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Monday, February 16, 2009

Invention and Creativity Debated at University of Iowa College of Law

Posted by Shubha Ghosh

Kudos to the faculty and students at University of Iowa College of Law for organizing an excellent symposium on "Invention, Creativity, and Public Policy" for The Journal of Corporation Law this past weekend (Fri Feb 13 and Sat Feb 14).  I was a panelist and enjoyed the opportunity to present.  But it was even a greater delight to listen to a wide range of papers and participate in a fairly lively debate about cutting edge issues in patent, copyright, and competition policy.

The symposium began with a panel on patent law, Professor Kevin Collins of Indiana University Law School setting the high tone of the papers with a presentation on after arising technologies and the scope of the patent grant.   Professor Collins introduced the economic concepts of complements and substitutes to analyze when technologies that arise after the grant of a patent is encompassed by its literal claims.  Bottom line: complementary technologies are included while substitute technologies are not.  Professor Christoper Cotropia of The University of Richmond Law School   followed with a presentation on how to analyze patents as a real option.  Professor Cotropia explained how various aspects of patent policy (prosecution rules, litigation costs) can affect the ability of patent owners to exercise the option presented by the patent.  Professor Michael Meurer of Boston University School of Law addresses several criticisms of his recent book Patent Failure (with James Besen), particularly claims of mismeasurement of the benefits of patents.  Finally, Professor John Duffy of George Washington University Law School   showed why business method patents are not likely to go away anytime soon because of the high level of technological expertise and investment that has supported the development of financial and managerial tools since the 1980's.  The Federal Circuit's decision in State Street, he concluded, does not reflect the capture of the court by pro-patent forces but a reflection of how the field of finance and business took a technological turn.

The snow-covered Saturday morning turned everyone's attention to copyright with Professor Abraham Drassinower of The University of Toronto Faculty of Law challenging the Canadian Supreme Court's emphasis on balancing of rights in its recent copyright jurisprudence.  To determine a copyright by evoking the metaphor of balance, Professor Drassinower argued, does nothing and avoids the more difficult question of what copyright law should protect.  Professor Laura Heymann of William & Mary Law School  revived the concept of balance in her discussion of authorship in U.S. copyright law by showing that different types of authors (individual, corporate) have different incentives for creating, which should be accomodated by copyright doctrine.  Professor Anthony Reese of The University of Texas Law School examined the copyright issues raised by museum photographs of artistic images in the public domain.  While such images are legally available for access by the public, ownership over the physical art work in which the images are embodied can create impediments to access.  Photographs of such images can balance the ownership and access rights, but contemporary copyright law (particularly a New York district court opinion from about a decade ago) denies copyright protection to these photographic images.  Professor Reese proposed a statutory scheme to protect the photographs and create a mechanism for their dissemination and examined its limitations.  Finally, Professor Sara Stadler of Emory University Law School presented a particularly innovative paper on market definition in copyright, bridging the gap between the issue of market definition in antitrust law and the appeal to markets in various areas of copyright law (particularly fair use and derivative work rights).  Professor Stadler suggested that antitrust market definition used in merger analysis that focused on price changes and measurable complements and substitutes might have some application in determining when a new work or use is part of a copyright owner's protected market.  She concluded that a complementary work should constitute fair use and be outside of the market while a substitute work should not constitute fair use and hence be within the scope of the copyright owner's rights. 

Saturday afternoon concluded the symposium with a panel on Intellectual Property and Competition Policy.  Professor Thomas Cotter of The University of Minnesota Law School  made a thorough presentation on how antitrust law can limit the exercise of patent rights post-issuance in such instances as standard setting organizations.  I followed by with a paper on how courts recognize competion policy norms within intellectual property and argued that intellectual property's role as competition policy complements antitrust's in policing intellectual property.   The presentation concluded with a discussion of how the Supreme Court's 2008 decision in Quanta on use restrictions illustrates the use of intellectual property as competiton policy and some of the open questions left after the Quanta decision, particularly in light of the Federal Circuit's decision on the enforcability of use restrictions under open source licensing in  its Jacobsen v Katzer decision of 2008.  Professor Herbert Hovenkamp of The University of Iowa College of Law, the key organizer of the symposium,  presented a paper arguing for antitrust's role in policing patents post-issuance.  He discussed a number of ways in which antitrust police issued patents, including Walker-Process claims,  settlement of disputes in pharmaceutical patent cases, and patent licensing.  Professor Christopher Leslie of Chicago-Kent Law School rounded out the panel with a lively and insightful challenge to Professor Hovenkamp's distinction between antitrust's role pre- and post-patent issuance.  Professor Leslie argued for more aggressive antitrust scrutiny of patents under Walker-Process claims, the doctrine of inequitable conduct, and tying theories.  The Federal Circuit's recent decision in Dipping Dots v Mosely (reversing a Walker Process claim, but finding a patent not infringed, invalid, and unenforcable) was a large focus of discussion.  The panel, and symposium, ended with a lively discussion of Quanta and Walker-Process, providing much fodder for a follow-on symposium or two.

Thanks, personally, to the Journal and the law school for the invitation.  Look out for the symposium issue which should be an important volume for those interested in questions of intellectual property, innovation, and competiton policy.

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