Coase’s theory of the firm has become a familiar tool to analyze the structure and organization of businesses. Such analyses have increasingly focused on property based theories of the firm, including intellectual property. In previous work we have discussed the application of this model to...

The recent emergence and rapid growth of biotechnology as a commercial industry has raised serious questions concerning the role of patent law as the industry's dominant form of intellectual property protection. Several commentators, drawing on an analogy to computer software protection, have...

In previous work with Mark Lemley I have discussed the critical role played by the courts in fitting patent law to the ongoing needs of innovation. Careful scrutiny of the recently enacted America Invents Act (AIA), which legislatively reforms American patent law, underscores the need for robust...

A variety of commentators have called for the increased application of liability rules, including compulsory licenses, to intellectual property. Such arguments are well taken, but unfortunately stop short of advocating the full range of potential intellectual property entitlement allocations....

A great deal has been said in recent years about patent disclosure. But to say that there is a disclosure function in the patent system implies that there is non-disclosure functioning in the patent system as well. For some information to be disclosed in a patent, other information must go...

In his article on Creating Around Copyright, Joseph Fishman argues that the constraints imposed by copyright law promote the creativity of subsequent follow-on authors. He suggests that by limiting creative choices, copyright exclusivity may actually enhances the output of follow-on authors by...

Copyright law is largely a response to new media: from the printing press through radio, photocopiers, and digital computers, changes in copyright reflect the increased public availability of information reproduction technologies. But while the exclusive rights conferred by copyright are shaped...

An inescapable feature of regulation is the existence of loopholes: activities that formally comply with the text of regulation, but which in practice avoid the desired outcome of the regulation. Considerable ingenuity may be devoted to exploiting regulatory loopholes. Where technological...

Patent law offers a set of exclusive rights to innovators, awarding such rights for inventions that meet certain statutory criteria. The statutory requirements for invention incorporate purportedly objective criteria against which new technologies are measured for patent eligibility. For...

In this paper I consider the construction of patents as social practices. The goal is to observe patents in action, that is, to catch patents in the act of becoming patents. This method of “following the action” is well established in the scientific arena, where the processes that lead from...