Innovation is an inherently uncertain process. Success is typically coupled with risk and we can only hope that those with great ideas will persevere. To encourage innovation, society reduces some of the innovation risk through structures like funding systems, regulation, and of course intellectual property rights. But what happens when uncertainty strikes the legal protection devices themselves? Faced with unclear rules and increasingly speculative rewards, some innovators may simply stop playing the game. Such uncertainty has recently been a topic of great concern in the U.S. patent system. Some believe that the suddenly unknowable nature of fundamental questions like what is patentable has had the effect of dramatically undermining legal incentives. Others question whether a crisis really exists. They point out that uncertainty can have positive effects, and even, be a source of strategic advantage. How can we tell good uncertainty from bad? This article provides a novel framework for evaluating patent uncertainty that explains how complaints and complacency can exist contemporaneously. It draws on the behavioral economics literature to provide a deeper understanding of how innovators react to unknown legal environments. Based on this analysis, the article identifies three different types of legal uncertainty: (1) investment-killing; (2) if-then; and (3) remedial uncertainly. It asserts that only the first creates a problem that must be addressed by legal reform, while the others are actually essential to a healthy innovation system. The article concludes with specific prescriptions for addressing negative uncertainty that depend on both firm and policymaker action.
This article explores the anomalous ways in which copyright owners may control use of works they publicly display. Treatment of rights associated with publicly displayed sculpture and architecture are dramatically different. The copyright statute deprives owners of copyrights in constructed buildings of the ability to police the ways in which imagery or other uses of the publicly visible structure may be exploited by others. This article focuses on three related but different settings involving the public display of (1) a work of graffiti, (2) a large-scale sculpture, and (3) a building with sculptural features. Through an analysis of the differences in their treatment, this article investigates problems in extant law and suggests potential resolutions of the issues.
The release of documents in recent legal battles between elite collegiate institutions and the Students for Fair Admissions, a nonprofit group seeking to eradicate the consideration of race in university admissions, has brought to question measures taken by the universities to shield information relating to their admissions processes from public view. These materials included admissions training materials, procedures for evaluating applications, and admitted applicant profiles and statistics. An examination of the universities’ justifications to prevent public disclosure of this information provides insight into their varying reliance on intellectual property protections derived for trade secrets. These varying justifications help illustrate the complex, ever-changing nature of trade secret law, in which even the baseline determination of what may properly constitute a trade secret often remains an open question. The SFFA cases further highlight how this ambiguity provides fertile grounds for entities with commercial interests to strain the boundaries of trade secret law to cover business information that, if disclosed to the public, threatens reputational harm but which may not otherwise rise to the level of trade secret.
The International Trade Commission (ITC) is a quasi-judicial federal agency that is responsible for investigating unfair trade practices. Although the ITC is widely believed to be an expert court in patent law, it is often criticized for its role in the field. This paper advances a novel analysis of the overlooked contributions of the ITC to the development and enforcement of patent law. By exploring the background of the ITC, the procedural advantages it offers, and the ways it substantively enriches patent law doctrine, this article concludes that the ITC is an important player in patent law.