Creative Commons, OERs and Beyond

Robert Maddex, Patents, in U.S. Constitution A to Z 1 (2002), http://library.cqpress.com/scc/uscoaz_349.1.

In this article the author talks about the adding the value with the strategic use of continuation patents. Topics discussed include spawn a complex network of related patents that cover various aspects of invention, these related patents are typically divisional applications, continuation applications and continuation-in-part ("CIP") applications; and the lack of time and scope restrictions, continuation applications are more cost-effective for applicants, as compared to reissue applications.

I revisit one of the earliest administrative functions of the United States government, the granting of patents, to show why the U.S. Patent Office fits so poorly with the contemporary model of an Executive Branch agency in the modern Administrative State. In parallel with other early "proto-agencies" the Patent Office participated in the most important job of the new national government: economic development. Because of the importance of this policy, and the limited power of the new federal government, Congress, courts, and the executive branch emphasized concerted action rather than separation of powers. The Patent Office had been performing its basic function for nearly one hundred years when the modern "administrative revolution" began its sweep though the federal government. The modern administrative state was created to counterbalance the emergent power of large, concentrated industries; it had little relationship to the original Patent Office mandate from Hamiltonian times. As a consequence, contemporary administrative law is a poor fit for the Patent Office. Administrative law, especially the Administrative Procedure Act ("APA"), governs power relations between federal agencies and the industries they regulate, with courts often acting as referee. But the Patent Office grants government-sanctioned property rights to dispersed inventors in an extremely wide variety of industries, and lets private investment, transactions, and enforcement take over. Since its founding, the Patent Office has been charged not with regulating concentrated industry, but with handing out a small dollop of state power to dispersed parties in the form of individual property rights. Although some features of the modern administrative apparatus surely apply to the Patent Office it is overall best left to the looser-fitting understandings of the Hamiltonian economic development state. [ABSTRACT FROM AUTHOR]

Patent damages and patent breadth are substitutes in producing innovation incentives. That is, given any existing damages and breadth regime, we can decrease (increase) damages and increase (decrease) breadth to keep the expected profit from an innovation constant. By use of numerical simulations, we show that for any given level of ex ante innovation incentive, ex post welfare is generally larger under regimes with smaller damages and larger breadth. We use this same simulation approach to analyze whether patent damages based on lost profits should be evaluated using actual lost profits (actual damages) or what lost profits would be assuming competition (competitive damages). While actual damages lead to smaller benefits from entry, they also induce more entry. Our simulation explores the conditions under which one approach is generally superior to the other (again, holding constant the innovator's expected profit so that the choice of damage measurement regime does not affect the incentive to innovate). Although not universally true, we find that for optimal combinations of damages and patent breadth, competitive damages are superior to actual damages. [ABSTRACT FROM AUTHOR]

The article focuses on role of patents in facilitating the exchange of information during the investment-seeking process includes not only encouraging disclosure of information. It mentions startups in some technology areas continue to spend their limited resources on patents and determining organizational structure, and facilitating disclosure by mitigating the risks of expropriation by the partner. It also mentions patent protection can encourage reciprocal exchanges of information.

This paper surveys the American and British patent systems in the period prior to the latter's reform in 1852 and coinciding with the period of the first industrial revolution. It has been suggested that the British system's archaic application procedure, extortionately high fees and hostile courts were indicative of an oligarchic socio-political system that purposively sought to restrict access to patent protection, as was apparently typical across Europe. Conversely, the American system was an open and democratic one, intended to provide patent protection to as many sections of society as possible. This paper argues for a less stylized comparison. British courts were not so hostile to patents (and patentees) as has been commonly supposed. Neither was it so difficult to obtain patent protection: for all its faults, the evidence that the British patent system was designed to restrict access to its provisions is nugatory. Consequently, explanations for America's technological catch-up and eventual supplantation of Britain and Europe as global technological leader cannot invoke 'superior' patent institutions as a contributory factor. [ABSTRACT FROM AUTHOR]

The article presents the history of and thinking on the appropriate patent term length in the U.S. It offers an overview of the negotiating history of patent terms under the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) and discusses the analyses of patent terms by economists and other experts. Also discussed is the enforcement of the Patent Act of 1790 by the U.S. Patent and Trademark Office (USPTO).

We provide evidence on the value of patents to startups by leveraging the quasi‐random assignment of applications to examiners with different propensities to grant patents. Using unique data on all first‐time applications filed at the U.S. Patent Office since 2001, we find that startups that win the patent "lottery" by drawing lenient examiners have, on average, 55% higher employment growth and 80% higher sales growth five years later. Patent winners also pursue more, and higher quality, follow‐on innovation. Winning a first patent boosts a startup's subsequent growth and innovation by facilitating access to funding from venture capitalists, banks, and public investors. [ABSTRACT FROM AUTHOR]