Narrative and Belonging: The Politics of Ambiguity, The Jewish State, and the Thought of Edward Said and Hannah Arendt

At the core of this thesis, I examine the difficulties of giving an account of oneself in modern associational life. By integrating the theory and political activism of both Edward Said and Hannah Arendt, I follow the Zionist response to European antisemitism and the Palestinian responses to Jewish settler colonialism. Both parties struggle against their ambiguous presence within local and regional hegemonic social taxonomy, and within the world order. Contemporarily, this struggle takes place in the protracted conflict between Israeli and local Arab groups, which has been managed through violence and objectification, as opposed to allowing the dynamism and reconfiguration of political subjectivities. In their later writings, Arendt and Said respond to the violence and resentment that arises from the form of the nation-state by prescribing, and arguably practicing, an understanding of politics where the “other” is constitutive of the “self.” By seeing this relation of alternity as the contemporary heir to diasporic Judaism and Jewish cosmopolitanism, I argue that this project holds the historical traction to reinvigorate the future beyond static and growing violence and dispossession

Cumulative Innovations : Intellectual Property Regimes and Incentives to Innovate

When innovations are both sequential and complementary as in the software or the semi-conductor industries, James Bessen and Eric Maskin (2002) argue that patents are likely to reduce firms ’ incentives to innovate as compared to a regime with no protection. We develop a model close to that of Bessen and Maskin except that we endogenize the probability of success of each innovation (firms choose their R&D investments, reflecting the incentives to innovate and determining the success probability of an R&D program) and introduce an explicit model of a copyright. Our main results contradict Bessen and Maskin: individual and aggregate R&D ∗We thank Matti Liski, Pauli Murto, Otto Toivanen, and Juuso Välimäki for help and useful comments

What Patent Attorney Fee Awards Really Look Like

This Essay provides an empirical account of attorney fee awards over the last decade of patent litigation. Given the current attention in legislative proposals and on the Supreme Court’s docket to more liberal fee shifting as a check on abusive patent litigation, a fuller descriptive understanding of the current regime is of utmost importance to forming sound patent-litigation policy. Following a brief overview of judicial experience in patent cases and trends in patent-case filing, this study presents analysis of over 200 attorney fee award orders from 2003–2013

On the Continuing Misuse of Event Studies: The Example of Bessen and Meurer

In their book, Patent Failure: How Judges, Bureaucrats, and Lauyers Put Innovators at Risk, James Bessen and Michael Meurer present an empirical assessment of the costs and benefits of patent protection. Their conclusion is startling. For most industries, the availability of patents discourages innovation. According to Bessen and Meurer, patents benefit innovators by providing exclusivity and thereby enabling an innovator to capture more rents or profits from their innovation than they could with lead-time or other market mechanisms alone. While innovators can obtain rents from their own Patents, they also face the threat of infringement litigation from Patents held by others whenever they introduce new products. The availability of patents to others means that innovators also face the threat of patent litigation from others whenever they introduce new products or services. According to Bessen and Meurer, the benefits of patents to innovators remained roughly constant or rose only slightly during the 1990s. The costs of the patent system, in contrast, rose sharply. During the 1990s, the number of patent lawsuits filed in district courts tripled, increasing the risk of innovators being sued for patent infringement. When Bessen and Meurer multiplied this increased risk of being sued by the true cost of patent litigation, which they estimated using an event study, they found that, aside from the chemical and pharmaceutical industries, the costs of patents to innovators outweigh the benefits of patents. While I am generally sympathetic to Bessen and Meurer\u27s analysis and their recommended reforms, I am deeply troubled by their use of a stock market event study to establish the true cost of patent litigation. Although others have used a similar technique, this approach suffers from a fatal flaw: It treats a loss in market capitalization-a loss to the firm\u27s shareholders-as if it either is, or measures, a loss to the firm itself. Obviously, a loss in market capitalization, which is what an event study estimates, is not itself a loss to the firm. It is a loss to the firm\u27s shareholders. Moreover, while we can construct a theory of share prices under which a change in market capitalization directly measures a corresponding change in the discounted present value of the firm\u27s expected future earnings, this theory does not survive empirical testing. To the contrary, what empirical testing has repeatedly shown is that the change in market capitalization associated with certain kinds of bad news, such as the filing of a lawsuit, exceeds, often by an order of magnitude, any reasonable estimate of the capitalized loss in the firm\u27s expected future earnings associated with the bad news. We cannot, therefore, have much confidence in Bessen and Meurer\u27s ultimate conclusion that the patent system has become a net disincentive for innovation. Nonetheless, it is undoubtedly true that the costs of the patent system to innovators rose during the 1990s. More patent lawsuits were filed, and the legal costs of defending against a claim of patent infringement rose. Further, as Bessen and Meurer show, the risk of being sued for patent infringement is not restricted to copyists, cheats, and thieves, but applies generally to anyone who introduces innovative goods. Due to an inability to sufficiently identify relevant patents-a phenomena Bessen and Meurer denote a failure of patent notice -even innovative companies may inadvertently find themselves guilty of patent infringement. This is a compelling story, and Bessen and Meurer offer some plausible solutions for it. Yet, they are trying to offer something more. As the authors explain, they seek to move[ ] beyond anecdote to provide the first comprehensive empirical evaluation of the patent system\u27s performance. Unfortunately, without the event study to estimate the costs of the patent system, their attempt to establish empirically the patent system\u27s problems falls apart. What\u27s left is a story-a compelling story from my perspective, to be sure-but just one more story based upon anecdote. As a result, the criticism with which they begin their book applies to their work as well: It is hard to tell who is right, however, because most evidence offered in support of these positions is anecdote, if not myth . . . .

A Comment on “Do Patents Facilitate Financing in the Software Industry?”

“Do Patents Facilitate Financing in the Software Industry?” by Ronald J. Mann contributes empirical evidence to our understanding of how software startups use patents. However, a close examination of the actual empirical findings in this paper points to rather different conclusions than those that Mann draws, namely: few software startups benefits from software patents and patents are not widely used by software firms to obtain venture financing. Indeed, among other things, the paper reports that 80% of venture-financed software startups had not acquired any patents within four years of receiving financing.

Patent Thickets: Strategic Patenting of Complex Technologies

Patent race models assume that an innovator wins the only patent covering a product. But when technologies are complex, this property right is defective: ownership of a product’s technology is shared, not exclusive. In that case I show that if patent standards are low, firms build “thickets” of patents, especially incumbent firms in mature industries. When they assert these patents, innovators are forced to share rents under cross-licenses, making R&D incentives sub-optimal. On the other hand, when lead time advantages are significant and patent standards are high, firms pursue strategies of “mutual non-aggression.” Then R&D incentives are stronger, even optimal.

Knowledge diffusion under patent with asymmetric firms

We show that if patent protection and trade secrecy generate asymmetric market structure, an innovator may prefer patent protection than trade secrecy even if the diffusion probability is higher under the former but it increases market concentration by preventing some imitators. So, whether an innovator prefers patent protection or trade secrecy depends on the trade-off between the diffusion probability and market concentration.

Improving (Software) Patent Quality Through the Administrative Process

The available evidence indicates that patent quality, particularly in the area of software, needs improvement. This Article argues that even an agency as institutionally constrained as the U.S. Patent and Trademark Office (“PTO”) could implement a portfolio of pragmatic, cost-effective quality improvement strategies. The argument in favor of these strategies draws upon not only legal theory and doctrine but also new data from a PTO software examination unit with relatively strict practices. Strategies that resolve around Section 112 of the patent statute could usefully be deployed at the initial examination stage. Other strategies could be deployed within the new post-issuance procedures available to the agency under the America Invents Act. Notably, although the strategies the Article discusses have the virtue of being neutral as to technology, they are likely to have a very significant practical impact in the area of software