Patent Troll Myths
It turns out that just about everything we thought about patent trolls – good or bad – is wrong. Using newly gathered data, this article presents an ethnography of sorts about highly litigious non-practicing entity (NPE) plaintiffs. The results are surprising: they show that the conventional wisdom about patent trolls is likely based on anecdotal, but infrequently occurring, events. Instead, the patents enforced by so-called trolls – and the companies that obtained them – look a lot like other litigated patents and their owners.
To be sure, whether an NPE qualifies as a troll depends on who is doing the name-calling. Regardless of definition, though, commentators on all sides have used little evidence to support their positions. The reason is simple: there has been little research about the patents litigated by NPEs and even less about the source of those patents.
Understanding NPEs is critically important to better understanding the role of patents in society and in entrepreneurial businesses. The debate cannot be resolved without further study of the companies whose patents are now litigated by NPEs. This study is the first step in that direction.
Source: works.bepress.com
Stories About Science in Law: Literary and Historical Images of Acquired Expertise
Presenting examples of how literary accounts can provide a supplement to our understanding of science in law, this book challenges the view that law and science are completely different. It focuses on stories which explore the relationship between law and science, especially cultural images of science that prevail in legal contexts. Contrasting with other studies of the transfer and construction of expertise in legal settings, this book considers the intersection of three interdisciplinary projects: law and science, law and literature, and literature and science. Looking at the appropriation of scientific expertise into law from these perspectives, this book presents an original introduction into how we can gain insight into the use of science in the courtroom and in policy and regulatory settings through literary sources.
Source: works.bepress.com
IP and Entrepreneurship in an Evolving Economy: A Case Study
What if you built an intellectual property clinic and hardly anyone came? This brief book chapter is a case study of the first two years of a new entrepreneurship law clinic in an evolving economy: West Virginia. While the clinic had entrepreneurial clients, those clients had developed little intellectual property.
This chapter takes a closer look at the chicken-and-egg problem of knowledge development in an evolving economy, and concludes that law clinics can only support IP growth - they cannot create it on their own. The chapter then generalizes from the experience to suggest ways that law clinics can support their entrepreneurial communities while assisting in intellectual property growth.
The chapter and book are part of the Creativity and the Law series.
Source: works.bepress.com
Waiting for St. Vladimir
Alasdair MacIntyre believes that the Aristotelian, virtue-theoretic morality he supports is incompatible with the economic arrangements of capitalism. In this brief article, I show that MacIntyre's main arguments for this thesis are based on discredited theories from Marx, not Aristotle, and that the arguments MacIntyre that gives that really are based on Aristotelian, virtue-theoretic notions all fail.
Source: works.bepress.com
Increasing Preparer Responsibility, Visibility and Competence
The insights from the responsive regulation literature present an intriguing model for IRS interaction with preparers, and provide a theoretical context for a more nuanced approach that the IRS could adopt when considering its return preparer strategies. To some extent, the IRS's current emphasis on preparer education, including the significant resources expended on tax forums and other general outreach programs, reflects IRS awareness that its interaction with preparers must take a varied approach. In this paper, I propose a more personal contact paradigm with preparers, with those contacts facilitated by heightened identification requirements and a more dedicated IRS effort to mine preparer data and direct targeted communication and efforts reflective of the data it will capture. The proposed approach will contribute to greater preparer visibility, responsibility and competence, and will ultimately allow for the IRS and preparers to genuinely work together to improve the accurate reporting of information on tax returns, and make it more difficult for preparers to pass on inaccurate information to the IRS. A prerequisite for this type of approach is that the IRS must have sufficient information regarding who the good and who the bad actors are in the return preparation industry. There is a deep need for the IRS to collect information by type of preparer, and have a nuanced understanding of error rates by preparer and by issue, with a healthy dose of qualitative on the ground resources backstopping and contributing to understandings that the numbers suggest. Encouraging good behavior must start with the IRS knowing and acting on information about how certain preparers are interacting with taxpayers. Changing preparer conduct through audits, heightened penalties, and the use of civil injunction proceedings should come only after the IRS encourages more positive steps, and only after the IRS directs disapproval with what it perceives to be improper preparer conduct. Possible legislative change that would require registration and certification of preparers could also help facilitate effective oversight of the preparer community. This possible additional regulation could be the trigger for the IRS to meaningfully track information related to preparers and encourage better behavior, while at the same time keeping its powder dry for the egregious actors who need more traditional sanction-based approaches.
Source: works.bepress.com
A Surprisingly Useful Requirement
For 220 years, the Patent Act has required patentable inventions to be “new and useful.” For almost as long, courts have struggled with difficult questions about what to protect by patent and what to leave in the public domain. Patent laws provide a variety of rules to help answer these questions, but the very nature of translating an inventive principle into written form can make application of these rules elusive. As a result, consistent application of patent law can often involve guesswork and hand-waving at the margins of difficult cases.
There are many principled ways to make headway through such doctrinal thickets. Some look to economic analysis, others to natural rights, while still others focus primarily on patentability criteria such as newness and disclosure.
In the broad scheme of things, however, the requirement that an invention be useful has been nearly non-existent – essentially ignored. The level of “utility” currently required to obtain a patent is extremely low: the invention need only operate as described and potentially provide some de minimis public benefit. Patents that fail to meet this standard are rare, and usually limited to perpetual motion machines and chemicals with unknown effects. As a result, the invention’s usefulness has never been considered an over-arching principle that can help decide difficult questions about what should be patented.
Ignoring usefulness is a mistake. Usefulness can be – and in some ways already is – surprisingly helpful in patent law and policy. This article’s goal is to show how usefulness is not only relevant, but also how it is important. Usefulness can underlie a principled approach to resolve longstanding doctrinal questions, resolve close factual questions of patentability, explain existing rules, or provide meaning to vague requirements. The doctrine is especially helpful at the margins, where some policy is needed to decide close cases; usefulness can often put a thumb on the scale.
To be sure, usefulness does not answer every question, and in some cases can only provide guidance rather than resolution. Even so, this article follows on its predecessor, Reinventing Usefulness, by presenting the first comprehensive illustration of how some difficult, fundamental questions become answerable when viewed through the lens of usefulness. The analysis is descriptive in part and normative in part. Sometimes rules implicitly or explicitly consider usefulness, and some rules should start doing so.
Source: works.bepress.com
Girl Young