Status, Subject, and Agency in Innovation

The Inequalities of Innovation will be rightly understood as a major scholarly assessment in intellectual property and innovation law for its naming of three key inequalities: the inequality of wealth and income, the inequality of opportunity to innovate, and the inequality of access to innovation. This Essay complicates the triadic framework discussed in The Inequalities of Innovation by interrogating its relationship to status harm and social identity and its relationship to broader discussions of social identities such as race and the law

First Things, First: A Principled Approach to Patent Administrative Law

The relevance of administrative law to patent law has been reinforced by the recent controversy in Tafas v. Dudas. This Essay examines two issues. First, this Essay, using the controversy over continuation practices at the heart of Tafas v. Dudas, examines the impact of patent exceptionalism on the development of patent administrative law. In particular, this Essay explores the way in which the Federal Circuit\u27s opinion in Merck v. Kessler can be used to (temporarily) resolve tensions in how Section 2 of the Patent Act is interpreted with respect to substantive rulemaking. Second, this Essay attempts to outline a series of first principles that may be useful in resolving the underlying tensions over agency decision-making in this area. This Essay contemplates two useful principles that might clarify how to resolve controversies over agency decision-making in patent law. First, the USPTO\u27s must be reconciled with standard administrative doctrine. The term reconciled is used deliberately to refer to the process of accommodating the unique demands of patent law to the administrative state. This is particularly important in light of the increased range of agency decision-making contemplated by recent patent reform efforts. Second, any process of reconciliation must recognize and account for the impact of third party participation that will arise from stronger administrative action. Outlining these first principles takes on significant importance given the potentially re-defining moment associated with current patent reform

Infrostructure(s): Administering Information

This Article, Infrostructure(s): Administering Information, considers how authoritative entities generate, manage, and produce informational structures, facilities, and architectures that support market creation and creative economy decision-making between private parties and entities. The term infrostructure, as opposed to other terms, such as infostructure and infosphere, suggests that infrostructures play vital roles in modern democratic life including producing new information resources, facilitating private transactions between private parties, and building the administrative state. This Article is divided into two parts. Part I discusses how information regulation is mediated through information forms and information systems with a focus on the materialities of information forms and systems. Part I then turns to how the infrostructure is built through three legal acts: (1) the act of instantiation, in which law culls certain information from a broader universe of social information to produce authoritative information; (2) the act of relation, in which law produces and reproduces social relations in information; and (3) the act of meaning, in which law considers the legal effects of instantiation and representation. Part II will demonstrate how the project of infrostructure helps us to present a new story of administrative legitimation, by re-reading diverse areas including administrative law, intellectual property law and constitutional law. Specifically, Part II examines how infrostructure supports three different accounts of administrative legitimation: structural legitimation, expertise legitimation, and cultural legitimation

Dynamic Patent Governance in Europe and the United States: The Myriad Example

This Article examines the emerging elements of a new model for patent governance. It is divided into four parts. In Section One, we develop a model of dynamic patent governance. This model extends the theoretical framework of network governance, to explain the emergence of networks in the decisionmaking infrastructure for the public and private actors in the patent system. Dynamic patent governance widens this theoretical framework in two key ways. First, dynamic patent governance, within its formal dimensions, is based on the idea that heterogeneous administrative actors regulate the grant and enforcement of patents. This challenges a perspective that sees patent examination agencies as the sole actor of importance within the patent system. Second, dynamic patent governance, within its informal dimensions, highlights that the patent administrative regime is shaped by the fluid relationship of diverse actors to these heterogeneous administrative actors. Section Two explores the consequences of a more dynamic patent governance context. Section Three applies this model to explore the recent Myriad litigation in the United States and Europe. Section Four focuses on some particular challenges that dynamic patent governance poses to: (1) the impulse to centralize patent administration and litigation; and (2) the efficiency of the patent system