Rabiah Oral*** In recent years, the nation’s drug development and delivery system has loomed in the forefront of pressing policy concerns. This piece suggests a relatively simple pathway that could provide opportunities for progress with aspects of the problem. Through the addition of a few choice provisions in their licensing agreements, research universities could improve consumer choices and access to the drugs developed with their government-funded research. Looking at the entire drug development system, universities play a complex set of roles. They are both the keepers of the academic flame and the stewards of public money. Beyond that, universities also may benefit from the substantial royalty dollars that flow when pharmaceutical companies purchase licenses. -
Should We Kill the Dinosaurs Or Will They Die of Natural Causes Peter Brown
Cornell Journal of Law and Public Policy Volume 9 Article 8 Issue 1 Fall 1999 Should We Kill the Dinosaurs or Will They Die of Natural Causes Peter Brown Lauren McCollester Follow this and additional works at: http://scholarship.law.cornell.edu/cjlpp Part of the Law Commons Recommended Citation Brown, Peter and McCollester, Lauren (1999) "Should We Kill the Dinosaurs or Will They Die of aN tural Causes," Cornell Journal of Law and Public Policy: Vol. 9: Iss. 1, Article 8. Available at: http://scholarship.law.cornell.edu/cjlpp/vol9/iss1/8 This Article is brought to you for free and open access by the Journals at Scholarship@Cornell Law: A Digital Repository. It has been accepted for inclusion in Cornell Journal of Law and Public Policy by an authorized administrator of Scholarship@Cornell Law: A Digital Repository. For more information, please contact [email protected]. SHOULD WE KILL THE DINOSAURS OR WILL THEY DIE OF NATURAL CAUSES? Peter Brown and Lauren McCollestert Since the industrial revolution, certain companies were able to attain monopolistic dominance in particular markets or industries because of the ownership of physical property such as steel mills, railroads and tele- phone lines. Such monopolies have prompted regulatory and judicial scrutiny as well as a desire to oust them from their dominant perches. With the dawn of the information age, an analogous situation has arisen in the technology industry. For example, as of this writing, Microsoft, through the copyright it holds on the Windows platform, is the leading provider of PC operating system software;1 Intuit, with its Quicken Tm software, dominates the market for personal financial management 3 software;2 and Macafee leads the market in virus detection software. -
PATENT MISUSE THROUGH the CAPTURE of INDUSTRY STANDARDS by Janice M
PATENT MISUSE THROUGH THE CAPTURE OF INDUSTRY STANDARDS By Janice M. Muelle ABSTRACT The existence of a patent on a particular technology conveys the statu- tory right to exclude, but in no way guarantees economic power in the marketplace. When a patented technology is adopted as an industry stan- dard, however, that equation can change radically. Because of competitive necessity to practice the patented standard, particularly in industries char- acterized by network effects, the power potentially conveyed by the patent is greatly amplified. Industry standards are subject to "capture" when firms that participate in formulating a standard have also obtained (or are seeking) patent or other proprietary rights in some aspect of the technical subject matter of the standard, without disclosing the existence of those rights to the standard-setting organization. Conflicts arise when a license under these patents is essential to practicing a standard and the patent owner refuses to license certain competitors, or grants licenses only at terms perceived by users as commercially unreasonable. Absent a mecha- nism to compel licensing, a hold-up problem ensues. This Article contends that patents are not fundamentally incompatible with industry standards, but that the existence of patents on standards must be transparent and the licensing of such patents subject to appropriate con- trols so as to ensure widespread industry access. In order to make fully informed choices about technology under consideration for adoption as an industry standard, standards-setting organizations must be made aware of any relevant patent rights or pending patent applications owned by stan- dards-setting participants. In cases of "abusive" standards capture, defined as the intentional or willful nondisclosure of patent rights by a standards- setting participant who thereafter refuses to license all users at reasonable © 2002 Janice M. -
How Misuse of Patent Law by Unethical Business Practices of The
University of Illinois Springfield Patently Underdeveloped: How Misuse of Patent Law by Unethical Business Practices of the Pharmaceutical Industry Hurts Developing Nations Heba Qazi Abstract The present text explores the misuse of patent law in the pharmaceutical industry from its original purpose of the protection of intellectual property rights. Unethical business practices of Big Pharma has stifled innovation and decreased the accessibility of necessary drugs while increasing unethical behaviors. Global cases of malpractice within the industry are examined to determine the necessity for changes in both the pharmaceutical industry and its surrounding environment. The real effects of this issue are experienced in developing nations, in which there is a greater disparity of medication accessibility and affordability as compared to a developed nation. Developed nations have the privilege to value profit margins over individuals’ rights to sufficient healthcare because of the structure of multinational corporations and investment in research and development. As a result of profit-motives of the powerful sector of the pharmaceutical industry, “Big Pharma,” developing nations are neglected in terms of research and development and distribution of medication due to their lack of profitability. However, due to the wide impact of the actions of pharmaceutical corporations, there must be a perspective of social obligation to society. Additionally, corporate social responsibility, or obligation to act ethically towards society, should be implemented to benefit both an ethical and business angle to alter the negative outlook of Big Pharma upon developing nations. Through an analysis of the HIV/AIDs epidemic as well as other health concerns potentially ailed by patented medication, this paper argues that a mitigation of unethical business practices through corporate social responsibility, change in patent types, and stability of government in combination has the ability to improve medication innovation, access, and affordability while benefiting Big Pharma. -
The Insufficiency of Antitrust Analysis for Patent Misuse, 55 Hastings L.J
University of California, Hastings College of the Law UC Hastings Scholarship Repository Faculty Scholarship 2003 The nsI ufficiency of Antitrust Analysis for Patent Misuse Robin Feldman UC Hastings College of the Law, [email protected] Follow this and additional works at: https://repository.uchastings.edu/faculty_scholarship Part of the Intellectual Property Law Commons Recommended Citation Robin Feldman, The Insufficiency of Antitrust Analysis for Patent Misuse, 55 Hastings L.J. 399 (2003). Available at: https://repository.uchastings.edu/faculty_scholarship/162 This Article is brought to you for free and open access by UC Hastings Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. Faculty Publications UC Hastings College of the Law Library Feldman Robin Author: Robin Cooper Feldman Source: Hastings Law Journal Citation: 55 Hastings L.J. 399 (2003). Title: The Insufficiency of Antitrust Analysis for Patent Misuse Originally published in HASTINGS LAW JOURNAL. This article is reprinted with permission from HASTINGS LAW JOURNAL and University of California, Hastings College of the Law. The Insufficiency of Antitrust Analysis for Patent Misuse ROBIN C. FELDMAN* Patent misuse lies at the intersection of patent and antitrust law. The history and conceptual overlap of patent law and antitrust law have left the doctrine of misuse hopelessly entangled with antitrust doctrines. In response, a number of scholars and legislators have argued for streamlin- ing the patent misuse inquiry by applying antitrust rules.' Current court decisions have moved in this direction as well.' The notion of applying antitrust rules to test for patent misuse has an appealing logic.