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Edited by Ben Depoorter, Peter Menell and David Schwartz

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Michael W. Carroll

By design, copyright and patent law provide largely one-size-fits-all exclusive rights to inventors and authors. This policy creates the problem of uniformity cost, defined as the social cost attributable to the misalignment between the general level of exclusion provided by uniform rights and the specific level of exclusion that would be optimal with respect to any given author or inventor to both create and to commercialize their work. This chapter provides an explanation for the uniformity policy and the existing means of reducing uniformity cost through real options, flexible standards, and private ordering. It then discusses the conditions that would make tailoring intellectual property rights superior to uniform rights. It identifies the categories of economic evidence that would support specific tailoring interventions, which can be done through legislation, judicial interpretation, or administrative rules depending upon context.

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Jorge L. Contreras

Despite their potential benefits, voluntary consensus standards have over the past decade become the subject of significant private litigation, regulatory enforcement and policy debate. Much of the current controversy centers on the perceived proliferation of patents covering standardized technologies, potentially abusive enforcement of such patents against manufacturers and users of standardized products, and the terms on which patent holders may be required to license the use of those patents to others. This chapter offers an overview of the empirical, legal and economic literature concerning the interaction of interoperability standards and standards-setting organizations with intellectual property rights (primarily patents, with attention to copyrights and trademarks as well).

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Shyamkrishna Balganesh

As applied to the context of intellectual property thinking today, ‘the common law’ refers to a variety of different ideas, each of which contributes to a particular normative vision for the institution. These myriad understandings of the term in turn draw from different structural, institutional, and jurisprudential ideas that the common law has come to be associated with over the last several centuries. Accordingly, this chapter attempts to unbundle these different usages of the term in the law and economics of intellectual property in order to show what they each bring to the discussion. In particular, it examines the three dominant versions of the idea in the literature, which understand the common law as: (i) a method of lawmaking and legal reasoning; (ii) judge-made law; and (iii) state law. After examining these different strands in the legal literature it then connects them to relevant ideas and theories in both general law and economics, as well as the law and economics of intellectual property.

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Arti K. Rai and Saurabh Vishnubhakat

The post-grant administrative review of patent validity set up at the U.S. Patent and Trademark Office’s Patent Trial and Appeal Board (PTAB) by the America Invents Act of 2011 has transformed the relationship between Article III patent litigation and the administrative state. This chapter reviews scholarly literature that has made the case for such review and presents basic data on the functioning of several predecessors to the PTAB. It also reviews the empirical literature on the PTAB’s functioning, focusing on literature that falls into one of four categories: (1) basic descriptive statistics; (2) the intersection with district court litigation, including across different technology areas and different courts; (3) the impact of the PTAB on non-practicing entities; and (4) comparisons of patent and patent-examination characteristics between patents challenged at the PTAB and a matched sample that was not challenged. The chapter concludes by setting forth a research agenda

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Kal Raustiala and Christopher Jon Sprigman

The law and economics of intellectual property (IP) has long rested on a foundational, if implicit, premise: that IP law is best understood by studying how legal rules operate in actual markets for creative work. Yet this way of thinking about IP leaves open a host of important and fascinating questions. Can innovation flourish in the absence of IP protection? Can market incentives, psychological factors, social norms, first-mover advantages, or any number of other factors, serve as whole or partial substitutes for IP rights? In this chapter, we explore IP’s ‘negative space’—that is, those creative and innovative fields that, for historical, doctrinal, or other reasons are not addressed by IP law—and the scholarship that has begun to illuminate it. This literature is barely more than a decade old, but already it has shaped how scholars today think about IP. In particular, it shows that the link between IP and creative incentives is more conditional and contested than many believe.

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Jos Boertjens, Johan van Manen, Misja Mikkers and Wolf Sauter

Because the risk of ill health is part of the human condition, there is a universal interest in providing access to high-quality healthcare while controlling the sacrifices that are necessary to obtain it – after all, the funds used for healthcare cannot be allocated to alternative uses. Affordability is therefore an important consideration that is closely linked to access. Quality determines the health value of the treatment provided. Arriving at a social consensus on how to achieve these goals is difficult, however, which in most countries leads to intense debate on healthcare, as the contributions to this book regarding the US, South Africa, Colombia and the Netherlands all illustrate. Unsurprisingly, there is no one particular healthcare system that meets all three of the needs identified above perfectly. Instead, there is a wide variety of such systems, each with different advantages, disadvantages and trade-offs. Hence it is important that data on the problems encountered are collected and analysed, and that learning occurs between different health systems. This is a practical as well as a scientific challenge, because hitherto most studies on healthcare regulation have not taken a comparative perspective based on comparable data. In fact, in many respects, no such data yet exists. This book charts hospital financing across the three dimensions of access, affordability and quality. It does so based on an international comparison spanning four different continents. For the purpose of our project, we have collected 11 country reports, compiled by national experts according to a standard structure. In addition, six thematic chapters are included that explore specific questions. The invited authors include academics and practitioners (primarily, but not exclusively, policymakers).

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The Law and Policy of Healthcare Financing

An International Comparison of Models and Outcomes

Edited by Wolf Sauter, Jos Boertjens, Johan van Manen and Misja Mikkers

Examining the ways and extent to which systemic factors affect health outcomes with regard to quality, affordability and access to curative healthcare, this explorative book compares tax-funded Beveridge systems and insurance-based Bismarck systems. Containing contributions from national experts, The Law and Policy of Healthcare Financing charts and compares the merits of healthcare systems throughout 11 countries, from the UK to Colombia.
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Jos Boertjens and Mary Guy

In this chapter the authors compare the health care systems of England and the Netherlands with respect to contracting, accountability frameworks and the duty to provide care and access to health care. The objectives of contracting are different in these two countries. While in the Netherlands contracting is envisaged to promote efficiency and quality, contracting in England appears to set a minimum requirement. Under the Dutch system, the insurer must fulfill its duty to provide care. In England it is difficult to hold any party accountable for ensuring that patients receive necessary care. Various types of co-payments and out-of-pocket charges occur in both England and the Netherlands. In both countries personal care budgets exist to put patients in charge of their own budgets.

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Markus Krajewski and Rhea Tamara Hoffmann