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Author: Andrew W. Torrance Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
In their seminal 1972 article, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral," Guido Calabresi and A. Douglas Melamed proposed an analytic framework for comparing entitlements protected by property rules and liability rules. Their article has become one of the cornerstones of modern legal scholarship, and the influence of the theory of legal rules they established has extended far beyond tort and property into almost every area of the law, including intellectual property. Despite the prodigious influence this theory of legal rules has had, its implications have never been explored experimentally. To remedy this knowledge gap, we conducted a series of controlled experiments on liability and property rules, using the patent system as an experimental model. Expressed in the nomenclature of Calabresi and Melamed, the United States' patent law has recently witnessed a shift away from property rules and towards liability rules. This Article presents an experimental study that attempts to test the hypothesis that amounts of innovation, productivity, and social utility vary across patent systems that tend to emphasize either property rules or liability rules. The results of our experiments suggest that the choice between property and liability rules does, indeed, matter, but in a surprising way. Despite the common assumption that property rules tend to outperform liability rules, we found the opposite: in a computational model of the patent system, liability rules outperformed property rules in generating innovation, productivity, and social utility.
Author: Andrew W. Torrance Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
In their seminal 1972 article, "Property Rules, Liability Rules, and Inalienability: One View of the Cathedral," Guido Calabresi and A. Douglas Melamed proposed an analytic framework for comparing entitlements protected by property rules and liability rules. Their article has become one of the cornerstones of modern legal scholarship, and the influence of the theory of legal rules they established has extended far beyond tort and property into almost every area of the law, including intellectual property. Despite the prodigious influence this theory of legal rules has had, its implications have never been explored experimentally. To remedy this knowledge gap, we conducted a series of controlled experiments on liability and property rules, using the patent system as an experimental model. Expressed in the nomenclature of Calabresi and Melamed, the United States' patent law has recently witnessed a shift away from property rules and towards liability rules. This Article presents an experimental study that attempts to test the hypothesis that amounts of innovation, productivity, and social utility vary across patent systems that tend to emphasize either property rules or liability rules. The results of our experiments suggest that the choice between property and liability rules does, indeed, matter, but in a surprising way. Despite the common assumption that property rules tend to outperform liability rules, we found the opposite: in a computational model of the patent system, liability rules outperformed property rules in generating innovation, productivity, and social utility.
Author: Daniel Krauspenhaar Publisher: Springer ISBN: 3642409008 Category : Law Languages : en Pages : 251
Book Description
The primary purpose of a patent law system should be to enhance economic efficiency, in particular by providing incentives for making inventions. The conventional wisdom is that patents should therefore be strictly exclusive rights. Moreover, in practice patent owners are almost never forced to give up their right to exclude others and receive only a certain amount of remuneration with, for instance, compulsory licensing. Other economically interesting patent-law objectives, however, include the transfer and dissemination of knowledge. Mechanisms exist by which the patent owner decides if he or she would prefer exclusive or non-exclusive rights, for instance the opportunity to declare the willingness to license and create patent pools. But it is questionable whether these mechanisms are sufficient and efficient enough in view of the existence of patent trolls and other problems. This work challenges the conventional wisdom to a certain extent and makes proposals for improvements.
Author: Rosa Castro Bernieri Publisher: European Studies in Law and Economics ISBN: 9789400001053 Category : Aansprakelijkheid / gtt Languages : en Pages : 0
Book Description
This book examines alternative ways of protecting patent rights using the law and economics framework of property and liability rules. Traditional compulsory licenses are compared with the most recent discussions on the choice between granting or denying injunctive relief for patents (ex post liability rules). The debate about strategic behavior triggered by the patent system, especially in the aftermath of the US Supreme Court decision in eBay v. MercExchange is discussed, along with policy perspectives on both sides of the Atlantic. The problem of calculating the level of compensation, which is one of the most important critiques against the use of liability rules in patent law, is also examined in depth. The book concludes by suggesting that a coherent patent system could opt for property rules in general cases, while leaving enough space for exceptions and limited liability rules. Curtailing exceptions and limitations to patent rights, including the use of patent liability rules, could otherwise risk stifling innovation and even contradicting the goals of patent law.
Author: Carl Shapiro Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
When a patent has been infringed, the court can impose a forward-looking remedy based on a property rule or based on a liability rule. Under the property rule, the court issues an injunction ordering the infringing party to stop infringing. Under the liability rule, the court allows the infringing party to continue to infringe the patent in question so long as it pays specified ongoing royalties to the patent holder. Since the Supreme Court's landmark 2006 decision in the eBay case, the United States has employed a hybrid system: the lower courts have discretion, on a case-by-case basis, to issue an injunction or to establish ongoing royalties. This article develops a simple model, including the possibility of patent holdup, in which the court has an imperfect ability to measure the harm to the patent holder caused by ongoing infringement. In the model, the patent holder and the infringing firm can negotiate efficiently over a patent license following the court's imposition of a remedy, subject to some antitrust limits. Remedy regimes are evaluated based on how close they come, in expected value, to compensating the patent holder for any ongoing infringement. The model identifies a fundamental tradeoff: ongoing royalties perform better, the greater are the switching costs the infringing firm would bear to redesign its product to avoid infringing, but an injunction performs better, the greater is the court's uncertainty about the harm that ongoing infringement will cause to the patent holder. Based on this analysis, recommendations regarding prospective patent remedies are offered to the courts.
Author: Stewart E. Sterk Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
Clarity can be a considerable virtue in property rights. But even when property rights are defined clearly in the abstract, ascertaining the scope of those rights in concrete situations often entails significant cost. In some instances, the cost of acquiring information about the scope of property rights will exceed the social value of that information. In those circumstances, further search for information about the scope of rights is inefficient; the social harm avoided by further search does not justify the costs of the search. Potential resource users, however, make decisions based on private costs and benefits, not social costs and benefits. Legal rules can create incentives to search for information even when the search would be inefficient. In particular, "property rule" protection often gives leverage to right holders disproportionate to the harm those right holders would suffer from intrusion on their rights. That leverage, in turn, gives potential resource users private incentives to expend time and money on search even when search will generate minimal social benefit. "Liability rule" protection, by contrast, limits incentives to conduct inefficient search for the scope of property rights. Property doctrine reflects this insight in a number of contexts. Thus, high search costs can explain the unwillingness of courts to award injunctive relief in cases of ¿innocent¿ boundary encroachments, as well as the Supreme Court's recent limitations on the routine award of injunctive relief in patent and copyright cases.
Author: Rosa Castro Publisher: ISBN: Category : Languages : en Pages : 358
Book Description
This book examines alternative ways of protecting patent rights using the law and economics framework of property and liability rules. Traditional compulsory licenses are compared with the most recent discussions on the choice between granting or denying injunctive relief for patents (ex post liability rules). The debate about strategic behaviour triggered by the patent system, especially in the aftermath of the U.S. Supreme Court decision in eBay v. MercExchange is discussed along with policy perspectives on both sides of the Atlantic. The problem of calculating the level of compensation, which is one of the most important critiques against the use of liability rules in patent law, is also examined in depth. The book concludes by suggesting that a coherent patent system could opt for property rules in general cases while leaving enough space for exceptions and limited liability rules. Curtailing exceptions and limitations to patent rights, including the use of patent liability rules, could otherwise risk stifling innovation and even contradicting the goals of patent law.
Author: Jae Hun Park Publisher: Edward Elgar Publishing ISBN: 1849805482 Category : Law Languages : en Pages : 253
Book Description
Dr Jae Park is to be congratulated for turning our attention to this difficult and underexplored area. His work focuses on standards and patents but goes well beyond an initial first analysis. He examines the finer points of both sets of rules in order to find out exactly where the problem lies and he then looks at the existing mechanisms that could provide a solution. Many of these have their roots in the area of competition law, but his thorough analysis shows that competition law in its current form and with its current limitations is not the perfect tool to address the problems that arise when patented technology becomes the object of standardisation. This leads Dr Park to develop his own solution for the problem at hand: a solution which he finds in the dynamic liability rules regime. This book really breaks new ground and provides a first and thorough analysis of this rarely addressed but increasingly important area. From the foreword by Paul L.C. Torremans, University of Nottingham, UK This insightful book reviews the inherent conflict between patent rights and industry standards and through analysis of both US and European case law proposes measures to improve current systems and foster greater innovation. Jae Hun Park searches for the appropriate balance between the rights of patent owners and the need for industry standards within the scope of patent law. He considers the current solutions provided by legal systems and using cost benefit analysis evaluates, from a legal and economic perspective, whether patent systems can be improved. Jae Hun Park proposes reform to the patent system that would introduce a dynamic liability rule regime , rather than property rules . The dynamic liability rule regime adopts property rules at the stage when there are still competing standards, and liability rules at the stage when there are no competing standards. This would, he argues, resolve the conflict between patents and standards and mitigate the patent hold-up problem. This is a must-read book for scholars interested in technology patents, innovation and competition law and policy, as well as those individuals working in standard setting organisations. It will also be of great interest to patent offices, patent attorneys and competition lawyers.
Author: Terence P. Ross Publisher: Law Journal Press ISBN: 9781588520944 Category : Law Languages : en Pages : 970
Book Description
This book addresses two crucial concerns of intellectual property owners--how to recover monetary compensation when an infringement has occurred and how to prevent further infringement.
Author: BJ Ard Publisher: ISBN: Category : Languages : en Pages : 0
Book Description
Patent and copyright rely heavily on property rules rather than liability rules: in the event of infringement, courts impose injunctive relief or punitive damages rather than compensatory damages. While this scheme is intended to protect creators' ex ante incentives to engage in intellectual production, the regime raises many problems for the creation and distribution of new works. In particular, it imposes unjustified costs on unwitting infringers and exacerbates the difficulty of coordinating among multiple parties to pursue projects that implicate several IP rights. Both problems could be ameliorated by strategic deployment of liability rules. The law of tangible property demonstrates how this strategy might work. While we often assume that the law protects tangible property with property rules, closer scrutiny shows that courts and lawmakers use liability rules to deal with unintentional trespasses and to circumvent holdout strategies that implicate real property.This analysis yields three payoffs. First, it develops the novel and counterintuitive argument that IP uses property rules in many circumstances where property law uses liability rules. This arrangement is backwards because the greater notice failures, inexhaustibility, and need for cumulative production inherent to our IP regimes relative to tangible property counsel in favor of liability rules. Second, it grounds the debate over the use of property rules versus liability rules in IP in tangible property doctrine, where courts and lawmakers have taken the pragmatic approach of structuring entitlements to facilitate economic progress. Finally, it identifies three ways the choice of remedies could serve as a concrete policy lever to address issues in IP: (1) We can correct notice failures by creating a “reasonable search defense” -- eliminating property rule protection in cases of accidental infringement -- to encourage users to search and owners to publicize their claims; (2) we can defuse holdout strategies by rejecting property rule protection for IP owners who refuse to bargain in good faith; and (3) the state can actively cut through patent thickets and similar anti-commons by utilizing -- or threatening to use -- its march-in rights and authority to enact compulsory licenses.
Author: Craig Allen Nard Publisher: Aspen Publishing ISBN: 145488665X Category : Law Languages : en Pages : 1885
Book Description
This comprehensive and practical book focuses on the core concepts of Intellectual Property. Its innovative pedagogy engages students with problems drawn from actual cases and provides them with introductions to cases and contextual summaries in the notes. Patent: Up to date Federal Circuit and Supreme Court case law, including: • Nautilus, Alice, Teva, Williamson, and Lexmark • Detailed substantive comments following the principal cases • More statistics and charts, particularly relating to USPTO decision-making and PTAB inter partes review • Enhanced Patent Reform Perspectives (i.e., America Invents Act) Copyright: • Expanded coverage of contemporary developments in copyright law, with 13 new cases; • Broader coverage of recent developments gives adopters greater flexibility in choosing materials within that structure. Trademark: • Updated to reflect recent Supreme Court decisions • New materials on bars to registration, functionality, expressive use, and remedies The purchase of this Kindle edition does not entitle you to receive 1-year FREE digital access to the corresponding Examples & Explanations in your course area. In order to receive access to the hypothetical questions complemented by detailed explanations found in the Examples & Explanations, you will need to purchase a new print casebook.
Author: Andrew W. Torrance
Author: Andrew W. Torrance
Author: Daniel Krauspenhaar
Author: Rosa Castro Bernieri
Author: Carl Shapiro
Author: Stewart E. Sterk
Author: Rosa Castro
Author: Jae Hun Park
Author: Terence P. Ross
Author: BJ Ard
Author: Craig Allen Nard