Constitutionalizing Patents: From Venice to Philadelphia

Nard, Craig Allen; Morriss, Andrew P.

doi:10.2139/ssrn.585661

Cited by 12 publications

(11 citation statements)

References 38 publications

(6 reference statements)

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“…The lawyers on the ACLU side include Christopher Hansen, whose main interests are first amendment rights, and Dan Ravicher, director of the Public Patent Foundation, a former corporate patent lawyer now affiliated with Cardozo Law School. In their public statements, they have made plain their aspirations to directly challenge the legitimacy of all “gene patents,” and to appeal the case up to the U.S. Supreme Court if possible (7, 147). The plaintiffs include two of the clinicians whom Myriad sued a decade earlier at the University of Pennsylvania and several individual women who want genetic testing and claim Myriad’s policies and practices prevent them from getting their test without risking infringement.…”

Section: The Diversity Of Dna Patents: Patent Storiesmentioning

confidence: 99%

“…Bugbee traces the first invention patent to Florence in 1421, and the first patent law to Venice in 1474, establishing a process to grant exclusive rights for 10 years in the territory controlled by Venice in return for public disclosure (35B, 155). The English Parliament passed the Statute of Monopolies in 1624, not to create a new right but rather to rein in the king’s power to grant monopolies as sources of income and political patronage (155).…”

Section: Introductionmentioning

confidence: 99%

“…The English Parliament passed the Statute of Monopolies in 1624, not to create a new right but rather to rein in the king’s power to grant monopolies as sources of income and political patronage (155). Parliament preserved patents of invention but moved adjudication to common law courts (143).…”

Section: Introductionmentioning

confidence: 99%

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Patents in Genomics and Human Genetics

Cook-Deegan

Heaney

2010

Annu. Rev. Genom. Hum. Genet.

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Genomics and human genetics are scientifically fundamental and commercially valuable. These fields grew to prominence in an era of growth in government and nonprofit research funding, and of even greater growth of privately funded research and development in biotechnology and pharmaceuticals. Patents on DNA technologies are a central feature of this story, illustrating how patent law adapts---and sometimes fails to adapt---to emerging genomic technologies. In instrumentation and for therapeutic proteins, patents have largely played their traditional role of inducing investment in engineering and product development, including expensive postdiscovery clinical research to prove safety and efficacy. Patents on methods and DNA sequences relevant to clinical genetic testing show less evidence of benefits and more evidence of problems and impediments, largely attributable to university exclusive licensing practices. Whole-genome sequencing will confront uncertainty about infringing granted patents but jurisprudence trends away from upholding the broadest and potentially most troublesome patent claims.

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Section: The Diversity Of Dna Patents: Patent Storiesmentioning

confidence: 99%

Section: Introductionmentioning

confidence: 99%

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Patents in Genomics and Human Genetics

Cook-Deegan

Heaney

2010

Annu. Rev. Genom. Hum. Genet.

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“…36 Not all patent systems have a constitutional basis, so in this sense a focus on the US system is somewhat special. While we will not pursue the consequences of this institutional feature of the US patent system, Nard and Morriss (2006) argue that constitutional patent law strengthens the bargain between the state and inventor compared to systems such as patronage. See Jaffe and Lerner (2006) and Scotchmer (2004) for histories of the patent systems and their legal bases.…”

Section: Interpreting the Goal(s) Of Patent Policymentioning

confidence: 99%

Property Rights and Invention

Rockett

2010

Handbook of the Economics of Innovation

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Draft chapter 7 for Handbook of Economics and Technical Change, Bronwyn Hall and Nathan Rosenberg, Editors. This chapter was partially sponsored by "The Knowledge-Based Society", Research Council of Norway project 172603/V10. 1 A more complete description of the patent right, including its history, can be found in Scotchmer (2004), Guellec and van Pottelsberghe de la Potterie (2007), and Jaffe and Lerner (2006). 2 See Guellec and van Pottelsberghe (2007) and Jaffe and Lerner (2006) for more detailed discussion of the philosophical differences between European and US views of patents. For an argument for a constitutional underpinning of patent rights, see Nard and Morriss (2006). 11 See Anand and Khanna (2000) for observed license contract structure. 12 See Jaffe and Lerner (2006), especially pp. 82-94. 19 This may be done in order to obtain several chances at obtaining a valid national patent. As the EPO tends to produce feedback on the patentability of the innovation slowly compared to national offices or the US, this strategy also has the advantage of providing valuable early feedback to the applicant as to whether the application is worthwhile to pursue. Furthermore, as the USPTO allows more substantial changes to be introduced to the patent document after filing, it may make sense to file at the USPTO early and then file a better-crafted document at the EPO later. See Guellec and van Pottelsberghe (2007), p. 155-159, for patent filing routes. 20 Other possible outcomes, which differ between the US and Europe, include withdrawal or revision of the document. See Guellec and Van Pottelsberghe (2007) or Jaffe and Lerner (2006) for details. 21 See http://www.uspto.gov/web/offices/com/speeches/07-46.htm for example. From this press release, it is clear that there is considerable variance across years included in this figure. See also Harhoff and Wagner (2005). Ebert (2004), commenting on the role of patent continuations in the US system, obtains a somewhat lower adjusted rejection rate of ¼. 22 See Bessen and Meurer (2008a) for estimates. 23 Lerner (1995) estimates that cases begun in 1991 in the US would eventually total legal expenditures, in 1991 dollars, of about 27% of all of the basic research expenditure in the US in 1991. 24 See Lanjouw and Schankerman (2001), and Lemley (2001). In other words, about 95% of litigated patents settle out of court. 35 A simple example t keep in mind for later parts of the chapter could be strict enforcement of EU Article 82(a), which forbids "excessive pricing" by a dominant firm. 49 Empirical investigation raises the issue of simultaneity between research intensity and intellectual property protection. Studies controlling for this link (see Qian (2007)), however, continue to find relatively little evidence of a relation between strength of protection and investment activity. 50 In the earlier notation, if welfare equals d+s+π per period, as before, society obtains only s+π during the period of protection, but the entire welfare triangle after the patent expires.

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“…In conjunction with the technical challenges of designing an effective patent system (Encaoua, Guellec, and Martínez, 2006;Shapiro, 2007), there are political challenges (Nard and Morriss, 2006). This paper examines U.S. patent policy from a political economy perspective.…”

Section: Introductionmentioning

confidence: 99%

The Political Economy of Congressional Patent Policymaking in the Late 20th Century

Richman¹

2012

Review of Law &Amp; Economics

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Beginning in the early 1980s, the U.S. Government reformed the patent law in ways that made patents easier to acquire and defend, but further efforts to expand the rights of patent owners had stalled by the mid-1990s. I use a political economy model to explain these changes in terms of the shifting constituency interests represented by members of the U.S. Congress. As the distribution of patenting became less skewed in the 1980s, more members represented constituencies likely to benefit from inefficient patent policy. But as the distribution of patent holding became more skewed once again in the later 1990s, support for expansions of patent rights decreased. * My thinking on this topic benefitted greatly from conversations with William Keech, Greg Adams and Wes Cohen.

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Constitutionalizing Patents: From Venice to Philadelphia

Abstract: Patent law today is a complex institution in most developed

Cited by 12 publications

References 38 publications

Patents in Genomics and Human Genetics

Patents in Genomics and Human Genetics

Property Rights and Invention

The Political Economy of Congressional Patent Policymaking in the Late 20th Century

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