Recent Headlines in the IP World:
- Stephen Nellis and Leslie Adler: NY Court Overturns $115 Million Patent Judgment Against Samsung (Source: Reuters)
- Richard Harris: East Coast Scientists Win Patent Case Over Medical Research Technology (Source: NPR)
- Sharmishta Sarkar: Apple Patent Application Details Plans for ‘Indestructible’ iPhones and MacBooks (Source: TechRader)
- Jenny Scribani: Chart: The AI-mazing Patent Race (Source: Visual Capitalist)
- Kyle Hyatt: GM Files Patent Application for a ‘Clutch-by-Wire’ System (Source: CNET)
Commentary and Journal Articles:
- Prof. Sean M. O’Connor and Prof. Erika Lietzan: The Surprising Reach of FDA Regulation of Cannabis, Even after Descheduling (Source: SSRN)
- Heather Murphy: What 13,000 Patents Involving the DNA of Sea Life Tell Us About the Future (The New York Times)
- Prof. Gregory Day and Atty. Steven Udick: Offshoring Patent Law (Source: SSRN)
- Atty. John Paul and Atty. D. Brian Kacedon: Recent U.S. Court Decisions and Developments Affecting Licensing (Source: SSRN)
New Job Postings on Patently-O:
From the Day & Udick article:
Legislators and industry leaders claim that patent strength in the United States has declined, causing firms to innovate in foreign countries.
A claim that makes no sense whatever, although the authors are certainly correct that one sees this claim thrown about all over the place. Implicitly the claim is even present in the title of the recent “America Invents Act”—a sideways assertion that U.S. patent law has something especially to do with innovation in the U.S., when in fact U.S. patent law acts as an equal opportunity incentive for all innovation, both domestic and abroad.
Since technology is generally developed in one country, the innovation process exposes the typical inventor to infringement claims only in that jurisdiction. In turn, we demonstrate that inventors have powerful, counterintuitive incentives to develop technology where patent rights are weaker and enforcement is cheaper.
Goodness. I rather wish that I had thought of this, although now that I read it, I cannot imagine why this point had not previously occurred to me. Yes, it is economically rational to locate R&D in a jurisdiction with particularly weak patent law, all other things being equal.
Of course, all other things are almost never equal. Patent law comes into the list of “reasons to locate R&D in a given locale” at about position #143 on the list, way behind: (1) tax incentives; (2) lifestyle quality appeal of a given locale to the top flight scientists who have many other opportunities; (3) supply of well educated individuals in the vicinity who can be employed in support staffing positions; (4) proximity to manufacturing and supply lines; and (5) legality of doing the R&D work in the locale (many European countries, for example, simply will not let one do genetic engineering research in their territories).
No one actually makes site selection decisions for an R&D facility based on patent law. If one did make R&D decisions on that basis, however, then a strong patent system would actually be a mark against a location, not in favor.
You posted this type of view time and again Greg, yet you seem unable to cope with the answers previously supplied.
Keep it simple: patent law IS a sovereign-centric law.
Always has been.
Always will be.
I have heard arguments for the displacement of R&D related to the differences in patent systems, so I don’t think this concern is as low as you suggest. It is probably not the number one concern, but it was a concern.
I do not remember that the strength of the patent system was at the same level of concern as the cost and duration of defending against infringement/enforcing patent rights. I remember that weakness of a patent system was a concern, but a lower concern than cost.
While IPR were meant to address cost and duration concerns, it still expensive and long in the US to sort out just validity issues.
To be clear, I have heard arguments related to the comparative value of a granted patent in a given jurisdiction. These arguments, however, were largely self-serving, and not made in the context of any actual decision making process. I suppose that if someone with actual knowledge of R&D siting decisions were to come forward and say that s/he made actual decisions about where to locate an R&D facility base (at least in part) on the patent law implications of that location decision, I would defer to that person’s superior personal knowledge. Given the obvious illogicality of that assertion, however, my Bayesian priors remain that this argument is merely self-serving nonsense, intended for propaganda value.
The arguments I heard were made by decision makers. I can’t swear that the arguments were genuine, they may just have been convenient to bolster the decision to move some R&D out of the US.
What 13,000 Patents Involving the DNA of Sea Life Tell Us About the Future
It tells us that a lot of patents are going to be invalidated.
[shrugs]
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