A fair-use-type ex post approach to cabining patent exclusivity is even more attractive as a theoretical matter now than it was in We argue that an adaptation of the approach pioneered by Elinor Ostrom and collaborators to commons arrangements in the natural environment may provide a template for the examination of constructed commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environment s within which they are embedded and with which they share interdependent relationships.
Such an improved understanding is critical for obtaining a more complete perspective on intellectual property doctrine and its interactions with other legal and social mechanisms of governing creativity and innovation. We propose an initial framework for evaluating and comparing the contours of different pooling arrangements with an eye toward developing an understanding of the institutional and structural differences across arrangements and industries as well as the underlying contextual reasons for such differences.
The proposed approach would draw upon case studies from a wide range of disciplines. Among other things, we argue that a theoretical approach to cultural constructed commons should consider rules pertaining to membership criteria, contribution and use of pooled resources, internal licensing conditions, management of external relationships, and institutional forms along with the degree of collaboration among members, sharing of human capital, degrees of integration among participants, and whether there is a specified purpose to the arrangement. This short Reply comments briefly on each of those responses.
In this symposium article, I argue that, over and above previously appreciated problems with regard to access and the traditional IP balance, the trouble with TRIPS - and with the global intellectual property law regime more generally - is that it is ill-designed to cope with changes in the innovative process itself and with the likely heterogeneity of desirable innovation approaches in different global contexts. While it is possible that current TRIPS flexibilities can be interpreted in ways that will better balance the needs of initial innovators against those of users and follow-on innovators, the very structure of the agreement is based on an assumption of mass market, seller-based innovation which may make it difficult to accommodate newer innovation paradigms.
To that end, I propose a re-envisioning of the World Intellectual Property Organization WIPO as a more broadly conceived innovation policy organization, which would serve as a center of discourse not only about how intellectual property law should be adapted to changing modes of innovation but also about how to confront new dilemmas raised by evolving innovative practices, which may involve issues beyond intellectual property law.
A broader mandate for WIPO could be implemented in several ways, with varying levels of administrative discretion vested in the re-imagined organization. As a first cut, WIPO might undertake to develop an Innovation Policy Agenda incorporating the concerns of innovative communities of various types, including commercial firms, user innovator communities, scientific researchers, open source proponents, and of other stakeholders, including developing and developed countries and NGOs representing users. An even more ambitious approach to WIPO involvement would be to amend TRIPS to provide a more open-ended exception provision to accommodate evolving innovation practices and to set out a more explicit role for WIPO in vetting potential exceptions.
The gist of the proposal is to shift the focus of WIPO's portfolio. Rather than considering innovation policy only secondarily, as it impacts the intellectual property regime, a re-envisioned WIPO would put innovation policy front and center, regarding intellectual property as only one mechanism for innovation. Since the negotiation of the Agreement on Trade-Related Aspects of Intellectual Property TRIPS in , the innovative landscape has undergone dramatic changes due to technological advances in fields such as biotechnology, nanotechnology, and digital communications and computation.
The increasing potential for user innovation, and open and collaborative innovation has brought an explosion of innovative activity that does not fit into the sales-oriented, mass market model which underlies the global intellectual property regime. In this Article, I argue that the debate over global governance of innovation should be expanded to account more fully for the implications of these changes.
For the most part, criticisms of TRIPS have focused on its failure to account adequately for current needs for access to the fruits of innovative activity. In particular, critics have focused on the agreement's failure to balance urgent public health needs appropriately against the marginal boost to pharmaceutical innovation supplied by patent protection in developing countries.
Here I take a different though complementary tack, focusing on the ways in which TRIPS and related agreements enshrine an unduly narrow approach to innovation itself. An adequate global governance system for innovation must take account of the diversity and dynamism of modes of innovation. I propose a re-imagining of the World Intellectual Property Organization as a broader-based innovation policy organization and a global administrative law approach to accommodate evolving modes of innovation.
It builds on an earlier study in which we argued that trends in the growth of the patent citation network provide evidence that the explosive growth in patenting in the late twentieth century was due at least in part to the issuance of increasingly trivial patents. We defined a measure of patent stratification based on comparative probability of citation; an increase in this measure suggests that the USPTO is issuing patents of comparatively less technological significance.
We also investigate the possibility that changes in our measure of stratification are due to something other than changes in patentability standards.
While not conclusive, our results suggest that neither shifts in predominance of technological areas nor changes in citation practice account for our observations. We have thus identified an apparent puzzle: This paper examines commons as socially constructed environments built via and alongside intellectual property rights systems. We sketch a theoretical framework for examining cultural commons across a broad variety of institutional and disciplinary contexts, and we apply that framework to the university and associated practices and institutions.
The article presents the author's analysis on the research tools and materials called Pasteur's Quadrant use in basic science and applied overlap in the U. He explains that user innovation is in the form of collaborative communities, wherein, they share technical advances with other user. The article also presents various analyses of preference and social norms that highlight the scientific interest in the same research questions.
In addition, it discusses the importance promotion of similar policies in different research tools by research funding agencies.
Recent controversies about the National Security Agency's warrantless wiretapping of international calls have overshadowed equally disturbing allegations that the government has acquired access to a huge database of domestic call traffic data, revealing information about times, dates, and numbers called. Although communication content traditionally has been the primary focus of concern about overreaching government surveillance, law enforcement officials are increasingly interested ha using sophisticated computer analysis of noncontent traffic data to "map" networks of associations.
Despite the rising importance of digitally mediated association, current Fourth Amendment and statutory schemes provide only weak checks on government. The potential to chill association through overreaching relational surveillance is great. This Article argues that the First Amendment's freedom of association guarantees can and do provide a proper framework for regulating relational surveillance and suggests how these guarantees might apply to particular forms of analysis of traffic data.
The authors develop an informal model of the impact of the nonobviousness standard on the choice of research projects. The nonobviousness standard serves as a stick to prod researchers to choose even more difficult projects. The results of the model help us understand why a fact-intensive issue like obviousness is a question of law.
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The model also helps us understand the optimal relationship between the nonobviousness standard and patentable subject-matter exclusions. Commentators often suggest subject-matter exclusions are unnecessary if the nonobviousness standard is used appropriately.
The authors' model suggests this intuition is wrong for inventions characterized by large social spillovers and high social costs of patenting; a simple subject-matter exclusion would be more efficient. User innovators range from commercial firms, which invent new production methods in expectation of competitive advantage, to individual hobbyists motivated entirely by their enjoyment of the inventive process. In this Article, I consider the implications for patent doctrine of the fact that many user innovators derive sufficient benefit simply from developing and using their inventions to motivate them to invest the effort necessary to invent them.
Moreover, user innovators often benefit from 'freely revealing' their innovations to others. Trade secrecy and patenting are not central to motivating this inventive activity. This picture of user innovation contrasts sharply with the seller innovator picture which dominates patent policy. Because user innovators have different incentives, we should consider modifying patent doctrine so as to avoid the social costs of unnecessarily broad protection in contexts in which user innovation predominates.
Privacy and Technologies of Identity: A Cross-Disciplinary Conversation
This Article lays out a framework for thinking about patent doctrine in the context of user innovation. It then explores one context in which user innovation plays a significant role - the development of inventions that can be used as research tools. Considering the specific incentives to invent, disclose, and disseminate research tools of different classes of research tool inventors leads to a proposal for a blanket exemption from infringement liability for research use.
The Article also proposes an alternative, more modest, 'double-edged sword' exemption, which would excuse non-commercial research use of all patented inventions and all research use of inventions made by non-profit inventors. Signature Financial Group Inc. For example, three Supreme Court justices recently have questioned State Street Bank's useful, concrete, and tangible result test for patentable subject matter. Many commentators have also debated the patenting of business methods, questioning whether patents are necessary to spark innovation in methods of doing business and whether exclusive rights to business methods are impediments to a competitive economy.
This short Symposium piece seeks to add a new dimension to this debate by pointing out that at least some business methods are part of a larger category of user innovation for which patent incentives are often relatively less important as a spur to innovation. By user innovation, I mean inventions made for the inventor's own use rather than for sale. In a recent article, I explored some of the implications of user innovation for patent doctrine, arguing that the distinct incentive structures involved in user and seller innovation may call for different treatment under the patent laws.
Here I argue that the prevalence of user innovation in the context of business methods makes it at least plausible that it would be socially beneficial to exempt business method use but not sale from infringement liability. A use exemption would have at least two potential advantages over a categorical subject matter rejection. First, it would mitigate the difficulty of defining business method patents based on the bare patent application by deferring that question to a specific infringement context. Second, a use exemption continues to protect inventors against competing sellers of business methods - e.
Focusing on user innovation leads to some distinctions between activities commonly lumped together under the rubric business methods. Some of what are commonly called business methods, including most notably those protected by the financial patents exemplified by the Hub and Spoke mutual fund of the State Street Bank case, may be more akin to new products than to methods of doing business. It may not make sense to exempt infringing purveyors of such intangible products from liability as users of the associated methods.
The article presents an overview on the evolution and structure of technical relationships between patents in the U. It argues that the legal scholars should engage on network science trend because it provides significant conceptual advances and analytical tools. It illustrates the application of a network approach to empirical data by identifying the result of a network science study of patent acknowledgement. Social norms that look askance at people when they disclose their own personal information in "inappropriate" situations are puzzling if one believes that the free flow of information promotes better decision-making.
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Privacy and technologies of identity : a cross-disciplinary conversation
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