Volume 87: Issue 5 · June 2009

Frontiers in Empirical Patent Law Scholarship

By Andrew Chin

Recent proposals to amend the Patent Act and the legal academy’s growing interest in empirical methods have made the policy analysis of patent law a timely topic for colloquia and symposia. Empirical scholarship plays a vital role in these discussions, as it tests the theories, hypotheses, and characterizations that underlie legal rules and institutions, as well as proposals for their reform Patent scholars tend to have backgrounds and interests that… READ MORE

87 N.C. L. Rev. 1321 (2009)

Keynote Address

By Hon. S. Jay Plager

In thinking about the range of issues we confront in empirical legal research, including research into patent law and policy, it is well to begin with fundamentals.  There are three inquiries that define what scholarship into the human condition cares about—knowledge, conduct, and governance.  Typically, scholarship regarding patent law and policy is concerned with conduct—who has the right, and under what circumstances, to make, use, or sell an invention that… READ MORE

87 N.C. L. Rev. 1323 (2009)

The Political Economy of the Patent System

By Jay P. Kesan & Andres A. Gallo

In recent years, many reform proposals have been presented in Congress for changing the patent system in the United States.  Most of these proposals have been normative in nature and based on overcoming the many perceived shortcomings of the United States Patent and Trademark Office’s (“Patent Office”) performance.  Nonetheless, actual legislative reforms have failed to materialize. In this Article, we claim that in order to understand the chances of success… READ MORE

87 N.C. L. Rev. 1341 (2009)

Copying in Patent Law

By Christopher A. Cotropia & Mark A. Lemley

Patent law is virtually alone in intellectual property (IP) in punishing independent development.  To infringe a copyright or trade secret, defendants must copy the protected IP from the plaintiff, directly or indirectly.  But patent infringement requires only that the defendant’s product falls within the scope of the patent claims.  Not only doesn’t the defendant need to intend to infringe, but the defendant may be entirely unaware of the patent or… READ MORE

87 N.C. L. Rev. 1421 (2009)

Patents and Growth: Empirical Evidence From the States

By Glynn S. Lunney, Jr.

In the Uruguay Round, negotiators for the United States persuaded its trading partners to incorporate uniform minimum standards for the protection of intellectual property rights (“IPRs”) directly into the General Agreement on Tariffs and Trade.  Although individual countries may adopt higher standards for protection, the agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPs”) imposed on all countries the fairly high standards of protection then existing in only a… READ MORE

87 N.C. L. Rev. 1467 (2009)

University Software Ownership and Litigation: A First Examination

By Arti K. Rai, John R. Allison & Bhaven N. Sampat

Software patents and university-owned patents represent two of the most controversial intellectual property developments of the last twenty-five years.  Despite this reality, and concerns that universities act as “patent trolls” when they assert software patents in litigation against successful commercializers, no scholar has systematically examined the ownership and litigation of university software patents.  In this Article, we present the first such examination.  Our empirical research reveals that software patents represent… READ MORE

87 N.C. L. Rev. 1519 (2009)

Of Trolls, Davids, Goliaths, and Kings: Narratives and Evidence in the Litigation of High-Tech Patents

By Colleen V. Chien

While each patent dispute is unique, most fit the profile of one of a limited number of patent litigation stories.  A dispute between an independent inventor and a large company, for instance, is often cast in “David v. Goliath” terms.  When two large companies fight over patents, in contrast, they are said to be playing the “sport of kings.”  Some corporations engage in “defensive patenting” in order to deter others… READ MORE

87 N.C. L. Rev. 1571 (2009)

Search for Tomorrow: Some Side Effects of Patent Office Automation

By Andrew Chin

The United States Patent and Trademark Office’s (“Patent Office”) move to a paperless search facility and the public’s growing involvement in prior art search have recently elevated the role of search engine technology in the patent examination process.  This Article reports on an empirical study that examines how this technology has systematically changed not only how patent references are found, but also which patents are cited as prior art. Publicly… READ MORE

87 N.C. L. Rev. 1617 (2009)

Patent Citation Networks Revisited: Signs of a Twenty-First Century Change

By Katherine J. Strandburg, Gábor Csárdi, Jan Tobochnik & Péter Érdi & László Zalányi

This Article reports an empirical study of the network composed of patent “nodes” and citation “links” between them.  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… READ MORE

87 N.C. L. Rev. 1657 (2009)