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TOTM Congratulations to Mike on a very fine book, which I must admit I am still in the process of digesting. I will confine my initial . . .
Congratulations to Mike on a very fine book, which I must admit I am still in the process of digesting. I will confine my initial comments to Mike’s chapter on patent settlements (Chapter 15), which I understand will also be coming out as an article in the Michigan Law Review.
Read the full piece here.
TOTM It is trite to say that “we are all Schumpeterians now.” When it comes to appreciating the importance of innovation and entrepreneurship, however, we are. . . .
It is trite to say that “we are all Schumpeterians now.” When it comes to appreciating the importance of innovation and entrepreneurship, however, we are. Schumpeter, unfortunately, did not leave a theory of innovation that lends itself to easy application to public policy prescriptions, as Brad De Long has explained so clearly. By so clearly highlighting the role that antitrust law and intellectual property policy can play in spurring innovation, Michael Carrier has done the field a great service. Indeed, Mike has written an impressive, ambitious, and important book. But in a post like this, I come not to praise him, but to take pot shots from the peanut gallery.
Scholarship Abstract When Michael Heller proposed that excessively fragmented property rights in land can frustrate its commercial development, patent scholars began debating whether Heller’s anticommons theory . . .
When Michael Heller proposed that excessively fragmented property rights in land can frustrate its commercial development, patent scholars began debating whether Heller’s anticommons theory applies to property rights in inventions. Do “patent thickets” exist? The rise and fall of the first American patent thicket — the Sewing Machine War of the 1850s — confirms that patent thickets do exist and that they can frustrate commercial development of new products. But this historical patent thicket also challenges the widely held assumption that this is a modern problem arising from allegedly new issues in the patent system, such as incremental high-tech innovation and the impact of “patent trolls.” The Sewing Machine War exhibited all of these phenomena, proving that these are hoary issues in patent law. The denouement of this patent thicket in the Sewing Machine Combination of 1856, the first privately formed patent pool, further challenges the conventional wisdom that patent thickets are best solved through public-ordering regimes that limit property rights in patents. The invention and incredible commercial success of the sewing machine is a striking account of early American technological, commercial, and legal ingenuity, which heralds important empirical lessons for how patent thicket theory is understood and applied today.
TOTM As TOTM readers are likely to know, the Supreme Court denied certiorari in Rambus, a course of action I had argued was the appropriate response . . .
As TOTM readers are likely to know, the Supreme Court denied certiorari in Rambus, a course of action I had argued was the appropriate response to the arguments set forth in the Commission petition. I recently expanded the blog post into a short essay which I’ve posted on SSRN. It will also be available in a few weeks at Global Competition Policy.
TOTM As noted, the FTC has exercised its right under 15 USC 56(a)(3) to petition for a writ of certiorari to review the judgment of the . . .
As noted, the FTC has exercised its right under 15 USC 56(a)(3) to petition for a writ of certiorari to review the judgment of the D.C. Circuit in its FTC v. Rambus. The FTC press release is here. The petition is here. The questions presented, as framed by the Commission are…
TOTM The Federal Circuit came down on the side of rule of reason analysis, and no liability, in a reverse payment case in Cipro (HT: Antitrust . . .
The Federal Circuit came down on the side of rule of reason analysis, and no liability, in a reverse payment case in Cipro (HT: Antitrust Review and Patently-O)…
TOTM Global Competition Policy has a trio of interesting articles on the DOJ Section 2 Report, and FTC response, which I’ve blogged about here and here . . .
Global Competition Policy has a trio of interesting articles on the DOJ Section 2 Report, and FTC response, which I’ve blogged about here and here from Tim Brennan, William Kolasky and Mark Popofsky. The abstract from Popofsky’s article gives a sense of the scope and importance of the issues here…
Scholarship Abstract The Supreme Court’s unanimous decision in Quanta v. LG Electronics may make it significantly more difficult to structure transactions involving patents. While this decision . . .
The Supreme Court’s unanimous decision in Quanta v. LG Electronics may make it significantly more difficult to structure transactions involving patents. While this decision does make a group of players into winners in the immediate term for existing patent deals (this group includes any customer who, like Quanta, buys patented parts without buying a patent license), almost everyone is likely to come out a loser going forward.
The Court in Quanta decided that a patent license that LG Electronics sold only to Intel – and explicitly limited to exclude Intel’s customers, like Quanta, and priced to reflect these modest ambitions – would be treated by the Court as extending permission under the patent to those Intel customers. The legal “hook” on which the Court hung its decision is the patent law doctrine called “first sale” or “exhaustion.”
The Quanta decision is likely to have a serious negative effect on the nuts and bolts of patent licensing agreements. On one reading, it stands for little more than the unremarkable proposition that the actual patent license contract at issue was just badly written. But that would be a simple matter of applying state contract law to the underlying facts of the contract – not the type of issue that typically gains the Supreme Court’s attention. So the real motivating force behind the Court’s decision to take the case is probably something else. The extensive briefing and commentary, as well as the opinion’s colorful dicta, all suggest that the true import of the case is the way it speaks about what patent contracting can be done – as a matter of Court-created policy for federal patent law.
If this view of Quanta is correct, then the decision may be remarkably important in several respects. It may greatly frustrate the ability of commercial parties to strike deals over patents. It may also stand as an example of a seemingly conservative Court acting in direct contravention of clear congressional action.
TOTM The public comment period has closed and the N-Data settlement has been approved by a vote of 3-1 with Chairman Kovacic voting against (his earlier . . .
The public comment period has closed and the N-Data settlement has been approved by a vote of 3-1 with Chairman Kovacic voting against (his earlier dissent is here). I think is a sleeper candidate for one of the most important antitrust events of the year as it potentially signals a remarkable expansion of the Commission’s Section 5 Act. You can read the public comments on N-Data here.
