1,720,967 research outputs found
Regulation of Book Markets
Get PDFOver the years, many European countries have regulated their national book markets. Chief among the regulatory schemes is the resale price maintenance (“RPM”) regime, under which booksellers must offer books for a fixed price for a limited time period. The suggested rationales for this legal regime are mainly: (1) viewing books as cultural goods that deserve special treatment; (2) advancing diversity in the book market; (3) creating a wide distribution of and accessibility to books; and (4) supporting small booksellers. This Article explores the normative rationales for the RPM regime’s adoption and design in book markets. The RPM regime has been discussed and analyzed using a positive economic framework, but its application in reality has been missing a normative theoretical basis. This Article demonstrates that absent such a theoretical basis, policymaking is meaningless. Policymakers as well as courts cannot solely rely on positive economic analysis. Normative analysis is inevitable. This Article explores the missing normative analysis of RPM regimes in the context of book markets. It exposes an important blind spot in regulatory policy and judicial judgment. Lastly, the normative framework introduced in this Article may prove relevant for American RPM arrangements. Since American antitrust scrutiny of RPM schemes recently transformed from a per se rule to a rule of reason analysis, American policymakers and courts are expected to encounter a new wave of resurfacing RPM schemes
Recalibrating Patent Protection for COVID-19 Vaccines: A Path to Affordable Access and Equitable Distribution
No full textFair Use as a Market Facilitator
Get PDFThe Digital Age has enabled individuals worldwide to store, organize, and share everything from cherished memories embodied in photographs and videos to academic writing and correspondence. Yet, archived collections of academic, public, and private libraries are out of reach to many, and many books are now beyond reach because they are no longer in print. The high cost of digitization exacerbates these challenges.
In 2004, Google Inc. responded to these issues by announcing a project to scan and digitize the collections of several leading universities and public libraries (the “Google Books” project). The project offered users the opportunity to search the entire corpus of scanned works. For works still under copyright, users could view only snippets sufficient to give them a taste of the complete work; users interested in accessing the full text could, however, buy the books from the publisher directly through links that the system provides.
Several authors and publishers filed suit in the Southern District of New York, arguing that the Google Books project infringed their copyrights in their works. The district court held that allowing users to search unauthorized digital copies of the works and see snippets from those works was noninfringing fair use. The Second Circuit affirmed. The courts reasoned that the purpose of the copying was highly transformative, the public display of text was limited, and the project did not provide a significant market substitute for the protected aspects of the original works.
This article explores the effects of these decisions, arguing that the fair use holding played a major role in facilitating the creation of markets for archiving copyrighted works. This market facilitation role is atypical of the fair use defense’s usual role and arguably fails fully to account for the effect that the use could have upon the potential market for—or value of—the copyrighted work. This article will explore the fair use defense’s unexpected market facilitation role and suggest that it should be carefully considered by courts, especially in light of the rationales underlying the fair use defense, which focus mainly on market failure and freedom of speech
Recalibrating Patent Protection for COVID-19 Vaccines: A Path to Affordable Access and Equitable Distribution
Get PDFA safe and effective COVID-19 vaccine is the holy grail of our generation, necessary to resurrect our societies, save millions of lives, and protect our economies from collapse. Patent protection is the primary legal mechanism for ensuring timely development of such a vaccine. The patent system is designed to create the necessary incentives for private parties to invest in developing the vaccine, knowing they will enjoy the fruits of their success. Indeed, patent protection is necessary to promote human knowledge generally as well as a quick, safe, and effective COVID-19 vaccine.
Yet in reality, patent law may be obstructing the very goal it is intended to achieve. Patent law grants exclusive rights to inventors, enabling them to charge supracompetitive prices, delaying the distribution and dissemination of emerging technologies. In the context of the COVID-19 vaccine, patent protection means that vaccines will be financially out of reach for many. This produces a paradoxical result: rather than promote technological advancement for the public good, patent protection impedes it. Since universal immunity is necessary in the fight against the pandemic, delays in vaccine distribution can be catastrophic, costing millions of lives and carrying devastating economic consequences.
This Article therefore proposes a novel, alternative patent regime, designed to overcome this paradox at the heart of patent law. We propose a mechanism that will eliminate the problem of overprotection of patent rights that exists under current patent law, while still providing sufficient incentive for inventors to invest in innovative efforts. Under our proposed regime, the developer of a new vaccine will be granted a patent protecting its invention, but this patent will expire once the patentee has recouped its investment, plus a handsome profit. This regime, which we term “recoupment patent,” ensures that inventors are rewarded appropriately—but not excessively—for their innovative efforts. The result is a structure that encourages innovation while minimizing the time it takes for life-saving inventions to reach the public domain. We compare the proposed regime with other suggestions for reforming the patent system, including compulsory licensing; government incentives such as grants, subsidies, and prizes; and altruistic initiatives such as private-public partnerships, patent pools, and patent pledges. We highlight the recoupment patent model’s advantages over these alternatives
Registry Systems as Gatekeepers: How Patent Registries Create Systemic Barriers to Innovation
Get PDFPicture an inventor. Anyone at all. We bet you imagined a man, is that right? If you did, that’s not surprising—our study of over 140,000 patent applications reveals that three out of four patents name all-male inventors, and only three percent of patents represent the inventions of women-only teams. But this massive gender gap is not just about who chooses to invent—it’s about who gets to protect their innovations through the patent system.
This Article presents groundbreaking evidence that women face systemic barriers in securing patents, even when they clear the hurdles to become inventors. Drawing on an unprecedented dataset spanning four major patent offices (USPTO, EPO, WIPO, and IPO), we find that patent applications from teams with female inventors are significantly less likely to be granted than those from all-male teams—even when controlling for technology field, team size, and filing location. Moreover, when women secure patents, their innovations receive fewer citations from future inventors, suggesting their contributions are routinely undervalued.
These findings challenge the conventional wisdom that gender gaps in patenting reflect the underrepresentation of women in technical fields. Instead, our data reveal how the patent system itself, through high costs, complex procedures, and human discretion in examination, creates additional barriers for women inventors. This matters because patents are more than mere pieces of paper—they’re crucial tools for attracting investment, building companies, and shaping technological progress.
Previous studies have offered glimpses of these disparities by looking at single patent offices or global averages. Our multi-jurisdictional analysis provides the first comprehensive picture of how patent systems worldwide may be stifling women’s innovations. The implications are stark: when patent systems disproportionately exclude women inventors, we all lose out on potential breakthroughs and economic growth.
To address these systemic barriers, we propose specific reforms to make patent systems more accessible and equitable. These include procedural changes to reduce examiner bias, expanded support for underrepresented inventors, and—most ambitiously—a new “unregistered patent” system that could provide baseline protection while reducing entry barriers. At stake is not just fairness in innovation, but the future of technological progress itself
Unregistered Patents
Get PDFAlthough all should be treated equally under the law, patent law has long been known to favor some less than others. Patentable technology is highly heterogeneous, covering everything from minute improvements in electronics to pioneering new artificial organs, but patent protection itself is purely a one-size-fits-all system. Patents thus overreward some while underrewarding others. On the one hand, patents overreward low-investment, low-value inventions by granting them the same twenty-year term of protection as those that required much higher investments and yield much higher social value. The resulting glut of low-quality patents has contributed greatly to the “patent crisis” of opportunistic “patent trolls,” heightened transaction costs, and costly litigation that have ultimately stalled innovation. On the other hand, patents also underreward in two significant ways. First, patents often fail to give some high-investment, high-value inventions enough protection. Second, many inventors are shut out from patent protection altogether if they lack the resources necessary to navigate the patent system’s costly, complex, and frequently biased examination process. This latter phenomenon disproportionately affects female and minority inventors, among others, thereby creating significant distributive effects.
This Article argues that both of these effects—the overprotection of low-value inventions and the underprotection of inventions by women and minorities—could be alleviated by altering one particular but seldom-appreciated aspect of the patent system’s one-size-fits-all approach: its registration-only design. Copyright and trademark law allow for both registered and unregistered rights, but the patent system grants rights only to those who register their inventions and undergo subsequent examination. If the patent system were to follow the two-tiered approach of copyright and trademark law, however, and implement a regime of automatic but very limited unregistered rights in addition to registered rights, it could help address both problems. First, providing a much lower-cost alternative for obtaining protection, such a two-tiered regime could, with varying degrees of aggressiveness, channel low-investment, low-value inventions away from the system-clogging overprotections of the full, twenty-year, broad rights currently granted to registered patents. Second, as the authors of this Article have previously argued, by providing automatic rights without having to go through the resource-intensive registration and examination process, unregistered patent protection could help women and other disadvantaged inventors gain greater access to patent protections. Maintaining a two-tiered regime of both registered and unregistered patent rights thus offers a promising way to mitigate the inefficiencies of the current system by attenuating certain aspects of the current patent crisis while promoting a more egalitarian playing field for inventors
Going Beyond Counting First Authors in Author Co-citation Analysis
Get PDFThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
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