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The FTC Takes On the DOJ in Schering-Plough

TOTM There is a very interesting development in the ongoing saga of the FTC v. Schering-Plough Corporation, a very important antitrust case involving a payment from . . .

There is a very interesting development in the ongoing saga of the FTC v. Schering-Plough Corporation, a very important antitrust case involving a payment from a branded pharmaceutical manufacturer to a generic to delay entry (a “reverse payment”).

Read the full piece here.

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Antitrust & Consumer Protection

MSM, Blogs, and George Mason’s “Other” Big News

TOTM It has been a fine month for George Mason University. The Final Four appearance has attracted a good deal of media attention and general buzz. . . .

It has been a fine month for George Mason University. The Final Four appearance has attracted a good deal of media attention and general buzz. This week, I received a record number of phone calls from friends about Mason (“No, I dont have any extra Final Four tickets.”). As great as this news is for the university community as a whole, GMU Law had an eventful March in its own right. For what it is worth, we moved up a few (4) spots in the US News Rankings to 37 (Brian Leiter thinks we are still underrated). But I want to write about what I found to be a very interesting series of events following reports that a GMU Law faculty member would be nominated to the Federal Circuit Court of Appeals.

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Intellectual Property & Licensing

Elementary and Persistent Errors in the Economic Analysis of Intellectual Property

Scholarship Abstract The literature on the economic analysis of intellectual property rights evidences a broad scholarly consensus on a number of central and important issues. First, . . .

Abstract

The literature on the economic analysis of intellectual property rights evidences a broad scholarly consensus on a number of central and important issues. First, intellectual property rights enable economic actors to capture some of the benefits of the investment they make in establishing a good reputation, creating expressive works, and inventing new and improved technology. Absent intellectual property rights, copiers are free to take for themselves a significant part of the economic benefit generated by these types of investment and to undermine the incentive to make these in- vestments in the first place. Second, the investment activities induced by intellectual property rights-developing a positive reputation with consumers, creating expressive works that consumers want to read, view, or hear, and developing improved technology- are efficient investments up to the point that consumers are willing to pay for their fruits. Third, a decentralized system of incentives such as that created by a system of intellectual property rights will over time produce results better preferred by consumers than will any kind of centrally directed subsidy system. Fourth, intellectual property rights systems have costs, costs involved in identifying, defining and enforcing the subject matter of the rights. Fifth, the intellectual property regimes of the United States, in particular, and of the developed economies are, as a general matter, economically sensible, no matter what particular details may concern a particular author. Even Justice Stephen Breyer, that once youthful Harvard skeptic, has said that the issue is not whether to have intellectual property rights, but what form they should take.

Scholars made considerable progress over the last century understanding the economics of intellectual property rights. Yet, much remains to be done. There is ample room for additional progress in the literature. Indeed, it seems likely that this progress will result in part from the work of the scholars who assembled for this conference.

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Intellectual Property & Licensing

Property Rights and Property Rules for Commercializing Inventions

Scholarship Abstract Several recent commentators have criticized trends in the patent system by suggesting that the goals of the system can be better achieved through a . . .

Abstract

Several recent commentators have criticized trends in the patent system by suggesting that the goals of the system can be better achieved through a variety of approaches that avoid or mitigate the monopoly-type impact of property rights. Suggested alternatives include the use of cash rewards, buy-outs, and liability rules, as distinct from property rules. This paper uses the important contributions made by these commentators to reveal shortcomings in any view of the patent system that focuses only on incentives to engage in inventive activity. The paper offers a new view of the patent system that embraces property rights and property rules as core elements of the patent system. According to this view, property treatment is essential for the subsequent commercialization activity that is necessary to get embodiments of nascent inventions into the hands of consumers and for efficiently identifying which inventions are worth the costs of government intervention in the first instance. The recently suggested alternatives fail to address these important goals of the patent system and would actually frustrate them. In addition, the current system already addresses many of the concerns raised by such commentary. The paper reveals how property rights and commercialization motivated the creation of our current patent system and explains many controversial trends in the system, including those that sparked the recent critical commentary, as well as those in other intellectual property regimes such as trademarks.

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Intellectual Property & Licensing