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

Evolving Innovation Paradigms and the Global Intellectual Property Regime

Since the negotiation of the Agreement on Trade-Related Aspects of Intellectual Property (TRIPS) in 1994, the innovative landscape has undergone dramatic changes due to technological advances in fields such as biotechnology, nanotechnology, and digital communications and computation. The increasing potential for user innovation, and open and collaborative innovation has brought an explosion of innovative activity that does not fit into the sales-oriented, mass market model which underlies the global intellectual property regime. In this Article, I argue that the debate over global governance of innovation should be expanded to account more fully for the implications of these changes. For the most part, criticisms of TRIPS have focused on its failure to account adequately for current needs for access to the fruits of innovative activity. In particular, critics have focused on the agreement\u27s failure to balance urgent public health needs appropriately against the marginal boost to pharmaceutical innovation supplied by patent protection in developing countries. Here I take a different (though complementary) tack, focusing on the ways in which TRIPS and related agreements enshrine an unduly narrow approach to innovation itself. An adequate global governance system for innovation must take account of the diversity and dynamism of modes of innovation. I propose a re-imagining of the World Intellectual Property Organization as a broader-based innovation policy organization and a global administrative law approach to accommodate evolving modes of innovation

Progress and Competition in Design

This Article argues that applying patent-like doctrine to design makes sense only if a design patent system is premised on a patent-like conception of cumulative progress that permits patent examiners and courts to assess whether a novel design reflects a nonobvious step beyond the prior art. If there is a meaningful way to speak of such an inventive step in design, then design patent doctrine should be based on that conception. If nonobviousness has no sensible meaning in design, then a patent system cannot work for design. At present, design patent doctrine is in disarray because it is unmoored from any conceptual underpinnings. Design patents are not needed to incentivize technological invention, because that kind of innovation is the subject of utility patent law. Because aesthetic expression is not susceptible of an “inventive step” judgment, progress in aesthetic expression is not appropriately incentivized by a patent-like system. Indeed, copyright long has rejected the very possibility of incentivizing aesthetic progress with a “creative step” requirement because it has found no metric along which to measure aesthetic progress. If there is any type of cumulative progress to be sought in design it must therefore involve the interplay between aesthetics and utilitarian function. Aesthetics and utility intersect at the integration of form and function and that, we argue, is where design patents must be justified, if they can be justified at all. Once stated, this point is intuitively appealing. The integration of form and function is what distinguishes industrial design both from purely artistic expression (for which we have copyright) and from technological invention (for which we have utility patent). The converse also follows: if there is no workable means to assess the nonobviousness of a given design’s integration of form and function, there can be no sensible design patent system

CDA 230 for a Smart Internet

This Article analyzes CDA 230 liability in light of the evolution of smart services employing data-driven personalized models of user behavior. As an illustrative case study, we discuss discrimination claims against Facebook’s ad-targeting platform, relying on recent empirical studies5 and litigation documents for factual background