Reply: The complexity of commons

Constructing Commons in the Cultural Environment, and responses to that article by Professors Thráinn Eggertsson, Wendy Gordon, Gregg Macey, Robert Merges, Elinor Ostrom, and Lawrence Solum. This short Reply comments briefly on each of those responses

Constructing commons in the cultural environment

This Article sets out a framework for investigating sharing and resource-pooling arrangements for information- and knowledge-based works. We argue that adapting the approach pioneered by Elinor Ostrom and her collaborators to commons arrangements in the natural environment provides a template for examining the construction of commons in the cultural environment. The approach promises to lead to a better understanding of how participants in commons and pooling arrangements structure their interactions in relation to the environments in which they are embedded, in relation to information and knowledge resources that they produce and use, and in relation to one another

Network Science and Law: A Sales Pitch and an Application to the Patent Explosion

The network may be the technological metaphor of the present era. A network, consisting of “nodes” and “links,” may be a group of individuals linked by friendship; a group of computers linked by network cables; a system of roads or airline flights -- or another of a virtually limitless variety of systems of connected “things.” The past few years have seen an explosion of interest in “network science” in fields from physics to sociology. Network science highlights the role of relationship patterns in determining collective behavior. It underscores and begins to address the difficulty of predicting collective behavior from individual interactions. This Article seeks first to describe how network science can provide new conceptual and empirical approaches to legal questions because of its focus on analyzing the effects of patterns of relationship. Second, the Article illustrates the network approach by describing a study of the network created by patents and the citations between them. Burgeoning patenting has raised concerns about patent quality, reflected in proposed legislation and in renewed Supreme Court attention to patent law. The network approach allows us to get behind the increasing numbers and investigate the relationships between patented technologies. We distinguish between faster technological progress, increasing breadth of patented technologies, and a lower patentability standard as possible explanations for increased patenting. Our analysis suggests that increasing pace and breadth of innovation alone are unlikely to explain the recent evolution of the patent citation network. Since the early 1990s the disparity in likelihood of citation between the most “citable” and least “citable” patents has grown, suggesting that patents may be being issued for increasingly trivial advances. The timing of the increasing stratification is correlated with increasing reliance by the Federal Circuit Court of Appeals on the widely criticized “motivation or suggestion to combine” test for nonobviousness, although we cannot rule out other explanations. The final part of the Article describes how network analysis may be used to address other issues in patent law

Users as Innovators: Implications for Patent Doctrine

User innovators range from commercial firms, which invent new production methods in expectation of competitive advantage, to individual hobbyists motivated entirely by their enjoyment of the inventive process. In this Article, I consider the implications for patent doctrine of the fact that many user innovators derive sufficient benefit simply from developing and using their inventions to motivate them to invest the effort necessary to invent them. Moreover, user innovators often benefit from freely revealing their innovations to others. Trade secrecy and patenting are not central to motivating this inventive activity. This picture of user innovation contrasts sharply with the seller innovator picture which dominates patent policy. In that picture, incentives for inventing, disclosing, and disseminating new technologies arise from the potential for recouping innovative investments through commercial sales. Because user innovators have different incentives, we should consider modifying patent doctrine so as to avoid the social costs of unnecessarily broad protection in contexts in which user innovation predominates. This Article lays out a framework for thinking about patent doctrine in the context of user innovation. It then explores one context in which user innovation plays a significant role-the development of inventions that can be used as research tools. Considering the specific incentives to invent, disclose, and disseminate research tools of different classes of research tool inventors leads to a proposal for a blanket exemption from infringement liability for research use. The Article also proposes an alternative, more modest, double-edged sword exemption, which would excuse noncommercial research use of all patented inventions and all research use of inventions made by non-profit inventors