I document a previously unexplored substantial cost of initial public offerings (IPOs): patent lawsuits. I find that firms become targets of excessive patent lawsuits shortly before IPO completions, and the litigation intensity persists after firms become public. However, firms that withdraw their IPO filings do not experience an increase after the withdrawal date. Unlike an IPO, being acquired leads to a decrease in lawsuits. Overall, these results show that going public makes firms perilously vulnerable to litigation. The cost is gaining importance as the percentage of IPO firms affected by patent lawsuits has been surging in the last two decades.
{"title":"An IPO Pitfall: Patent Lawsuits","authors":"Tolga Caskurlu","doi":"10.2139/ssrn.3116183","DOIUrl":"https://doi.org/10.2139/ssrn.3116183","url":null,"abstract":"I document a previously unexplored substantial cost of initial public offerings (IPOs): patent lawsuits. I find that firms become targets of excessive patent lawsuits shortly before IPO completions, and the litigation intensity persists after firms become public. However, firms that withdraw their IPO filings do not experience an increase after the withdrawal date. Unlike an IPO, being acquired leads to a decrease in lawsuits. Overall, these results show that going public makes firms perilously vulnerable to litigation. The cost is gaining importance as the percentage of IPO firms affected by patent lawsuits has been surging in the last two decades.","PeriodicalId":337989,"journal":{"name":"IRPN: Innovation & Patent Law & Policy (Sub-Topic)","volume":"154 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122938330","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2019-09-16DOI: 10.36645/MTLR.26.1.PATENTS
Toshiko Takenaka
Spurred by the Internet, emerging technologies have changed the way commercial firms innovate and have made it possible for individuals to play an important role in that innovation. Producers in the Information Communication Technologies (ICT), and other sectors dealing with complex technologies with many separately patentable components, find it increasingly difficult to make products without infringing on patents held by others. Numerous overlapping patents often cover such products. Producers have developed a new way to use patents: as inclusive rights for sharing their technologies with others through cross-licensing and other private ordering arrangements in order to ensure the freedom to operate and innovate. Individual innovators, and open source software (“OSS”) programmers in particular, have also developed a new use of copyrights: using them to share their technologies through OSS licenses. Producers of complex technologies use patents for sharing their technologies with OSS programmers and for protecting themselves from patent assertion. In light of these recent uses, this article proposes a new utilitarian theory for patents: patents as the incentive to share, with the reward of increasing the freedom to operate and innovate. It argues that both the ex ante and ex post incentive to invent theories are outdated because they fail to take into account the patent owners’ lack of control over their products in complex technology sectors. This article urges Congress to reevaluate U.S. patent rights in light of this new patent use. It reviews U.S. patents as property rights from the comparative law perspective and proposes the revitalization of the inclusive side of U.S. patents by introducing a compulsory license for blocking patents. It also proposes that the exclusive side of patent rights should be limited to private and experimental use exceptions to ensure the freedom to operate and innovate by sharing.
{"title":"Patents for Sharing","authors":"Toshiko Takenaka","doi":"10.36645/MTLR.26.1.PATENTS","DOIUrl":"https://doi.org/10.36645/MTLR.26.1.PATENTS","url":null,"abstract":"Spurred by the Internet, emerging technologies have changed the way commercial firms innovate and have made it possible for individuals to play an important role in that innovation. Producers in the Information Communication Technologies (ICT), and other sectors dealing with complex technologies with many separately patentable components, find it increasingly difficult to make products without infringing on patents held by others. Numerous overlapping patents often cover such products. Producers have developed a new way to use patents: as inclusive rights for sharing their technologies with others through cross-licensing and other private ordering arrangements in order to ensure the freedom to operate and innovate. Individual innovators, and open source software (“OSS”) programmers in particular, have also developed a new use of copyrights: using them to share their technologies through OSS licenses. Producers of complex technologies use patents for sharing their technologies with OSS programmers and for protecting themselves from patent assertion. In light of these recent uses, this article proposes a new utilitarian theory for patents: patents as the incentive to share, with the reward of increasing the freedom to operate and innovate. It argues that both the ex ante and ex post incentive to invent theories are outdated because they fail to take into account the patent owners’ lack of control over their products in complex technology sectors. This article urges Congress to reevaluate U.S. patent rights in light of this new patent use. It reviews U.S. patents as property rights from the comparative law perspective and proposes the revitalization of the inclusive side of U.S. patents by introducing a compulsory license for blocking patents. It also proposes that the exclusive side of patent rights should be limited to private and experimental use exceptions to ensure the freedom to operate and innovate by sharing.","PeriodicalId":337989,"journal":{"name":"IRPN: Innovation & Patent Law & Policy (Sub-Topic)","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122009238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The patent system features a centralized structure almost from end to end. The United States Patent and Trademark Office (PTO) possesses power to examine inventions, publish patents, and increasingly manage post-examination proceedings. The centralized nature of the patent system leads to well-known inefficiencies, including production problems, low quality patents, and information inefficiencies. Yet, despite intense criticism, and even proposals to ‘demonopolize’ the agency, the PTO’s dominance persists, and has in fact increased with the recent enactment of the America Invents Act (AIA). This Article considers an alternative, decentralized, patent system. Harnessing new developments in database technology, I propose that inventors would submit patent applications to a shared patent record instead of to the PTO. After a grace period, in which inventions would remain secret, the record would open to the public and the patent examination process would ensue. Following the examination, granted patents would be published to the record. During the examination process and throughout the lifetime of the patent, industry and state actors would be able to dynamically update the record. For example, third parties would be able to submit prior art, scientists — to weigh in on obviousness, patentees — to offer licenses, and courts — to list decisions and outstanding cases that pertain to the patent. A decentralized patent model fosters a participatory and dynamic patent record and promises to transform the record into a central tool in the innovation economy. This strategy would yield several key benefits. First, it would boost the quality of patent examination and improve productivity, by allowing knowledgeable parties to shoulder some of the tasks that examiners now perform alone. Second, it would spur innovation by advancing information on new inventions, and reduce waste by preventing a race for patents that have already been filed. Third, it would allow inventors to avoid innocently infringing patents that are strategically held by ‘patent trolls,’ tackling one of the most troubling issues in patent law. Finally, decentralization would facilitate patent licensing, thus driving the adoption of new inventions in the market. Improved licensing forecasts would also produce a dynamic effect: increasing the potential reward of patents ex post, thus boosting the incentive to invent ex ante.
{"title":"Decentralized Patent System","authors":"L. Helman","doi":"10.2139/ssrn.3447066","DOIUrl":"https://doi.org/10.2139/ssrn.3447066","url":null,"abstract":"The patent system features a centralized structure almost from end to end. The United States Patent and Trademark Office (PTO) possesses power to examine inventions, publish patents, and increasingly manage post-examination proceedings. The centralized nature of the patent system leads to well-known inefficiencies, including production problems, low quality patents, and information inefficiencies. Yet, despite intense criticism, and even proposals to ‘demonopolize’ the agency, the PTO’s dominance persists, and has in fact increased with the recent enactment of the America Invents Act (AIA). \u0000 \u0000This Article considers an alternative, decentralized, patent system. Harnessing new developments in database technology, I propose that inventors would submit patent applications to a shared patent record instead of to the PTO. After a grace period, in which inventions would remain secret, the record would open to the public and the patent examination process would ensue. Following the examination, granted patents would be published to the record. During the examination process and throughout the lifetime of the patent, industry and state actors would be able to dynamically update the record. For example, third parties would be able to submit prior art, scientists — to weigh in on obviousness, patentees — to offer licenses, and courts — to list decisions and outstanding cases that pertain to the patent. \u0000 \u0000A decentralized patent model fosters a participatory and dynamic patent record and promises to transform the record into a central tool in the innovation economy. This strategy would yield several key benefits. First, it would boost the quality of patent examination and improve productivity, by allowing knowledgeable parties to shoulder some of the tasks that examiners now perform alone. Second, it would spur innovation by advancing information on new inventions, and reduce waste by preventing a race for patents that have already been filed. Third, it would allow inventors to avoid innocently infringing patents that are strategically held by ‘patent trolls,’ tackling one of the most troubling issues in patent law. Finally, decentralization would facilitate patent licensing, thus driving the adoption of new inventions in the market. Improved licensing forecasts would also produce a dynamic effect: increasing the potential reward of patents ex post, thus boosting the incentive to invent ex ante.","PeriodicalId":337989,"journal":{"name":"IRPN: Innovation & Patent Law & Policy (Sub-Topic)","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-09-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125131934","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For competing firms, a patent settlement provides a rare opportunity to write an agreement that forestalls competition without transparently violating the antitrust laws. Problematically, such agreements are highly profitable for reasons that have nothing to do with resolving a patent dispute. Thus, even if the firms think the patent is very likely invalid or noninfringed, they prefer to restrain competition to monopoly and share in the proceeds. In response, antitrust has recently come to focus on how the settlement’s competitive effects compare to the expected result of foregone patent litigation, which seemingly requires some assessment of the likelihood that the patentee would have prevailed. But this “case-within-a-case” approach leads to major complications in practice. Indeed, outside of one well-known settlement format—so-called “pay-for-delay” agreements—how to administer this burgeoning antitrust standard remains an open question. Applying recent work in economics, this article argues that antitrust law should reframe its settlement analysis to focus entirely on the nature of the settlement agreement—the particular way it restrains competition or otherwise redistributes profits between the firms. That is because the settlement’s design is ultimately what determines how private bargaining outcomes will compare to the firms’ litigation expectations. Under this approach, the antitrust question can be addressed without inquiring into the likelihood that any particular patent is valid and infringed, making it much more administrable. Instead, the focus is on how the settlement design affects private bargaining generally. This disentangles the relevant antitrust violation from the extent of the resulting harm, and can be applied to all kinds of settlement agreements. Finally, this approach is broadly consistent with the Supreme Court’s recent Actavis decision. All of this points to a clear prescription for antitrust reform: evaluate the agreement, not the patent.
{"title":"Antitrust Law and Patent Settlement Design","authors":"Erik N. Hovenkamp","doi":"10.2139/ssrn.3219954","DOIUrl":"https://doi.org/10.2139/ssrn.3219954","url":null,"abstract":"For competing firms, a patent settlement provides a rare opportunity to write an agreement that forestalls competition without transparently violating the antitrust laws. Problematically, such agreements are highly profitable for reasons that have nothing to do with resolving a patent dispute. Thus, even if the firms think the patent is very likely invalid or noninfringed, they prefer to restrain competition to monopoly and share in the proceeds. In response, antitrust has recently come to focus on how the settlement’s competitive effects compare to the expected result of foregone patent litigation, which seemingly requires some assessment of the likelihood that the patentee would have prevailed. But this “case-within-a-case” approach leads to major complications in practice. Indeed, outside of one well-known settlement format—so-called “pay-for-delay” agreements—how to administer this burgeoning antitrust standard remains an open question. \u0000Applying recent work in economics, this article argues that antitrust law should reframe its settlement analysis to focus entirely on the nature of the settlement agreement—the particular way it restrains competition or otherwise redistributes profits between the firms. That is because the settlement’s design is ultimately what determines how private bargaining outcomes will compare to the firms’ litigation expectations. Under this approach, the antitrust question can be addressed without inquiring into the likelihood that any particular patent is valid and infringed, making it much more administrable. Instead, the focus is on how the settlement design affects private bargaining generally. This disentangles the relevant antitrust violation from the extent of the resulting harm, and can be applied to all kinds of settlement agreements. Finally, this approach is broadly consistent with the Supreme Court’s recent Actavis decision. All of this points to a clear prescription for antitrust reform: evaluate the agreement, not the patent.","PeriodicalId":337989,"journal":{"name":"IRPN: Innovation & Patent Law & Policy (Sub-Topic)","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126671946","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Federico Caviggioli, Giuseppe Scellato, E. Ughetto
In this paper, the practice of using patents as collateral for debt has been studied. To this aim, the USPTO Patent Assignment database has been used and all the patents that reported the “security interest agreement” type of conveyance, registered in the 2007-2010 years, have been extracted. The final dataset is made up of a total of 8,818 security interest agreement records, in which 133,110 patents are pledged as collateral for debt. Nearly 70% of the patents are associated with a subsequent release of security interest, over the 2007 and 2015 period. The determinants that affect the likelihood and the timing of a patent being released have been investigated. In particular, we focus on the effects of the global financial crisis and the interplay between the financial intermediary types involved in the collateralization event. Survival models have been applied and the hazard rates on the likelihood of observing a release of a security interest have been estimated. The obtained results suggest that a security interest on a patent is more likely to be released in the case of granted and younger pledged patents, when firms that pledge patents as collateral are larger, and lenders are more experienced in handling intellectual property (IP) backed transactions. Moreover, all else being equal, a release is more likely to occur for patents with higher technical merit, as captured by forward citations. On average, after the beginning of the global financial crisis, a decrease in the probability of release of a security interest is observed. This effect is smoothed for larger firms and for deals involving banks, as opposed to specialty finance intermediaries. This evidence has been discussed in light of the literature on secured lending and the financing of innovative companies.
{"title":"Patents as Collateral Assets in the Wake of the Global Financial Crisis","authors":"Federico Caviggioli, Giuseppe Scellato, E. Ughetto","doi":"10.2139/ssrn.3060689","DOIUrl":"https://doi.org/10.2139/ssrn.3060689","url":null,"abstract":"In this paper, the practice of using patents as collateral for debt has been studied. To this aim, the USPTO Patent Assignment database has been used and all the patents that reported the “security interest agreement” type of conveyance, registered in the 2007-2010 years, have been extracted. The final dataset is made up of a total of 8,818 security interest agreement records, in which 133,110 patents are pledged as collateral for debt. Nearly 70% of the patents are associated with a subsequent release of security interest, over the 2007 and 2015 period. The determinants that affect the likelihood and the timing of a patent being released have been investigated. In particular, we focus on the effects of the global financial crisis and the interplay between the financial intermediary types involved in the collateralization event. Survival models have been applied and the hazard rates on the likelihood of observing a release of a security interest have been estimated. The obtained results suggest that a security interest on a patent is more likely to be released in the case of granted and younger pledged patents, when firms that pledge patents as collateral are larger, and lenders are more experienced in handling intellectual property (IP) backed transactions. Moreover, all else being equal, a release is more likely to occur for patents with higher technical merit, as captured by forward citations. On average, after the beginning of the global financial crisis, a decrease in the probability of release of a security interest is observed. This effect is smoothed for larger firms and for deals involving banks, as opposed to specialty finance intermediaries. This evidence has been discussed in light of the literature on secured lending and the financing of innovative companies.","PeriodicalId":337989,"journal":{"name":"IRPN: Innovation & Patent Law & Policy (Sub-Topic)","volume":"87 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-10-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116373323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Utility models are useful and alternative tools to protect some technical innovations: methods, processes and compositions are excluded. It’s cheap and easy to get a grant of a utility model in Italy: no substantive examination and a lower standard of inventiveness are required. The inventive step refers to the capability of the three-dimensional form to confer an object or a device a specific efficacy or an ease of use. A utility model protection is attractive for small and medium-sized enterprises and universities as it costs around 40 percent of the cost of a patent for invention.
{"title":"Utility Models in the Italian Patent System","authors":"Massimo Barbieri","doi":"10.2139/ssrn.3022432","DOIUrl":"https://doi.org/10.2139/ssrn.3022432","url":null,"abstract":"Utility models are useful and alternative tools to protect some technical innovations: methods, processes and compositions are excluded. It’s cheap and easy to get a grant of a utility model in Italy: no substantive examination and a lower standard of inventiveness are required. The inventive step refers to the capability of the three-dimensional form to confer an object or a device a specific efficacy or an ease of use. A utility model protection is attractive for small and medium-sized enterprises and universities as it costs around 40 percent of the cost of a patent for invention.","PeriodicalId":337989,"journal":{"name":"IRPN: Innovation & Patent Law & Policy (Sub-Topic)","volume":"44 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-08-19","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125612648","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
It is widely argued that international extension of the patent system hinders innovation and growth in developing countries by restricting access to technological inputs. I re-examine the connection between patents, innovation and development by assessing the extent to which the U.S. patent regime supports R&D investment by firms in certain emerging market countries. Based on USPTO data covering all utility patents issued to U.S. and foreign inventors (a total of 6,122,217 patents issued to inventors resident in 188 countries and territories) during 1965-2015, and supplemented by additional data sources, I argue that the U.S. patent system has supported innovation in a cluster of foreign countries that have developed rapidly and dramatically since the 1980s. The increase in the proportion of foreign (and especially, East Asian) innovators in the USPTO patentee population is so large that it accounts for much of the significant increase in USPTO patent issuance that has commonly been attributed to policy changes by U.S. courts and the USPTO. Within this expanded foreign patentee population, three smaller and late-developing countries are now (together with Japan) the most intensive foreign users of the U.S. patent system on a per-capita and per-GDP basis: Israel, South Korea and Taiwan. Based on entity type, industry type and other salient characteristics of the leading “first-named” assignees of USPTO patents in Israel and Taiwan during 2000-2015, and supplemented by other evidence relating to these countries’ innovation capacities and performance, I argue that these countries rely on USPTO patents to extract value from their R&D investments by supplying product or process inputs to the global value chains that connect innovation sources with commercialization sources on the pathway to target consumption markets. While prior work has presented evidence that patents sometimes promote entry into technology markets by upstream R&D firms that lack downstream production and distribution capacities, this paper extends that rationale and presents evidence that patents can promote entry into technology markets by economies that are rich in intellectual and human capital but have small domestic markets in which to extract returns on that capital. For those countries, the patent system (or at least the U.S. patent system) is an aid, not a hindrance, to development.
{"title":"Patent Tigers: The New Geography of Global Innovation","authors":"Jonathan M. Barnett","doi":"10.2139/ssrn.2842350","DOIUrl":"https://doi.org/10.2139/ssrn.2842350","url":null,"abstract":"It is widely argued that international extension of the patent system hinders innovation and growth in developing countries by restricting access to technological inputs. I re-examine the connection between patents, innovation and development by assessing the extent to which the U.S. patent regime supports R&D investment by firms in certain emerging market countries. Based on USPTO data covering all utility patents issued to U.S. and foreign inventors (a total of 6,122,217 patents issued to inventors resident in 188 countries and territories) during 1965-2015, and supplemented by additional data sources, I argue that the U.S. patent system has supported innovation in a cluster of foreign countries that have developed rapidly and dramatically since the 1980s. The increase in the proportion of foreign (and especially, East Asian) innovators in the USPTO patentee population is so large that it accounts for much of the significant increase in USPTO patent issuance that has commonly been attributed to policy changes by U.S. courts and the USPTO. Within this expanded foreign patentee population, three smaller and late-developing countries are now (together with Japan) the most intensive foreign users of the U.S. patent system on a per-capita and per-GDP basis: Israel, South Korea and Taiwan. Based on entity type, industry type and other salient characteristics of the leading “first-named” assignees of USPTO patents in Israel and Taiwan during 2000-2015, and supplemented by other evidence relating to these countries’ innovation capacities and performance, I argue that these countries rely on USPTO patents to extract value from their R&D investments by supplying product or process inputs to the global value chains that connect innovation sources with commercialization sources on the pathway to target consumption markets. While prior work has presented evidence that patents sometimes promote entry into technology markets by upstream R&D firms that lack downstream production and distribution capacities, this paper extends that rationale and presents evidence that patents can promote entry into technology markets by economies that are rich in intellectual and human capital but have small domestic markets in which to extract returns on that capital. For those countries, the patent system (or at least the U.S. patent system) is an aid, not a hindrance, to development.","PeriodicalId":337989,"journal":{"name":"IRPN: Innovation & Patent Law & Policy (Sub-Topic)","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130989851","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
For some time patent law has been criticized for a flood of bad patents. Patents of questionable validity are being issued with broad often-nebulous boundaries. A majority of the blame for these bad patents has fallen on the shoulders of the Patent and Trademark Office (PTO). Bad patents exist, so the argument goes, because the PTO has improperly issued them. In response the PTO has launched a major initiative to improve patent quality. Our singular focus on the PTO though threatens to overlook the other major player responsible for patent quality – patent applicants. Currently patent applicants are not seen as having any particular duty to seek only good patents. Today applicants can seek excessively broad claims if they want to. It is the PTO’s job to police against such excessive claims. This article shows this prevalent practice of overclaiming is dangerously mistaken. Though not generally appreciated, the patent statute includes powerful features that put a significant duty on applicants and their patent attorneys to file only properly sized patent claims. As shown, applicants have a duty to file claims that do not exceed their invention. And though it likely comes as a surprise to much of the patent bar, that duty is enforced by criminal sanctions. Simply put, willful overclaiming is criminal; it is a felony.
{"title":"Overclaiming is Criminal","authors":"O. Liivak","doi":"10.2139/SSRN.2836165","DOIUrl":"https://doi.org/10.2139/SSRN.2836165","url":null,"abstract":"For some time patent law has been criticized for a flood of bad patents. Patents of questionable validity are being issued with broad often-nebulous boundaries. A majority of the blame for these bad patents has fallen on the shoulders of the Patent and Trademark Office (PTO). Bad patents exist, so the argument goes, because the PTO has improperly issued them. In response the PTO has launched a major initiative to improve patent quality. Our singular focus on the PTO though threatens to overlook the other major player responsible for patent quality – patent applicants. Currently patent applicants are not seen as having any particular duty to seek only good patents. Today applicants can seek excessively broad claims if they want to. It is the PTO’s job to police against such excessive claims. This article shows this prevalent practice of overclaiming is dangerously mistaken. Though not generally appreciated, the patent statute includes powerful features that put a significant duty on applicants and their patent attorneys to file only properly sized patent claims. As shown, applicants have a duty to file claims that do not exceed their invention. And though it likely comes as a surprise to much of the patent bar, that duty is enforced by criminal sanctions. Simply put, willful overclaiming is criminal; it is a felony.","PeriodicalId":337989,"journal":{"name":"IRPN: Innovation & Patent Law & Policy (Sub-Topic)","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116582362","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
English Abstract: In industrial sectors and divisions characterized by a strict interdependence, and rapid, sudden and drastic evolutions – such as the Mobile, Web, Smart Grids, Pharmaceutics, Bio and Agro technologies sectors etc. – there has been an exponential increase in the number of patents and standards. Patents are often registered purely for defensive purposes, with the excessive expansion and inflation of industrial property titles often being adjacent, overlapping and intersecting. This in turn results in serious and relevant diseconomies of the system, an exponential increase in Royalties, and overall a condition of dangerous uncertainty, both juridical and psychological. The abnormal proliferation of industrial property rights is even matched by the preservation of dominant positions and the existence of essentially autocratic and self-referential systems, free of effective exchanges, which objectively contribute to determining short or medium-term cyclical diseconomies, recessive and regressive decisions, or at least substantial market stagnations.The system’s crisis seems indeed much more constrained and recurrent in the presence of industrial segments that are evolving and advancing in the absence of effective forms of regulation.This requires to imagine new forms of cooperation between industrial property rights, which, among their strategical objectives, aim first to improve the dissemination of industrial products and the fair compensation that should be recognized for research and innovation, and secondly, the need to prevent recurrent and various market “crises” and cyclic diseconomies.In the current phase, and due to the current situation, the cooperative and organizational models in the industrial property sectors still lack a stable and reliable theoretical arrangement and have succumbed to many failures. Therefore, it seems appropriate to ask: a) Whether this is a crisis of traditional classification models and classic industrial property categories, and of their objective unsuitability to the various and changeable realities; b) If the classic categories, which at this stage enable the excessive expansion and dysfunctions mentioned above, do not represent an obstacle to the rapidly innovating industrial segments; and c) If these are no longer unsuitable to the market reality and to the varying and evolving forms of highly innovative industrial segments, which require new and innovative forms and instruments and contractual relations.Therefore, this paper addresses the question, that remains without proper answers, of which are the most suitable models of governance to manage these phenomena, first by tackling the issue, in the “patent pools” of information asymmetries, in conflicts of interest, and in the most rational incentive forms to trigger cooperative models, which, if realized, would represent new models of development. The benefits that could come from cooperation and inclusion systems, in addition to encouraging
{"title":"Ideas on Patent Pools as a New Model of Development","authors":"F. Paola","doi":"10.2139/ssrn.2778177","DOIUrl":"https://doi.org/10.2139/ssrn.2778177","url":null,"abstract":"English Abstract: In industrial sectors and divisions characterized by a strict interdependence, and rapid, sudden and drastic evolutions – such as the Mobile, Web, Smart Grids, Pharmaceutics, Bio and Agro technologies sectors etc. – there has been an exponential increase in the number of patents and standards. Patents are often registered purely for defensive purposes, with the excessive expansion and inflation of industrial property titles often being adjacent, overlapping and intersecting. This in turn results in serious and relevant diseconomies of the system, an exponential increase in Royalties, and overall a condition of dangerous uncertainty, both juridical and psychological. The abnormal proliferation of industrial property rights is even matched by the preservation of dominant positions and the existence of essentially autocratic and self-referential systems, free of effective exchanges, which objectively contribute to determining short or medium-term cyclical diseconomies, recessive and regressive decisions, or at least substantial market stagnations.The system’s crisis seems indeed much more constrained and recurrent in the presence of industrial segments that are evolving and advancing in the absence of effective forms of regulation.This requires to imagine new forms of cooperation between industrial property rights, which, among their strategical objectives, aim first to improve the dissemination of industrial products and the fair compensation that should be recognized for research and innovation, and secondly, the need to prevent recurrent and various market “crises” and cyclic diseconomies.In the current phase, and due to the current situation, the cooperative and organizational models in the industrial property sectors still lack a stable and reliable theoretical arrangement and have succumbed to many failures. Therefore, it seems appropriate to ask: a) Whether this is a crisis of traditional classification models and classic industrial property categories, and of their objective unsuitability to the various and changeable realities; b) If the classic categories, which at this stage enable the excessive expansion and dysfunctions mentioned above, do not represent an obstacle to the rapidly innovating industrial segments; and c) If these are no longer unsuitable to the market reality and to the varying and evolving forms of highly innovative industrial segments, which require new and innovative forms and instruments and contractual relations.Therefore, this paper addresses the question, that remains without proper answers, of which are the most suitable models of governance to manage these phenomena, first by tackling the issue, in the “patent pools” of information asymmetries, in conflicts of interest, and in the most rational incentive forms to trigger cooperative models, which, if realized, would represent new models of development. The benefits that could come from cooperation and inclusion systems, in addition to encouraging","PeriodicalId":337989,"journal":{"name":"IRPN: Innovation & Patent Law & Policy (Sub-Topic)","volume":"122 3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-05-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133289520","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 2015-12-21DOI: 10.1108/JIC-07-2015-0062
T. Andreeva, T. Garanina
Purpose – Intellectual capital (IC) has been argued to be the key element of value creation in contemporary economies and this argument has been widely supported by empirical research, but mainly based on data from developed markets. The question of how IC and its elements work in other contexts remains under-researched and the limited empirical evidence that exists contradicts the conclusions drawn from developed countries. The purpose of this paper is to provide empirical insight into the relationship between three main elements of IC (human, relational and structural) and organizational performance in the particular context of Russian manufacturing companies. Design/methodology/approach – The sample comprises 240 Russian manufacturing companies. The data are collected by survey using the scales already validated in the international context. The authors use a two-step analysis – factor and regression analyses – to answer the research questions. Findings – The findings demonstrate that structural and hu...
{"title":"Do All Elements of Intellectual Capital Matter for Organizational Performance? Evidence From Russian Context","authors":"T. Andreeva, T. Garanina","doi":"10.1108/JIC-07-2015-0062","DOIUrl":"https://doi.org/10.1108/JIC-07-2015-0062","url":null,"abstract":"Purpose – Intellectual capital (IC) has been argued to be the key element of value creation in contemporary economies and this argument has been widely supported by empirical research, but mainly based on data from developed markets. The question of how IC and its elements work in other contexts remains under-researched and the limited empirical evidence that exists contradicts the conclusions drawn from developed countries. The purpose of this paper is to provide empirical insight into the relationship between three main elements of IC (human, relational and structural) and organizational performance in the particular context of Russian manufacturing companies. Design/methodology/approach – The sample comprises 240 Russian manufacturing companies. The data are collected by survey using the scales already validated in the international context. The authors use a two-step analysis – factor and regression analyses – to answer the research questions. Findings – The findings demonstrate that structural and hu...","PeriodicalId":337989,"journal":{"name":"IRPN: Innovation & Patent Law & Policy (Sub-Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-12-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130276826","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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