Introduction: The Path of IP Studies: Growth, Diversification, and Hope

John M. Golden, Robert P. Merges & Pamela Samuelson

92 Texas L. Rev. 1757

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The U.S. Supreme Court has officially declared that we now live in the “Information Age.” Intangible assets are estimated to account for nearly seventy five percent of the value of publicly traded companies. Innovation, a form of “information in action,” has been recognized as vital to economic growth. This increase in the importance of innovation and information has inevitably led to concern with intellectual property. Despite this concern, empirical evidence about how the IP regime operates and its potential for reform has been frustratingly sparse.

This introduction to the University of Texas School of Law Symposium on Evidence-Based IP discusses the progression of IP based research and scholarship to better set the stage for the discussion of a more empirically-based focus in IP related research.

Understanding the Realities of Modern Patent Litigation

John R. Allison, Mark A. Lemley & David L. Schwartz

92 Texas L. Rev. 1769

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Sixteen years ago, John Allison and Mark Lemley published the first detailed empirical look at patent litigation. In this Article, with the help of Professor Schwartz, they update and expand the earlier study with a new hand-coded data set. They evaluate all substantive decisions rendered by any court in every patent case filed in 2008 and 2009—decisions made between 2009 and 2013. They consider not just patent validity but also infringement and unenforceability. Moreover, they relate the outcomes of those cases to a host of variables, including variables related to the parties, the patents, and the courts in which those cases were litigated. The result is a comprehensive picture of the outcomes of modern patent litigation, one that confirms conventional wisdom in some respects but upends it in others. In particular, they find a surprising amount of continuity in the basic outcomes of patent lawsuits over the past twenty years, despite rather dramatic changes in who brought patent suits during that time.

The (Still) Shaky Foundations of Trade Secret Law

Robert G. Bone

92 Texas L. Rev. 1803

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Trade Secret law is a strange member of the intellectual property family with its goal to protect secrecy and liability rules that focus on the method of appropriation. In this article, Professor Bone furthers his view that trade secrets should not have a body of law distinct from other legal theories. He begins by briefly describing trade secret law and rehashing the main points of his 1998 article, where he first expressed that trade secret law should not be distinct. He then critically examines the arguments advanced by trade secrecy supporters since 1998. Finally, he explores the question of how best to handle the problem of limited empirics in general and in the context of trade secret law.

Beyond the Incentive-Access Paradigm? Product Differentiation & Copyright Revisited

Oren Bracha & Talha Syed

92 Texas L. Rev. 1841

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In recent years, the “product differentiation” theory has become an important component of copyright-policy analysis. Given the problems inherent in the traditional theory, grounded in a framework known as the incentive-access paradigm, used for copyright-policy analysis, product differentiation could offer a more structured understanding of how copyright laws can increase innovation. In this article, Professors Bracha and Syed reevaluate the product differentiation theory as applied to copyright law. They develop an analytic framework of “inframarginal” and “supramarginal” parameters of copyright protection, which integrates disparate strands of economic analysis of copyright into a single coherent whole. They further try to clarify and correct many of the concerns that have been raised about the product differentiation theory. They then evaluate the copyright-policy reforms that have been advanced on the basis of the product differentiation theory. Finally, they offer their own assessment of what policy prescriptions most plausibly follow from product differentiation analysis.

Experimental Tests of Intellectual Property Laws’ Creativity Thresholds

Christopher Buccafusco, Zachary C. Burns, Jeanne C. Fromer & Christopher Jon Sprigman

92 Texas L. Rev. 1921

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Despite the fact that Copyright and Patent law are both meant to encourage the production of new creative works and inventions, they have separate thresholds of proof necessary to determine whether some new creation is sufficiently innovative to merit legal protection. In this article, Professors Buccafusco, Burns, Fromer, and Sprignman present their results from a series of experiments meant to determine what affect these different thresholds have on innovation and creativity. Specifically, they test whether the existence of a creativity threshold that conditions entry into a prize lottery on meeting certain performance standards affects how creative people are. Professors Buccafusco, Burns, Fromer, and Sprigman report four original experiments designed to measure the effects of different thresholds on creativity. They then discuss the implications of their findings for IP law and for creativity and innovation more generally.Further, they contribute to the growing debate of whether the copyright threshold should be raised to further stimulate creativity.

Copyright’s Topography: An Empirical Study of Copyright Litigation

Christopher A. Cotropia & James Gibson

92 Texas L. Rev. 1981

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One of the most important ways to measure the impact of copyright law is through empirical examination of actual copyright infringement cases. Yet scholars have universally overlooked this rich source of data. In this Article, Professors Cotropia and Gibson present a study that fills this gap through a comprehensive empirical analysis of copyright infringement litigation, examining the pleadings, motion, and dockets from more than nine hundred copyright lawsuits filed from 2005 through 2008. Using this data, Gibson and Cotropia examine a wide variety of copyright issues, such as the rate of settlements versus judgments; the incidence of litigation between major media companies, small firms, and individuals; the kinds of industries and works involved in litigation; the nature of the alleged infringement; the success rates of particular parties and claims; and the nature of remedies sought and awarded. They also analyze the data to identify ways in which copyright litigation differs from other civil suits and to show that certain plaintiff characteristics are more predictive of success.

Trademark Surveys: An Undulating Path

Shari Seidman Diamond & David J. Franklyn

92 Texas L. Rev. 2029

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Currently, when a plaintiff alleges trademark infringement or claims that false advertising is likely to confuse or deceive, proof of consumers’ reactions to an advertisement is largely presented through the use of systematic survey evidence. While these surveys can be effective tools, several scholars have questioned the role that these surveys actually play in trademark cases. Using a survey that investigated how attorneys in the United States and internationally use surveys in trademark litigation, Professors Diamond and Franklyn examine the role these surveys play in trademark litigation. In this article, Professors Diamond and Franklyn provide a description of the primary legal topics that appear in trademark and deceptive advertising surveys. They then review the recent studies that investigate the presence and influence of surveys in reported infringement decisions. They examine a sample of cases that did not include survey evidence to assess why surveys are or are not submitted in trademark cases. Finally, they offer an explanation of why surveys may be underrepresented in reported cases, and when surveys succeed and fail as persuasive evidence.

Litigation in the Middle: The Context of Patent-Infringement Injunctions

John M. Golden

92 Texas L. Rev. 2075

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With the advent of the “Information Age,” most judges, lawmakers, and scholars tend to focus on high tech fields when discussing U.S. patent law. However, in this article, Professor Golden suggests that there may be substantial commonalities between the subject matter of present-day patents and the subject matter of patents typical of the Industrial Revolution. While performing an empirical study, Professor Golden found that many of the patents issued today cover relatively straighforward “machines and manufactures” and, further, that these simple patents play a disproportionate role in the granting of injunctive relief by U.S. district courts. These relatively mundane cases are surprising given the conventional view that patent litigation involves high stakes and costs. Professor Golden explores the implications of this discovery by first using a rational profit-maximizer model to confirm the commonly invoked bases for the view that patent litigation involves high-stakes. He then discusses the nature and contents of a patent-infringement injunction data set. Finally, Professor Golden explores potential explanations for the frequent mundanity of the subject matter targeted by injunctions in that data set.

Trademarks as Search-Engine Keywords: Who, What, When?

David A. Hyman & David J. Franklyn

92 Texas L. Rev. 2117

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Most Internet searches result in unpaid (organic or algorithmic) results, and paid ads. The specific ads that are displayed are dictated by the user’s search terms (“keywords”). In 2004, Google began offering trademarks for use as keywords on an unrestricted basis, followed in due course by other search engines. Once that happened, any entity (including sellers of competing products) could have their ads appear in response to a search for the trademarked product. Trademark owners responded by filing more than 100 lawsuits in the United States and Europe, making the dispute the hottest controversy in the history of trademark law. Litigation has focused on purchases by competitors—giving the impression that competitors account for a large portion of such purchases. In this article, Professors Hyman and Franklyn present data showing that competitors account for a relatively small percentage of keyword purchases, and many trademark owners purchase their own marks as keywords. They also find a high degree of fluctuation in the number of paid ads and the domain names to which those ads are linked. They conclude that the risk of widespread abuse is low. Trademark owners’ objections seem to have more to do with objections to free riding than with the zone of interests currently protected by U.S. trademark law.

The Idiosyncrasy of Patent Examiners: Effects of Experience and Attrition

Ronald J. Mann

92 Texas L. Rev. 2149

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Many outspoken critics of the current patent system have argued that the decline in the quality of patents could undermine the competitiveness of the national economy. In recent years, these arguments have begun to focus attention on the role of examiners in the patent process. If examiners differ from each other in how they approach applications, then they introduce arbitrariness into the process. In this article, Professor Mann offers a deeper look into this idiosyncrasy among patent examiners. Using data collected by the National Bureau of Economic Research and by the Patent Office itself, Professor Mann is able to come to three important conclusions. First, that past scholarly articles have overemphasized the importance of an examiner’s experience. Second, that the effects of tenure substantially affect the quality of the patents that an examiner produces. Finally, that education affects the work of examiners in important ways.