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<title>Law and Tech Research feed - Economics</title>
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    <title>Bankruptcy Treatment of Intellectual Property Assets: An Economic Analysis </title>
    <description><![CDATA[With the rise of intellectual property in the modern economy, bankruptcy treatment of intellectual property assets has taken on ever greater importance. The law in this area must balance different approaches to asset management. Viewing the world from an ex ante perspective, intellectual property laws seek to foster investment in research and development. Freedom of contract plays a central role in maximizing the potential value of intellectual property by encouraging a robust licensing market to exploit the value of intellectual creativity. By contrast, the bankruptcy system generally views asset management from an ex post standpoint, focusing narrowly on how to maximize the value of a failing or failed enterprise. Thus, bankruptcy law affords trustees and debtors substantial leeway to rescind contracts and reorder the affairs of the failed entity. This article examines the rather complex rules governing the treatment of intellectual property assets in bankruptcy and suggests various reforms that could better promote economic efficiency. ]]></description>
    <link>http://www.law.berkeley.edu/10330.htm</link>
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    <pubDate>Tue, 06 Oct 2009 09:00:00 -0400</pubDate>
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    <title>Profit Neutrality in Licensing: The Boundary Between Antitrust Law and Patent Law </title>
    <description><![CDATA[We address the patent/antitrust conflict in licensing and develop three guiding principles for deciding acceptable terms of license. Profit neutrality holds that patent rewards should not depend on the rightholder's ability to work the patent himself. Derived reward holds that the patentholder's profits should be earned, if at all, from the social value created by the invention. Minimalism holds that licenses should not be more restrictive than necessary to achieve neutrality. We argue that these principles are economically sound and rationalize some key decisions of the twentieth century such as General Electric and Line Material. ]]></description>
    <link>http://www.law.berkeley.edu/10217.htm</link>
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    <pubDate>Fri, 29 Feb 2008 09:00:00 -0400</pubDate>
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    <title>A Method for Reforming the Patent System </title>
    <description><![CDATA[The principal recent studies of patent reform (NAS (2004), FTC (2003), Jaffe and Lerner (2004)) contend that a uniform system of patent protection must (or should) be available for anything under the sun made by man based upon one or more of the following premises: (1) the Patent Act requires such breadth and uniformity of treatment; (2) discriminating against any particular field of technology would be undesirable; (3) discrimination among technologies would present insurmountable boundary problems and could easily be circumvented through clever patent drafting; and (4) interest group politics stand in the way of excluding any subject matter classes from patent law or reforming the patent law requirements, duration, defenses, or remedies for a particular subject matter class. As a result, these studies consider and recommend reforms that would apply to all fields of patentable subject matter (systemic reforms) and largely ignore reforms that would either bar particular classes of technology from patent protection (e.g., software, business method, genomic sequences) or afford different classes of patentable subject matter different requirements or remedies (categorical reforms). This article sets forth a method for evaluating and formulating patent policy that considers both systemic and categorical reforms and sketches out how that method could be applied to the current patent crisis. ]]></description>
    <link>http://www.law.berkeley.edu/10337.htm</link>
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    <pubDate>Mon, 22 Jan 2007 09:00:00 -0400</pubDate>
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    <title>Still Looking for Lost Profits: The Case of Horizontal Competition </title>
    <description><![CDATA[When infringement of a patent dissipates profit relative to the licensing agreement that would otherwise occur, damages under the lost-profit rule deter infringement, and otherwise not. We develop this point in a general model and give two examples. However, joint profit might not be dissipated by infringement. An important example is where there are restrictions on licensing that arise from competition policy. ]]></description>
    <link>http://www.law.berkeley.edu/10315.htm</link>
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    <pubDate>Sun, 25 Jun 2006 09:00:00 -0400</pubDate>
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    <title>Should Economics Play a Role in Copyright Law and Policy? </title>
    <description><![CDATA[Given the utilitarian rationale for copyright and the economic incentives this law aims to create for investment in intellectual labor, it is somewhat surprising that economic analysis has thus far played such a small role in copyright law and policymaking. This article suggests several reasons why economic analysis has had such a limited role in the past and why there may be resistance within the copyright policymaking community to giving economic analysis a more substantial role in the future. It goes on to give some examples of legislative uses of economic analysis to inform sound policy-making and of uses and misuses of economic analysis as a tool in interpreting the scope of copyright. The article predicts that economic analysis will have more influence in legislative, policy, and judicial interpretation of copyright in the future. ]]></description>
    <link>http://www.law.berkeley.edu/10408.htm</link>
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    <pubDate>Thu, 04 Aug 2005 09:00:00 -0400</pubDate>
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    <title>A Transactional View of Property Right </title>
    <description><![CDATA[Property rights and contract law are two of our most basic legal categories. Many legal scholars describe what makes them different; this Essay describes how they work together to promote economic exchange. Incorporating the insights of both "transaction cost" and "new property rights" economics, it identifies two crucial contributions that property rights make to real-world contracting: (1) precontractual liability, or protection for disclosure of sensitive information in the period leading up to contract formation; and (2) enforcement flexibility after a contract is executed, in the form of many subtle but important advantages that accrue to a contracting party who also holds a property right. This Essay argues that property's "transactional" role is growing in importance, as the "new economy" ushers in a more transaction-intensive industrial structure featuring greater numbers of smaller, more specialized firms. ]]></description>
    <link>http://www.law.berkeley.edu/10377.htm</link>
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    <pubDate>Tue, 26 Apr 2005 09:00:00 -0400</pubDate>
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    <title>An Economic Assessment of Market-Based Approaches to Regulating the Municipal Solid Waste Stream </title>
    <description><![CDATA[In the late 1980s and early 1990s, it was widely reported that the United States faced a solid waste crisis. Existing landfills were reaching capacity or being shut down because of more stringent regulations while waste volumes were continuing to rise. At the time, several market-oriented policy analysts advocated the adoption of variable rate charges for mixed refuse in conjunction with curbside pick-up of recyclables (without charge) as a means of reducing waste volumes and diverting recyclable material to more valuable uses. During the course of the past decade, such policies have been adopted widely throughout the United States - approximately 20 percent of the U.S. population now face variable rate charges for mixed refuse collection. Even more have curbside collection of recyclable materials. This article collects and reviews empirical studies evaluating the effects of variable rate pricing. It finds that these policies have been quite effective as a means of boosting diversion rates beyond the levels that can be achieved through curbside collection of recyclables alone. The overall cost-benefit analysis of such programs is modestly favorable. Since many states and communities have committed to achieving specified waste diversion targets, variable rate policies have been a cost effective policy tool. The experience with variable rate policies represents a promising example of non-coercive, information-oriented government intervention. With a relatively small budget and no authority to impose household solid waste policy on local governments, EPA has been remarkably successful at developing and diffusing effective solid waste management policies. The economic theory underlying variable rate pricing has proven, after some tinkering at the implementation stage, to be quite workable in practice. In fact, the practical realities of implementing charges have shown that theoretical perfection in terms of getting the prices right is less important in the grand scheme than keeping the transaction costs manageable. Looking forward, variable rate pricing can be expected to become even more economically advantageous as recycling markets continue to mature, landfill tipping fees rise, and improved technologies for curbside collection, monitoring, billing, and measuring waste develop. ]]></description>
    <link>http://www.law.berkeley.edu/10335.htm</link>
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    <pubDate>Sat, 11 Sep 2004 09:00:00 -0400</pubDate>
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    <title>The Political Economy of Intellectual Property Treaties </title>
    <description><![CDATA[Intellectual property treaties create two types of obligations: for national treatment of foreign inventors and for certain harmonized protections. I investigate both the incentive to join such treaties and the incentive to harmonize. As compared to an equilibrium in which the countries' policy makers make independent choices, harmonization will generally strengthen protections. This analysis recognizes that public sponsorship is sometimes an efficient alternative to intellectual property. However, there are no institutions to harmonize public spending, and there are no international mechanisms to repatriate the spillovers it generates. As a consequence, there may be too little public sponsorship and too much intellectual property. A country's inclination to strengthen harmonized protections will depend both on its innovativeness (positively) and on the size of its domestic market (negatively). ]]></description>
    <link>http://www.law.berkeley.edu/10170.htm</link>
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    <pubDate>Thu, 24 Jun 2004 09:00:00 -0400</pubDate>
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    <title>The Core and Hedonic Core: Reply to Wooders (2001), with Counterexamples </title>
    <description><![CDATA[In response to Wooders (2001), I review the contributions of Engl and Scotchmer (1996) regarding monotonicity and the hedonic core, show how our contributions diverge from those previously in the literature, and highlight the importance of our assumptions by giving counterexamples, particularly to related results of Wooders. ]]></description>
    <link>http://www.law.berkeley.edu/10317.htm</link>
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    <pubDate>Thu, 06 Mar 2003 09:00:00 -0400</pubDate>
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    <title>Damages and Injunctions in the Protection of Proprietary Research Tools </title>
    <description><![CDATA[We investigate how liability rules and property rules protect intellectual property. Infringement might not be deterred under any of the enforcement regimes available. However, counterintuitively, a credible threat of infringement can actually benefit the patentholder. We compare the two doctrines of damages, lost profit (lost royalty) and unjust enrichment, and argue that unjust enrichment protects the patentholder better than lost royalty in the case of proprietary research tools. Both can be superior to a property rule, depending on how much delay is permitted before infringement is enjoined. For other proprietary products (end-user products, cost-reducing innovations), these conclusions can be reversed. . ]]></description>
    <link>http://www.law.berkeley.edu/10318.htm</link>
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    <pubDate>Fri, 24 Nov 2000 09:00:00 -0400</pubDate>
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    <title>Economic and Constitutional Influences on Copyright Law in the United States </title>
    <description><![CDATA[After U.S. accession to the Berne Convention in 1988, many scholars have expected an increasing convergence between U.S. and EU copyright law. Even though some developments in U.S. copyright law evidence a move towards the European model, this article concludes that deep differences will continue to exist between U.S. and EU copyright law, chiefly because of the influence of economic thinking on the scope of copyright law in the U.S. and the influence of the U.S. Constitution. The economic and constitutional underpinnings of U.S. copyright law give rise to a legal regime whose principles and purposes fundamentally differ in many respects from the 'author-centric' regimes of EU nations. Although the article deals with the historical moorings of U.S. copyright law, it offers numerous examples to demonstrate how economic and constitutional reasoning manifest themselves in modern judicial pronouncements on everything from copyright protection for computer programs to the unprotectability of unoriginal data compilations. These decisions have used economics and the Constitution to adapt U.S. copyright law to new technological challenges. ]]></description>
    <link>http://www.law.berkeley.edu/10407.htm</link>
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    <pubDate>Fri, 20 Oct 2000 09:00:00 -0400</pubDate>
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    <title>Property Rights Theory and the Employed Inventor </title>
    <description><![CDATA[This paper explains and defends the legal rules governing employed inventors in the United States. In particular, it justifies the oft-criticized propensity of courts to defer to apparently one-sided "pre-invention assignment" agreements that give corporate employers broad rights in the inventions their employees make during (and in some cases briefly following) employment. It also explains legal default rules that operate in the absence of contracts. All of these rules make eminent sense from the perspective of transaction cost economics and property rights theory. Since most corporate inventing involves large teams of researchers, and in many cases produces numerous individual patents covering various components of a single R&amp;D project, corporate inventing can be seen as the product of numerous highly complementary inputs. Permitting each employee to own the patents resulting from his or work would result in complex bargaining problems, and in many cases holdups. As predicted/recommended by both transaction cost (Williamson; Klein, Crawford &amp; Alchian) and property rights (Hart; Grossman &amp; Hart) theory, the law thus strongly favors an integrated ownership structure (i.e., employer ownership) where complementary inventions are likely. The paper goes on to point out, however, that there are several oft-overlooked counterweights to the traditional pro-employer bias of this area of the law. Changing practices favoring out-sourcing and other contractual arrangements -- as opposed to traditional employment -- receive more generous treatment, and should. Also, because of difficulties involved in proving when an invention was actually made, there is a hidden "exit option" in favor of employees which allows them in many cases to leave the employer to flesh out a promising new technology. Putting the law of employee inventions in context, then, provides a strong counterargument to the traditional critique that this area of law is overly generous to employers. ]]></description>
    <link>http://www.law.berkeley.edu/10392.htm</link>
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    <pubDate>Fri, 17 Oct 1997 09:00:00 -0400</pubDate>
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