Professors Brian Love and Colleen Chien have each authored a chapter in the recently-published “Research Handbook on the Law & Economics of Intellectual Property Law: Volume 2 – Analytical Methods (Peter S. Menell & David L. Schwartz, eds., Edgar Elgar Publishing 2019).
Professor Love’s contribution is titled Patent Duration. As Love explains, the duration of a patent is a product of two variables: (1) the maximum term of protection that the law provides and (2) the patent owner’s ability to comply with periodic renewal obligations and its willingness to do so. This chapter reviews the theoretical and empirical literature related to both of these variables. Here is an excerpt from the chapter:
“While scholars have to date largely studied renewal fees and the patent term in separate literatures, this practice seems destined to fade as scholars increasingly view term-focused and fee-focused scholarship as two sides of the same coin. Many recent empirical studies have drawn from multiple lines of duration-related scholarship. Sukhatme (2014), for example, uses data on both term sensitivity and renewal rates. Among other trends in empirical research, the ever-increasing availability of detailed data on patent litigation and licensing may be the most promising for future study of patent duration. This data opens yet another avenue for complimentary research into firms’ use of, and returns from, patents over time. Love (2013) and Bessen and Love (2013), for example, use litigation data to link patent enforcement and patent duration, and Giummo (2014) uses royalty data reflected in employee compensation to examine what licensing can tell us about optimizing the rules for patent duration. On the theoretical front, the cutting edge of modeling optimal patent duration appears to be further refinement of the dynamic effects of altering the length of patent rights, as reflected in recent scholarship by Duffy (2003), Deng (2011), and others. Also, scholars like Portnoy (2001) and Baudry and Dumont (2009) continue to introduce principles from financial economics to the literature. Trends like these aside, a good deal of core research in this area also remains ripe for the picking. Because the patent term is, and has been, controlled by an evolving statutory regime, opportunities for natural experiments and event studies abound and, to date, remain largely untapped. Similarly, the patchwork of renewal fees regimes in place around the globe provides ample opportunity for the comparison of firm behavior across borders, only some of which has been examined thus far. Among existing studies as well, many of the most significant were carried out in the 1990s and thus seem overdue for replication with updated data.”
Professor Chien’s chapter (co-authored with David L. Schwartz) is titled Empirical Studies of the International Trade Commission. The chapter explores why the International Trade Commission (ITC), which hears patent cases in which a party seeks injunctive relief from infringing imports, is well-suited for patent law and policy empirical studies. Here is an excerpt from the abstract:
“[W]hile the jurisdiction of Section 337 overlaps with that of federal courts (about 70% of ITC 337 cases have a district court counterpart), many of its procedures distinguish it from the district court, including faster adjudication, streamlined procedures, the lack of a jury and counterclaims, and nearly automatic injunctive relief. These characteristics support an analysis of various institutional design features on party behaviors and outcomes. Second, the long-standing overlap between the jurisdiction of the district courts and ITC provide a case study in the coordination between parallel venues litigating the same dispute, which has become more commonplace in light of the rise of inter partes review proceedings, most of which have a parallel district court filing. Finally, because the ITC’s rules require a domestic injury and the frequent grant of cease and desist orders or exclusion orders (which operate similar to district court injunctions), the ITC has come under policy scrutiny. Some argue that the ITC is unfairly protectionistic, and that patent holders who have had a harder time getting injunctions in district court following the Supreme Court’s eBay decision are forum shopping at the ITC. This chapter describes the features of the ITC and the main policy and theoretical questions that have animated study of the ITC’s 337 authority, what we do and don’t know, and possible directions for future research.”