The Supreme Court generally may overrule, revise, or disregard its precedent. However, the Court lacks such discretion when Congress codifies prior judicial precedent. Yet, the Court has repeatedly subverted Congress’s codification of scienter standards for indirect patent infringement. This...

It is well known that the government’s complete failure to enforce a law can nullify that law. But what are the effects of partial enforcement? This Article shows that imperfect enforcement can alter the de facto content of the written law in predictable and beneficial ways. Specifically, in...

This letter to Congress, submitted on March 10, 2015, originally by 40 (and now 43) academics in law, business, and economics expresses concern about “the many flawed, unreliable, or incomplete studies about the American patent system that have been provided to members of Congress.” An...

In this book chapter, we provide a roadmap of the sources of data on the various forms of intellectual property protection. We first explain what data is available about patents, copyrights, trademarks, and other types of intellectual property, and where to find it. Then we identify and analyze...

A recent and widely received study by Lauren Cohen, Umit G. Gurun, and Scott Duke Kominers finds that non-practicing entities (NPEs) — pejoratively known as “patent trolls” — are “opportunistic” because they target defendants that (1) are cash-rich (particularly compared to...

The traditional view is that patents and prizes stand in stark contrast to one another as means for promoting innovation. On this view, patents are government grants of private property rights that result in market-based, ex post rewards for innovative activity in the form of supracompetitive...

TC Heartland v. Kraft Foods, currently pending at the U.S Supreme Court, concerns where patent owners can file suit against corporate defendants. This amicus brief considers and analyzes the policy issues at stake in this case. It concludes that the current venue rule, which allows patent owners...

Previously, we introduced the concept of “data-generating patents,” which are patented inventions that by design produce valuable data through their operation or use. When holders of data-generating patents possess market power over the patented invention, they often indirectly enjoy market...

Patentees who are successful in litigation are entitled to no less than a “reasonable royalty” for the infringing use of the patent. Currently, reasonable royalties are assessed by the fact-finder using the cumbersome, difficult-to-apply fifteen-factor Georgia Pacific test. The Georgia...

It is now widely asserted that legal regimes that enforce contractual and other limitations on labor mobility deter technological innovation. First, recent empirical studies purport to show relationships between bans on enforcing noncompete agreements, increased employee movement, and increased...