A number of doctrines in modern copyright and patent law attempt to strike some balance between the rights of original developers and the rights of subsequent improvers. Both patents and copyrights are limited in duration and in scope. Each of these limitations provides some freedom of action to...

Patent law is virtually alone in intellectual property (IP) in punishing independent development. To infringe a copyright or trade secret, defendants must copy the protected IP from the plaintiff, directly or indirectly. But patent infringement requires only that the defendant's product falls...

Patent damages are designed to compensate patentees for their losses, not to punish accused infringers or require them to disgorge their profits. The statute provides for damages "adequate to compensate for the infringement, but in no event less than a reasonable royalty." Courts interpreting...

Obviousness is the ultimate condition of patentability. The obviousness requirement - that inventions must, to qualify for a patent, be not simply new but sufficiently different that they would not have been obvious to the ordinarily skilled scientist - is in dispute in almost every case, and it...

We argued in our paper, "Patent Hold-Up and Royalty Stacking," that the threat to obtain a permanent injunction greatly enhances the patent holder's negotiating power, leading to royalty rates that exceed a benchmark level based on the value of the patented technology and the strength of the...

The Economic Espionage Act of 1996 was intended to address both the general need for a federal criminal deterrent against trade secret theft as well as the apparent threat from foreign state-sponsored industrial espionage. This article examines the background of this new law, provides critical...

Every IP right has its own definition of infringement. In this paper, we suggest that this diversity of legal rules is largely traceable to differences in the audience in IP cases. Patent, trademark, copyright, and design patent each focus on a different person as the fulcrum for evaluating IP...

Standard Setting Organizations (SSOs) typically require their members to license any standard-essential patent on Fair, Reasonable, and Non-Discriminatory (FRAND) terms. Unfortunately, numerous high-stakes disputes have recently broken out over just what these “FRAND commitments” mean and...

We conduct a comprehensive study of all patent trials over the past eleven years. We find that juries are more favorable to patentees than judges, that (to our surprise) the length of a trial has no effect on its outcome, and that there are surprisingly modest differences between patentee win...

This Supreme Court amicus brief, filed in Federal Trade Commission v. Watson, explains why exclusion-payment settlements, by which brand-name drug companies pay generic firms to delay entering the market, contravene the policies of patent law, antitrust law, and the Hatch-Waxman Act. It...