The premise that IP promotes dynamic efficiency while antitrust concentrates on static welfare is wrong, or at least oversimplified. It proceeds from a fundamentally Schumpeterian assumption that competition will not lead to innovation, and we need the lure of monopoly to drive investment in new...

At the heart of copyright infringement cases is “substantial similarity” between the plaintiff’s and the defendant’s works. But while every circuit agrees on the centrality of substantial similarity, that basic agreement conceals surprising differences in what exactly we mean by...

Patent law both imposes a duty on patent applicants to submit relevant prior art to the PTO and assumes that examiners use this information to determine an application's patentability. In this paper, we test the validity of these assumptions by studying the use made of applicant-submitted prior...

Content owners claim they are doomed, because in the digital environment, they can't compete with free. But they've made such claims before. This short essay traces the history of content owner claims that new technologies will destroy their business over the last two centuries. None have come...

How can we fix the PTO, allowing examiners to effectively distinguish between patentable and unpatentable inventions, without slowing the process to a crawl or wasting a bunch of money? This essay reviews the recent literature and considers a number of proposals and their problems. It concludes...

The United States economy is struggling to recover from its worst economic downturn since the Great Depression. After several huge doses of conventional macroeconomic stimulus - deficit-spending and monetary stimulus - policymakers are understandably eager to find innovative no-cost ways of...

More than 2.5 million United States patents have been issued in the last twenty years. While these patents are spread across all industries, a large percentage are concentrated in the information technology (IT) industries, and others in biotechnology. The prevalence of patents in these...

A growing chorus of voices is sounding a common refrain - the U.S. Patent and Trademark Office (PTO) is issuing far too many bad patents. These criticisms are complicated by the rather surprising fact that we don't actually know what percentage of patent applications actually issue as patents....

Proposed Uniform Commercial Code article 2B, which will govern transactions in information, will remake the law of intellectual property licensing in a radical way. But federal and state intellectual property policy impose significant limits on the ability of states to change these rules by...

Proposed Uniform Commercial Code article 2B, which will govern transactions in information, will remake the law of intellectual property licensing in a radical way. But federal and state intellectual property policies impose significant limits on the ability of states to change these rules by...