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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.

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Dotan Oliar

This chapter reviews the nascent empirical literature on copyright registrations at the U.S. Copyright Office. In one body of work, scholars explored patterns of use of the copyright system. Individuals and corporations tend to register different types of works, of different published status, at different rates, times and locations. Individual authors of different races, genders and ages similarly tend to register different types of works at different rates. In a second body of work, noisy registration data were used to measure the effect of various statutory revisions and court precedents on creativity. The chapter discusses the promise and challenges of using registration data to guide copyright law reform.

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Michael Mattioli

This chapter provides an overview of the legal and economic impact of patent pools, with a particular focus on the methods scholars have used to study these institutions empirically. Patent pools are privately governed institutions that license complementary patent rights under unified agreements. Since the first American pools formed in the 1850s, these groups have touched diverse industries and raised challenging policy questions: when is cooperation among patent holders socially productive? Under what circumstances can a patent pool harm competition? Are patent pools sometimes the only way patent holders can extract the full value of the rights they hold? Should the government take affirmative steps to either encourage or discourage patent pools and if so, what forms of intervention are most appropriate? As this chapter explains, great scholarly effort has gone into understanding the impact these groups have had on competition, innovation, and society

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Colleen V. Chien and David L. Schwartz

Pursuant to Section 337 of the Tariff Act of 1930, the International Trade Commission (ITC) regularly hears patent cases and provides injunctive relief from infringing imports. Several features of the ITC’s Section 337 authority make it well suited for empirical patent scholarship and policy inquiry. First, while the jurisdiction of Section 337 overlaps with that of federal courts (about 70 percent of ITC 337 cases have a district court counterpart), many of its procedures distinguish it from the district court, including faster adjudication, streamlined procedures, the lack of a jury and counterclaims, and nearly automatic injunctive relief. These characteristics support an analysis of various institutional design features on party behaviors and outcomes. Second, the longstanding overlap between the jurisdiction of the district courts and ITC provides a case study in the coordination between parallel venues litigating the same dispute, which has become more commonplace in light of the rise of inter partes review proceedings, most of which have a parallel district court filing. Finally, because the ITC’s rules require a domestic injury and the frequent grant of cease and desist orders or exclusion orders (which operate similar to district court injunctions), the ITC has come under policy scrutiny. This chapter describes the features of the ITC and the main policy and theoretical questions that have animated study of the ITC’s 337 authority, what we do and don’t know, and possible directions for future research.

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Barton Beebe

This chapter sets forth a literature review of empirical studies of trademark law, including studies of trademark registration practices, trademark distinctiveness, courts’ adjudication of the likelihood of consumer confusion and the likelihood of trademark dilution, and litigants’ and courts’ uses of survey evidence.