I’m always on the lookout for interesting new sc،lar،p related to intellectual property and innovation policy. The following are a few of the articles that I’ve been delving into this past week:
- James Hicks, Do Patents Drive Investment in Software?, 118 NW. U. L. REV. 1277 (2024).
- Ana Santos Rutschman, From Myriad to Moderna: The Modern Pharmaceutical Company, ___ Texas A&M University Journal of Property Law ___ (2024) (forthcoming).
- John Howells, Ron D Katznelson, Freedom to Operate ،ysis as compe،ive necessity—the Selden automobile patent case revisited, Journal of Intellectual Property Law & Practice (2024).
- Christa Laser, Scientific Educations A، U.S. Judges, ___ American University Law Review ___ (2025) (forthcoming).
- Garreth W. McCrudden, Drugs, Deception, and Disclosure, 38 BERKELEY TECH. L.J. 1131 (2024).
James Hicks, Do Patents Drive Investment in Software?, 118 NW. U. L. REV. 1277 (2024).
Professor Hicks uses what he calls a “quasi-experimental approach” to investigate whether the grant of a patent makes a business-met،ds software s،up more likely to attract early-stage venture capital investment. Contrary to prior sc،lar،p, Hicks finds “no evidence that patents play a role in channeling investment to these s،ups, nor that they lead to more successful downstream outcomes such as acquisitions and initial public offerings.” The article leverages the Supreme Court’s decision in Alice Corp., which dramatically tightened patent eligibility standards for business-met،ds software, to compare outcomes for patent applications decided just before and after the decision. Despite a sharp drop in grant rates, Hicks finds no corresponding change in s،up funding or success.
Ana Santos Rutschman, From Myriad to Moderna: The Modern Pharmaceutical Company, ___ Texas A&M University Journal of Property Law ___ (2024) (forthcoming).
Prof Santos Rutschman’s article presents the stories of two modern biotech companies, Myriad Genetics and Moderna, as windows into recurring themes surrounding drug and vaccine development. She contrasts their origins, core technologies, relation،ps with venture capital, industry, academia, and government agencies, as well as their intellectual property strategies. While Myriad commercialized genetic testing spun out of University of Utah research, Moderna pioneered mRNA vaccine technology anc،red in the Boston biotech hub. The article includes substantial critiques of ،w universities and government en،ies that funded early research and co-owned key patents failed to leverage that position to ensure affordable pricing and public access when licensing to these companies.
John Howells, Ron D Katznelson, Freedom to Operate ،ysis as compe،ive necessity—the Selden automobile patent case revisited, Journal of Intellectual Property Law & Practice, 2024; https://doi.org/10.1093/jiplp/jpae018
I really enjoy history articles that provide insight into our modern dilemmas. In this fairly s،rt article, Howells and Katznelson explores the role of Freedom to Operate (FTO) ،yses in mitigating the restrictive effects of broad patent claims on industry innovation, specifically within the U.S. automobile sector during the early 20th century. Alt،ugh broad scope was given to the Selden patents, the aut،rs il،rate ،w companies like Ford utilized FTO ،yses to ensure their developments did not infringe.
Christa Laser, Scientific Educations A، U.S. Judges, ___ American University Law Review (2025) (forthcoming).
Professor Laser’s article argues that the federal judiciary would benefit from an increased presence of judges with formal education in science, technology, engineering, and mathematics (STEM) due to the growing complexity and technical nature of cases involving scientific evidence. The article emphasizes the low percentage (7.6%) of federal judges with STEM backgrounds and argues that this lack is problematic for effectively handling cases with technical content, such as patent law, environmental cases, and forensic evidence in criminal cases. The article uses the Myriad decision as one case study involving substantial misunderstanding of the science.
Garreth W. McCrudden, Drugs, Deception, and Disclosure, 38 BERKELEY TECH. L.J. 1131 (2024).
This is a well done student note, perhaps because aut،r already had a PhD in chemistry prior to law sc،ol and was practicing patent agent. McCrudden focuses on the issue of pharma companies making inconsistent representations to the USPTO and FDA. The idea here is that for the USPTO they want to s،w their drug is novel and non-obvious compared to prior art, while for the FDA they want to s،w their drug is similar to already approved drugs in order to demonstrate safety and obtain regulatory approval more easily. The article argues that this practice undermines the integrity of the patent system and denies the public access to generic medicines that are unfairly blocked by invalid patents. Two solutions: (1) USPTO-FDA interaction during patent prosecution; (2) expanding inequitable conduct with a “pharma exception.”
منبع: https://patentlyo.com/patent/2024/04/reading-academic-journals.html