• workshop on research agenda • motivation:

– complex-product technologies, abstraction, economic disruption

– need for interdisciplinary approach (EPIP)– limitations: avoid domain-specific issues of pharma,

biotech, cleantech, nuclear weapons, etc. – except for comparison

• emphasis on spontaneous interaction– no attribution w/o written permission

• structure….

global

international

national institutions

market/industry

business practice

patents

knowledge

global

international

national institutions

market/industry

business practice

patents

knowledge

SEPs

WTO

PTO, CAFC, ITC, juries

ICT, software, finance

trolls,portfolios,privateers

patents

prior art, disclosure

global

international

national institutions

market/industry

business practice

patents

knowledge

“The U.S. has had a 230-plus year love affair with innovation. It started with our Constitution, in which our Founding Fathers made patents an affirmative right the government is required to grant to anyone who meets the legal requirements.”

former Under Secretary of Commerce for Intellectual Property David Kappos, Stanford Technology Law Review, May 2013

“The land of Intellectual Property Rights is manipulative, predatory and vicious. And here is the best part: it’s managed at the national level.”

Jim Balsillie, ex-RIM (Blackberry)

a public-private system

non-traditional perspectives

• law and economics

• political economy

• applied transaction cost analysis

• institutional/policy design

• complex systems

costs and benefits of knowledge

• technological knowledge– disclosure– prior art

• economic knowledge– needed for decisions on due diligence– managing risk and uncertainty

• mismatch of publication and innovation

– information needed to settle

• legal knowledge– validity and infringement– standards vs rules; jurisdictional limits– assertions vs litigations

relative value

• reasonable royalties calculation driven by SEPs – FRAND not Georgia-Pacific laundry list– Microsoft v. Motorola

• “How many standards in a laptop?”

• How many patents in a standard?

Fontana et al, Reassessing Patent Propensity, 2013

Out of 2802 winners of R&D 100 awards, less than 10% were patented.

“In the last 5 years, Nokia has defended against over 150 patents in Europe. Many were dropped at an early stage. 71 were pursued to judgment. Of those 71, the courts have determined that only one was valid ‐ and even that was later revoked by the EPO.” -- Tim Frain, Nokia, April 2013

public comments by Nokia in context of industry concerns about Europe’s pending unified patent system (which promises to enhance the market for enforcement)

and these are European patents, which are reputedly of higher quality

value of subsidies

• explicitly subsidized examination – $2113 for large companies– creates institutional disincentives to deny

• inability to conclusively deny (continuations)• ex parte examination • burden on examiners to reject• enhanced presumption of validity • no accountability for PTO errors• court system subsidized by public• R&D tax credit, profit-shifting, patent boxes.• American juries (bias against foreign litigants)• availability of ITC against imports

value of subsidies (cont.)

• pleading standards, discovery rules• contingency representation • choice of venue• low standards allow aggressive portfolio use of FUD• innocent infringement • leverage of suing customers and end users • secondary factors of obviousness• functional claiming, indefiniteness (irresolvable

ambiguity)• one size fits all: IT to pharma cross-subsidy?

motives for sovereign/state-supported funds

• commercialize technology– assemble and exploit “sleeping” patents

• defense against foreign aggression– in high-value markets (US, EU soon, China)

• return on investment– no different from SWFs– private aggregators (Intellectual Ventures, Acacia

Research, etc.) directly or via hedge funds and private equity