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Christopher Buccafusco and Christopher Jon Sprigman

Perhaps more than any other area, intellectual property (IP) law is grounded in assumptions about how people behave. These assumptions involve how creators respond to incentives, how rights are licensed in markets, and how people decide whether to innovate or borrow from existing culture and technology. Until recently, there had been little effort to validate any of these assumptions. Fortunately, the last decade has witnessed significant interest in empirically testing IP law’s foundations. This chapter discusses the use of experimental and survey methods to understand how various features of copyright and patent law affect behavior. These methods allow researchers to ask and answer questions that are not generally possible with other empirical strategies. We first discuss some of the advantages of using experimental research. Then we highlight some of the findings that this research has produced thus far. Finally, we explore a variety of methodological issues that experimental researchers face.

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Ryan Vacca

The Court of Appeals for the Federal Circuit is a unique institution. Unlike other circuit courts, the Federal Circuit’s jurisdiction is bound by subject area rather than geography, and it was created to address a unique set of problems specific to patent law. These characteristics have affected its institutional development and made the court one of the most frequently studied appellate courts. This chapter examines, through the use of empirical studies, the court’s development and describes the evolving qualities that have helped the Federal Circuit distinguish itself, for better or worse, as an institution. In particular, this chapter synthesizes the empirical literature involving uniformity, forum shopping, diversity and percolation, certainty and predictability, quality and formalism, court structure, characteristics and background of individual judges, internal dynamics, the use of en banc review, and the court’s interactions with other institutions.

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Henry E. Smith

Debates over intellectual property often assume that recognition of any property element in intellectual property leads to overprotection, and that ‘governance’ is a counterpoint to the excesses of property protection. In this chapter I show that governance is itself a property device, one that not only substitutes for exclusion but often works in tandem with exclusion rights. A governance strategy allocates entitlements more directly based on use than does exclusion, and helps define modular packages of rights. For ‘fluid’ property, of which property in a nonrival resource like information is a prominent example, governance is especially important, because multiple use is crucial and it is difficult to separate out ‘things’ for property protection. The role of governance in intellectual property helps explain the difference between patent and copyright, the strengths and weaknesses of licensing, the role of equity, and the importance of group institutions.

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Jennifer E. Rothman

Custom, including industry practices and social norms, has a tremendous influence on intellectual property (‘IP’) law, from affecting what happens outside of the courts in the trenches of the creative, technology, and science-based industries, to influencing how courts analyse infringement and defenses in IP cases. For decades, many scholars overlooked or dismissed the impact of custom on IP law in large part because of a belief that the dominant statutory frameworks that govern IP left little room for custom to play a role. In the last ten years, however, the landscape has shifted and more attention has been given to considering how custom affects IP entitlements both outside and inside the courtroom. This book chapter in the Research Handbook on the Economics of Intellectual Property Law focuses on the theoretical frames that inform the incorporation of custom into the law, and documents some of the practices and norms of various communities that use IP. I criticize the frequent and unreflected reliance on custom to determine the scope of IP rights, suggesting guidelines for when it can nevertheless be a sometimes useful tool for providing insights about IP laws. This analysis is partially informed by traditional common law limits on the incorporation of custom into the law. The chapter concludes with some recommendations for future areas of research for scholars based on my framework for thinking about custom in the context of IP laws.

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Lee Petherbridge and Jason Rantanen

Most conceptions of patent law envision a system of rules that seek to balance private rights against public interests that include promoting innovation, removing impediments to competition, and making new and useful information broadly available. Here, we review recent insights into two patent doctrines that are deeply infused with this tension: inequitable conduct and patent misuse.

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Brett Frischmann

This chapter explores how infrastructure theory applies to cultural-intellectual resources. It begins with a summary of infrastructure theory and then discusses how the theory applies to intellectual-cultural resources. Applying the theory reveals a series of demand-side complications for conventional law and economic theories of intellectual property and related governance institutions. These complications arise vividly in modern debates about intellectual property rules that exclude certain subject matter or otherwise limit the scope of intellectual property rights and sustain commons (public access). The entry is an adaptation of ‘Intellectual Infrastructure,’ chapter 12 of Frischmann (2012).

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Lee Petherbridge and Jason Rantanen

Although the action for infringement is at the heart of the incentive structure established by the patent laws, research concerning it is remarkably incomplete. Many studies focus on the counting of litigation outcomes. As a consequence, much existing work shines limited light on basic theoretical and doctrinal questions surrounding the action for infringement. Nevertheless, there is a perceptible trend in more recent studies toward relating outcomes to case and other real-world variables. This development offers an added a level of descriptive granularity to observations, and such approaches may in time come to support greater theoretical evaluation of patent law and policy. At a minimum these newer observations help to suggest areas for future work that legal scholars may find worth pursuing. Here, we review the teachings of existing studies that address patent infringement, and offer some thoughts about areas suitable for future research

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Herbert Hovenkamp

Both competition under constant technology and innovation promote economic growth by granting many of the returns to the successful developer. However, profits can also come from practices that reduce output, in some cases by reducing quantity, or in others by reducing innovation. Most intellectual property (IP) rights are insufficient to produce durable monopoly, although they do facilitate product differentiation. We also tend to see IP rules as creating a property rights system in which competition exists for the property rights themselves. Under conventional neoclassical assumptions, both innovation and competition increase output, whether measured by the number of units or their quality. The policy trick is to find the ‘sweet spot’ where the aggregate effects of IP and competition policy are optimized.

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Shubha Ghosh

Intellectual property, among other legal instruments, is used to promote economic development. This chapter explores the normative dimensions of economic development such as growth in gross national product, technological change, and social indicators like health, literacy, and well-being. After an analysis of normative issues, the chapter moves to positive analyses on the relationship between the exclusive rights of intellectual property and development. In conclusion, the author explores topics for future research and policy prescription.

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Christopher S. Yoo

The literature applying the economics of product differentiation to intellectual property (IP) has been called the most important development in the economic analysis of IP in years. Relaxing the assumption that products are homogeneous yields new insights by explaining persistent features of IP markets that the traditional approaches cannot. In addition, it refines the extent to which IP enables rightsholders to earn monopoly profits. It recognizes sources of welfare outside of price-quantity space, which in turn opens up new dimensions along which IP can compete. It also allows for equilibria with different welfare characteristics, making the tendency towards systematic underproduction more contingent and suggesting a broader range of policy options for promoting optimality. This chapter reviews the economics of product differentiation, examining both the monopolistic competition and spatial competition lines of analysis. It then surveys the literature applying these approaches to patent, copyright, and trademark.