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Keith E. Maskus

This chapter reviews evidence regarding several of the most important relationships between intellectual property rights (IPRs) and economic development. Theoretical analysis generally yields ambiguous predictions, while empirical analysis suffers from the lack of data on key questions. Nonetheless, several interesting findings are discussed. First recent research suggests that patent reforms can expand innovation in emerging countries with sound facilitating conditions. Second, patent reforms in emerging countries have attracted significantly higher inward flows of technology and encouraged the development of export sectors. However, such processes are absent in the poorest countries. Third, simulation models suggest that new patent regimes could raise pharmaceutical prices in developing countries. Recent empirical evidence, however, suggests that this effect may be offset by other factors. Moreover, stronger patent protection induces faster product launches in reforming countries. Thus, the impact of patents on access to medicines in developing economies may not be as negative as often feared.

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Peter S. Menell and Suzanne Scotchmer

This chapter examines economic models of innovation and the ramifications for intellectual property policy. It begins with stand-alone innovation and then introduces cumulative innovation. The analysis explores eligibility requirements, duration and breadth of protection, rights and defenses, remedies, and channeling doctrines. The chapter emphasizes the role of licensing and cumulative innovation.

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Daniel Gervais

This chapter begins by defining collective management (of copyright and related rights) and collective management organizations (CMOs). After briefly reviewing possible definitional characteristics, the first part of the chapter uses a functional approach to define CMOs and then explains their economic and noneconomic functions. The next part discusses key aspects of the economic analysis of collective management, namely the justification for collective management, and the valuation of licensed repertoires (or copyright works or objects of neighboring rights) and individual works within such repertoires. This includes a survey of major economic models used in this field. The second part ends with a discussion of efficiency issues related to collective management. The third and last part considers the specific aspects that arise in collective management when it is applied to online uses of copyright material

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Paul J. Heald

Empirical research suggests strongly that copyright law—or at least excessive term length—has a negative effect on the public availability of works. Books, for example, become more available when they fall into the public domain. Also, follow-on works, such as audiobooks, are created at a higher rate after the underlying work falls into the public domain. In addition, for the most popular works, copyright is associated with significantly higher prices, which affects accessibility. Empirical evidence of other copyright-related market constraints is presented.

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Arvids A. Ziedonis

Patenting by universities has seen a marked increase in the past two decades. According to the National Science Foundation, patents issued by the United States Patent Office to U.S. academic institutions more than doubled between 1996 and 2014. As a share of all patents granted, academic institutions accounted for about 2 percent in the same time period. Patenting by universities of faculty inventions has an even longer history in the United States, however, stretching back to the early twentieth century. For much of that time the appropriateness of this activity as one of the many missions of U.S. universities was itself a subject of debate. This chapter begins with a brief outline of this debate and summarizes university patenting through this period. It then discusses the Bayh-Dole Act of 1980, which facilitated patenting and licensing of federally funded university inventions. The chapter concludes by describing the empirical research on university patenting in the last 20 years, highlights some of the unresolved issues within this literature, and suggests new avenues for research.

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Michael Risch

This chapter surveys a variety of methods in conducting empirical trade secret research. It discusses data sources, study types and methods, and challenges unique to trade secrecy with respect to four different considerations: innovation incentives, trade-offs with other IP, the “cost minimization” theory of trade secrets, and litigation behavior. The chapter also includes a comprehensive bibliography of every empirical trade secret study we could locate, organized by subject. Many of the papers and their findings are discussed in the chapter as aids for those developing their own research along similar paths.

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Michael D. Frakes and Melissa F. Wasserman

While there is a substantial literature in law and economics bearing on the patent system, the administrative process by which patent rights are initially established has received scant attention. In the past decade, a growing but nascent literature has emerged that has begun to shed empirical light on the patent examination process. This chapter will provide a brief overview of this literature, focusing only on studies that carry significant empirical components and only on studies of the U.S. patent system. The need for sound empirical guidance on the administrative process of obtaining a patent is substantial. Without sufficient empirical evidence as to which features of the U.S. Patent and Trademark Office shape the Agency’s decision making, policymakers are left trying to reform the patent system without understanding the root cause of the system’s pathologies

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Ronald Mann and Christopher Cotropia

This chapter reviews empirical literature studying the patentability requirements. The chapter initially explores scholarship focused on whether a patent’s validity is empirically quantifiable. This literature attempts to discern indicators of patent validity and patent quality. The chapter then examines scholarship on the courts and how they evaluate a patent’s (or patent application’s) validity. These studies examine judicial and administrative outcomes and the content of such decisions reaching these outcomes with the goal of both quantifying a decision-maker’s attitude toward patentability and identifying the specific standards and analysis used in deciding patentability.

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J. Jonas Anderson and Peter S. Menell

Patent claims define the scope of the patent right and hence are central to the operation of the patent system. Following the Supreme Court’s decision in Markman v. Westview Instruments (517 U.S. 370 (1996)), holding that “the construction of a patent, including terms of art within its claim, is exclusively within the province of the court,” district judges began the practice of construing patent claims in advance of trial following so-called “Markman” hearings. These constructions became subject to appellate review after the trial or summary judgment ruling. This chapter surveys empirical studies examining: (1) reversal rates; (2) the sources and methodologies that judges employ in construing patent claims; and (3) appellate behavior generally. It examines the hypotheses underlying these studies, the data used, the empirical methods deployed, and the principal results. It also suggests directions for further research.

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Matthew Sag

This chapter summarizes the current state of the art in the application of observational empirical tools to the study of copyright litigation. The chapter divides the field into three broad categories: studies of judicial behavior, studies of copyright litigation trends including the selection of disputes for litigation, and studies of particular aspects of copyright doctrine. Using data from many of the studies reviewed, this chapter provides independent analysis and alternative visualizations of some of those articles key findings. The chapter contains in-depth treatment of several observational studies of copyright fair use cases, including Barton Beebe’s landmark 2008 study and Neil Netanel and Matthew Sag’s extensions thereof. The chapter concludes with guidelines for researchers planning to undertake an empirical study of copyright litigation and argues that, used responsibly, empirical methods have the potential to augment legal scholars’ traditional toolset by injecting some rigor into casual empirical observations and by identifying patterns of behavior and judicial decision-making that might otherwise go unobserved.