Of Green Tulips and Legal Kudzu: Repacking Rights in Subpatentable Innovation

How to enable entrepreneurs to appropriate the fruits of their investments in cumulative and sequential innovation\u27 without impeding follow-on innovation and without creating barriers to en- try has become one of the great unsolved puzzles that the law and economics of intellectual property rights needs to address as the new millennium gets underway. This Article draws briefly from my earlier works to identify some of the key historical difficulties en- countered in protecting small grain-sized innovations that do not rise to the level of novel and nonobvious inventions or original and creative works of authorship. It then re-examines these difficulties through the lens of a hypothetical green tulip problem, which encapsulates certain recurring investment dilemmas that afflict entrepreneurs operating under the hybrid intellectual property regimes available from both the domestic and international intellectual property systems. Without focusing on the technical operations of any of these hybrid regimes in detail, the green tulip exercises set out below will demonstrate why, from a structural perspective, they tend systematically to thwart the most socially desirable outcomes, especially with regard to follow-on innovations. The Article goes on to show how innovators and second comers working on common technical trajectories could better resolve these same problems by a more rational allocation of their collective costs of research and development ( R&D )

Compliance with the TRIPS Agreement: Introduction to a Scholarly Debate

The first symposium held on the proposals to include intellectual property rights within the Uruguay Round of multilateral trade negotiations\u27 was published by The Vanderbilt Journal of Transnational Law in 1989. It seemed only fitting to return to this same Journal with a retrospective evaluation of the finished product by members of the American Association of Law Schools\u27 (AALS) Intellectual Property Section in 1996. That product is Annex IC of the Marrakesh Agreement Establishing the World Trade Organization (WTO Agreement), better known as the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement or Agreement). This Agreement has already spawned a voluminous literature, including other symposiums, which attests to its cardinal importance and to the new departure it represents for international intellectual property relations. However, no previous symposium has sought to gauge the responses to these developments of the professors who teach intellectual property law at U.S. universities. In planning this year\u27s meeting of the AALS Intellectual Property Section, therefore, the officers felt the time had come to rectify this imbalance. The provisions of the TRIPS Agreement will set a new research agenda for the foreseeable future. At the compliance stage, the opinions of publicists will play a role in interpreting these provisions and, especially, in applying the WTO Agreement\u27s new dispute-resolution machinery to actual disputes between member states. By acquainting legislators, administrators, and industrialists with the spectrum of scholarly opinion in this country, we hope to better prepare them for the challenges and risks of the coming transitional period and the tensions it seems certain to elicit. The officers, therefore, invited a representative sampling of U.S. intellectual property scholars to explain and assess the TRIPS Agreement for the benefit of the many colleagues who gathered at the San Antonio meeting on January 4, 1996. Their stimulating, often passionate, and thoroughly heterogenous contributions comprise the bulk of this special Symposium Issue. In the introductory remarks that follow, I will try to fit the panelists\u27 observations into a larger framework and to distill some of their findings and insights concerning the future prospects for successful implementation of the TRIPS Agreement

Of Green Tulips and Legal Kudzu: Repacking Rights in Subpatentable Innovation

How to enable entrepreneurs to appropriate the fruits of their investments in cumulative and sequential innovation\u27 without impeding follow-on innovation and without creating barriers to en- try has become one of the great unsolved puzzles that the law and economics of intellectual property rights needs to address as the new millennium gets underway. This Article draws briefly from my earlier works to identify some of the key historical difficulties en- countered in protecting small grain-sized innovations that do not rise to the level of novel and nonobvious inventions or original and creative works of authorship. It then re-examines these difficulties through the lens of a hypothetical green tulip problem, which encapsulates certain recurring investment dilemmas that afflict entrepreneurs operating under the hybrid intellectual property regimes available from both the domestic and international intellectual property systems. Without focusing on the technical operations of any of these hybrid regimes in detail, the green tulip exercises set out below will demonstrate why, from a structural perspective, they tend systematically to thwart the most socially desirable outcomes, especially with regard to follow-on innovations. The Article goes on to show how innovators and second comers working on common technical trajectories could better resolve these same problems by a more rational allocation of their collective costs of research and development ( R&D )

Intellectual Property Rights in Data?

The international intellectual property system founded on the Paris and Berne Conventions in the late nineteenth century has been dominated by the patent and copyright paradigms, which articulate the legal protection of technological inventions and of literary and artistic works, respectively. Although this patent-copyright dichotomy was never as strictly observed abroad as in the United States, it nonetheless charted a relatively clear theoretical line of demarcation between legal incentives to create and the public interest in free competition. Any publicly disclosed technologies or information products that failed to meet the eligibility requirements of the domestic patent and copyright laws became public domain matter that anyone could freely appropriate. By the end of the twentieth century, in contrast, this line of demarcation had empirically broken down. The developed market economies, including the United States, enacted numerous special purpose intellectual property laws to protect industrial designs, plant varieties, integrated circuit designs, and other matter that typically failed to meet the eligibility requirements of either the patent or copyright models. The latest, and arguably most deviant, examples of this trend toward sui generis intellectual property rights are the European - and United States-sponsored initiatives in both national and international forums calling for creation of a new form of legal protection for the contents of databases. These initiatives aim to rescue database producers from the threat of market-destructive appropriations by free-riding competitors who contributed nothing to the costs of collecting or distributing the relevant data

Privately Legislated Intellectual Property Rights: Reconciling Freedom of Contract with Public Good Uses of Information

In an age of omnipresent clickwrap licenses, we acknowledge the need for a uniform set of default rules that would validate non-negotiable licenses as a mechanism for minimizing transaction costs likely to hinder economic development in a networked environment. However, we contend that any model of contract formation not driven by the traditional norms of mutual assent requires specially formulated doctrinal tools to avoid undermining long-established public good uses of information for such purposes as education and research, technical innovation, free speech, and the preservation of free competition. With the convergence of digital and telecommunications technologies, creators and innovators who distribute computerized information goods online can increasingly combat the causes of market failure directly-even in the absence of statutory intellectual property rights-by recourse to standard form contractual agreements that allow access to electronically stored information only on the licensor\u27s terms and conditions. In the networked environment, however, routine validation of mass-market access contracts and of non-negotiable constraints on users would tend to convert standard form licenses of digitized information goods into functional equivalents of privately legislated intellectual property rights. Firms possessing any degree of market power could thereby control access to, and use of, digitized information by means of adhesion contracts that alter or ignore the balance between incentives to create and free competition that the Framers recognized in the Constitution and that Congress has progressively codified in statutory intellectual property laws. Because existing legal doctrines appear insufficient to control the likely costs of such a radical social experiment, the main thrust of this Article is to formulate and develop minimalist doctrinal tools to limit the misuse of adhesion contracts that might otherwise adversely affect the preexisting balance of public and private interests. We believe such tools ought to figure prominently in any set of uniform state laws governing computerized information transactions, whether or not they emerge from the current debate surrounding a proposed Article 2B of the Uniform Commercial Code ( U.C.C. or the Code ). In Part I of this Article, we begin by identifying key misconceptions concerning the interface between federal intellectual property rights and state contract laws that have marred the drafters\u27 own notes and comments in the various iterations of Article 2B. We then explain how digital technologies, when combined with mass-market contracts, enable information providers to alter the existing legislative balance between public and private interests in unexpected and socially harmful ways. We further demonstrate that the uniform state laws proposed to validate these private rights have been crafted without balancing the social costs of legal incentives to innovate against the benefits of free competition, and without regard for the constitutional mandate to promote the [p]rogress of [s]cience and useful [a]rts.\u27\u27 On the contrary, the drafters of Article 2B empower purveyors of digitized information goods to undermine, by contract, long-standing policies and practices that directly promote cumulative and sequential innovation as well as the public interest in education, science, research, competition, and freedom of expression. In Part II, we discuss the new doctrinal tools with which we would empower courts to apply public-interest checks on standardized access contracts and on non-negotiable terms and conditions affecting users of computerized information goods. In so doing, we take pains to preserve the maximum degree of freedom of contract, not just with respect to negotiated terms generally, but even with respect to non-negotiable terms lacking any socially harmful or demonstrably anticompetitive impact over time. We also compare the costs and benefits of Article 2B, as refined by the addition of our proposed safeguards, with those likely to ensue if Article 2B were adopted in its present form. Here, we focus particularly on issues affecting the legal protection of computer software, on the role that the fair use exception of copyright law might play in information transactions generally, and on issues affecting bundles of factual information that cannot be copyrighted under existing laws. In Part III, we explore the deeper implications of a shift from the traditional, assent-driven model of contract formation to a model that validates non-negotiable contracts of adhesion containing socially acceptable terms and conditions. We show that a minimalist regulatory tool along the lines of our proposed public-interest unconscionability doctrine yields positive social benefits, despite the transaction costs and enforcement problems it logically engenders. We also explore the connection between the kind of non-negotiable middle ground we deem indispensable to a paradigm shift in contract formation and the need for a broader information policy. We conclude with a prediction that if Article 2B were to incorporate the safeguards we propose, it might better yield sound empirical data for devising the long-term information policies that elude us in our present state of ignorance and uncertainty

Expert-Augmented Machine Learning

Machine Learning is proving invaluable across disciplines. However, its success is often limited by the quality and quantity of available data, while its adoption by the level of trust that models afford users. Human vs. machine performance is commonly compared empirically to decide whether a certain task should be performed by a computer or an expert. In reality, the optimal learning strategy may involve combining the complementary strengths of man and machine. Here we present Expert-Augmented Machine Learning (EAML), an automated method that guides the extraction of expert knowledge and its integration into machine-learned models. We use a large dataset of intensive care patient data to predict mortality and show that we can extract expert knowledge using an online platform, help reveal hidden confounders, improve generalizability on a different population and learn using less data. EAML presents a novel framework for high performance and dependable machine learning in critical applications