Author(s): Robert P. Merges Year: 2007 Abstract: In the 1980s and early 1990s, it was commonly said that patents would severely damage the software industry. I review some of these early predictions, and hold them up to the light of actual experience. However judged – by overall industry revenues, by product innovation, or by vibrancy […]
Software and Patent Scope: A Report from the Middle Innings
The End of Friction? Property Rights and Contract in the ‘Newtonian’ World of On-Line Commerce
Author(s): Robert P. Merges Year: 1997 Abstract: The conventional account lists four types of transaction costs: – Identifying potential buyers and sellers; – Negotiating deals; – Measuring performance, e.g., metering use; and – Enforcing agreements. Despite recent hype, cyberspace is not truly Newtonian because it does not eliminate all of these sources of friction. Enforcement […]
To Waive and Waive Not: Property and Flexibility in the Digital Era
Author(s): Robert P. Merges Year: 2011 Abstract: Even in an era when creative works can sometimes be made collectively, and where copying and modifying existing works is often easy, individual ownership of discrete creative works still makes sense. Individual creative effort is still the crucial ingredient for many high quality works, and the control conferred […]
Keeping Track of Telecommunications Surveillance
Author(s): Paul M. Schwartz Year: 2009 Abstract: Telecommunications surveillance raises complex policy and political issues. It is also a matter of great concern for the general public. Surprisingly enough, however, the phenomenon of telecommunications surveillance is poorly measured in the U.S. at present. As a result, any attempt at rational inquiry about telecommunications surveillance is […]
The Continuing Vitality of Music Performance Rights Organizations
Author(s): Robert P. Merges Year: 2008 Abstract: Some commentators see the need for major changes in the legal and institutional framework surrounding the music industry. Some proposals call for revising or eliminating performing rights organizations (PROs), which have for many years now represented the interests of songwriters in their dealings with broadcasters and other companies […]
Operating Efficiently Post-Bilski by Ordering Patent Doctrine Decision-Making
Author(s): Robert P. Merges Year: 2011 Abstract: Now that the Supreme Court has decided Bilski v. Kappos, there is an enormous amount of speculation about the case’s impact on patent applicants, litigants, and other participants in the patent system. Most of the commentary is concerned with the holding in Bilski, how this holding will be […]
Regulating Governmental Data Mining in the United States and Germany: Constitutional Courts, the State, and New Technology
Author(s): Paul M. Schwartz Year: 2011 Abstract: For the anthropologist Clifford Geertz, law is “part of a distinct manner of imagining the real.”1 In Local Knowledge, he argues that, at a fundamental level, legal systems create a way of envisioning the world and then develop different kinds of “techniques”—whether through legal institutions, methods, or doctrines—that […]
Promoting Patent Claim Clarity
Author(s): Peter S. Menell Year: 2012 Abstract: Fuzzy patent claim boundaries undermine the functioning of the patent system by making it difficult for inventors and competitors to assess freedom to operate in many technology marketplaces, especially those relating to computer software and business methods. This commentary advocates the use of a detailed, electronic, claim application […]
Foundations and Principles Redux: A Reply to Professor Blankfein-Tabachnick
Author(s): Robert P. Merges Year: 2013 Abstract: This is a response to a commentary by Professor David H. Blankfein-Tabachnick (“B-T”) on my book, Justifying Intellectual Property (JIP) (2011). In JIP, I describe IP law at three levels: foundations, midlevel principles, and specific doctrines and institutions. At the bottom are foundational justifications for the field, ultimate […]
Patents in the University: Priming the Pump and Crowding Out
Author(s): Suzanne Scotchmer Year: 2013 Abstract: The Bayh-Dole Act allows universities to exploit patents on their federally sponsored research. University laboratories therefore have two sources of funds: direct grants from sponsors and income from licensing. Tax credits for private R&D also contribute, because they increase the profitability of licensing. Because Bayh-Dole profits are a source […]