Copyright (c) 2009 All rights reserved. http://works.bepress.com/katherine_strandburg Recent documents in Katherine J. Strandburg en-us Wed, 26 Aug 2009 09:15:03 PDT 3600 http://works.bepress.com/katherine_strandburg/27 http://works.bepress.com/katherine_strandburg/27 Wed, 26 Aug 2009 09:09:23 PDT This brief essay responds to the very interesting article, "There's No Free Laugh (Anymore): The Emergence of Intellectual Property Norms and the Transformation of Stand-Up Comedy, 94 Va. L. Rev. 1787 (2008), by Dotan Oliar and Christopher Sprigman. Katherine J. Strandburg User and Collaborative Innovation http://works.bepress.com/katherine_strandburg/26 http://works.bepress.com/katherine_strandburg/26 Wed, 26 Aug 2009 07:30:46 PDT As discussed in Wesley Cohen's chapter in this volume, recent empirical studies have documented that scientists experience increasing difficulty obtaining tangible research materials from other scientists, while they express fewer concerns than many had anticipated about do-it-yourself tools that can be made in the laboratory, even when those tools are patented. In this Chapter I use a rational choice model of social norms to elucidate some factors that affect the likelihood that a research community will adopt a sharing norm. Based on those factors, I discuss some means by which sharing of tangible research materials can be encouraged. The analysis focuses attention on the costs to individual researchers of sharing research materials with others in a research community and suggests that sharing norms will be strengthened by initiatives aimed at i) reducing sharing costs through standardization, ii) spreading sharing costs through central distribution, iii) providing rewards in proportion to the extent to which materials are shared, and iv) reducing the private payoffs of exclusivity. Though motivated by studies of sharing of research materials, the analysis also applies to sharing of extensive datasets and tacit knowledge. Katherine J. Strandburg Technology Transfer and University Research Policy User and Collaborative Innovation http://works.bepress.com/katherine_strandburg/25 http://works.bepress.com/katherine_strandburg/25 Wed, 26 Aug 2009 06:59:34 PDT This paper examines commons as socially constructed environments built via and alongside intellectual property rights systems. We sketch a theoretical framework for examining cultural commons across a broad variety of institutional and disciplinary contexts, and we apply that framework to the university and associated practices and institutions. Katherine J. Strandburg User and Collaborative Innovation http://works.bepress.com/katherine_strandburg/24 http://works.bepress.com/katherine_strandburg/24 Wed, 26 Aug 2009 06:49:43 PDT Since the negotiation of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) in 1994, the innovative landscape has undergone dramatic changes due to technological advances in fields such as biotechnology, nanotechnology, and digital communications and computation. The increasing potential for user innovation and open and collaborative innovation has brought an explosion of innovative activity that does not fit into the sales-oriented, mass market model which underlies the global intellectual property regime. In this Article, I argue that the debate over global governance of innovation should be expanded to account more fully for the implications of these changes. For the most part, criticisms of TRIPS have focused on its failure to account adequately for current needs for access to the fruits of innovative activity. In particular, critics have focused on the agreement's failure to balance urgent public health needs appropriately against the marginal boost to pharmaceutical innovation supplied by patent protection in developing countries. Here I take a different (though complementary) tack, focusing on the ways in which TRIPS and related agreements enshrine an unduly narrow approach to innovation itself. An adequate global governance system for innovation must take account of the diversity and dynamism of modes of innovation. I propose a re-imagining of the World Intellectual Property Organization as a broader-based innovation policy organization and a global administrative law approach to accommodate evolving modes of innovation. Katherine J. Strandburg Patent Law User and Collaborative Innovation http://works.bepress.com/katherine_strandburg/23 http://works.bepress.com/katherine_strandburg/23 Wed, 26 Aug 2009 06:42:05 PDT This Article reports an empirical study of the network composed of patent "nodes" and citation "links" between them. It builds on an earlier study, in which we argued that trends in the growth of the patent citation network provide evidence that the explosive growth in patenting in the late twentieth century was due at least in part to the issuance of increasingly trivial patents. We defined a measure of patent stratification based on comparative probability of citation; an increase in this measure suggests that the USPTO is issuing patents of comparatively less technological significance. Provocatively, we found that stratification increased in the 1990s during the "patent explosion." Here we report a further study indicating that the trend toward increasing stratification leveled off beginning around 2000. This observation suggests that there was a de facto tightening of patentability standards well before the doctrinal shifts reflected in the Supreme Court's flurry of patent activity beginning around 2005.We also investigate the possibility that changes in our measure of stratification are due to something other than changes in patentability standards. While not conclusive, our results suggest that neither shifts in predominance of technological areas nor changes in citation practice account for our observations. We have thus identified an apparent puzzle: What happened around 2000 to cause a de facto tightening of patentability standards at the USPTO? Katherine J. Strandburg Patent Law Network Science http://works.bepress.com/katherine_strandburg/22 http://works.bepress.com/katherine_strandburg/22 Wed, 26 Aug 2009 06:28:20 PDT In this essay, I consider norms of sharing research tools and materials in what has been called Pasteur's Quadrant, in which basic science and applied research overlap. I employ a user innovation paradigm, along with a rational choice approach to social norms, to address the issue. The convergence of academic research with commercial interests has two different types of consequences for sharing norms. First, a research tool or material developed in a nonprofit research context may be a dual-purpose innovation with both research and nonresearch uses. Thus, for example, a genetic assay may be useful in research and as a clinical diagnostic test; many chemicals are used in the laboratory and in industrial processes; many imaging techniques have laboratory and commercial applications; and so forth. Second, the overlap of research interests between nonprofit and industry scientists means that the user community for research tools and materials in Pasteur's Quadrant is more diverse than in areas of purely basic research. Both of these types of overlap affect the robustness of research tool sharing norms. The social norm analysis presented here predicts that the viability and robustness of practices of sharing research tools and materials depends on the differing preferences of academic and industry scientists, on whether a tool is do-it-yourself or requires access to a specific material, and on whether the tool is a garden variety research tool or a dual-purpose tool with a significant nonresearch market. To understand sharing practices, empirical studies should seek to disentangle these variables. Policy prescriptions for enhancing sharing also should account for these factors. Katherine J. Strandburg Technology Transfer and University Research Policy User and Collaborative Innovation http://works.bepress.com/katherine_strandburg/21 http://works.bepress.com/katherine_strandburg/21 Wed, 26 Aug 2009 06:15:56 PDT This Article sets out a framework for investigating sharing and resource pooling arrangements for information and knowledge-based works. We argue that the approach to commons arrangements in the natural environment pioneered by Elinor Ostrom and collaborators provides a template for examining the construction of commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environments in which they are embedded, in relation to information and knowledge resources that they produce and use, and in relation to one another.An improved understanding of cultural commons is critical for obtaining a more complete perspective on intellectual property doctrine and its interactions with other legal and social mechanisms for governing creativity and innovation. The proposed approach would draw upon case studies from a wide range of disciplines. Among other things, we argue that a theoretical approach to constructed cultural commons should consider rules pertaining to membership criteria, contribution and use of pooled resources, internal licensing conditions, management of external relationships, and institutional forms, along with the degree of collaboration among members, sharing of human capital, degrees of integration among participants, and whether there is a specified purpose to the arrangement. Katherine J. Strandburg User and Collaborative Innovation http://works.bepress.com/katherine_strandburg/19 http://works.bepress.com/katherine_strandburg/19 Mon, 16 Jun 2008 18:53:42 PDT The authors develop an informal model of the impact of the nonobviousness standard on the choice of research projects. Previous models assume that the basic question confronting a researcher is, "Shall I produce this particular invention?" More realistically, the authors think a researcher asks, "Which research path shall I pursue?" The model shows that a patent serves as a carrot to induce the choice of more difficult projects than would be pursued under the no-patent alternative. The nonobviousness standard serves as a stick to prod researchers to choose even more difficult projects. The results of the model help us understand why a fact-intensive issue like obviousness is a question of law. The model also helps us understand the optimal relationship between the nonobviousness standard and patentable subject matter exclusions. Commentators often suggest subject-matter exclusions are unnecessary if the nonobviousness standard is used appropriately. The authors' model suggests this intuition is wrong for inventions characterized by large social spillovers and high social costs of patenting; a simple subject matter exclusion would be more efficient. Michael J. Meurer Patent Law http://works.bepress.com/katherine_strandburg/18 http://works.bepress.com/katherine_strandburg/18 Thu, 22 May 2008 22:20:37 PDT This Article uses a simplified rational choice theory of social norms to illuminate the circumstances in which a norm of sharing is likely to arise among "user innovators" who invent technologies for their own use. It then evaluates the issue of sharing of scientific research tools in this light, focusing on the effects of patenting and of the convergence of academic and commercial research in the life sciences. It then discusses the potential for policy changes to promote sharing norms in the diverse community of research tool innovators. Katherine J. Strandburg Technology Transfer and University Research Policy http://works.bepress.com/katherine_strandburg/17 http://works.bepress.com/katherine_strandburg/17 Thu, 22 May 2008 15:32:54 PDT Recent controversies about the National Security Agency's warrantless wiretapping of international calls have overshadowed equally disturbing allegations that the government has acquired access to a huge database of domestic call traffic data, revealing information about times, dates, and numbers called. Although communication content traditionally has been the primary focus of concern about overreaching government surveillance, law enforcement officials are increasingly interested in using sophisticated computer analysis of noncontent traffic data to "map" networks of associations. Despite the rising importance of digitally mediated association, current Fourth Amendment and statutory schemes provide only weak checks on government. The potential to chill association through overreaching relational surveillance is great. This Article argues that the First Amendment's freedom of association guarantees can and do provide a proper framework for regulating relational surveillance and suggests how these guarantees might apply to particular forms of analysis of traffic data. Katherine J. Strandburg Information Privacy Law