Cumulative innovation is central to economic growth. Do patent rights facilitate or impede such follow-on innovation? This paper studies the effect of removing patent protection through court invalidation on the subsequent research related to the focal patent, as measured by later citations. We exploit random allocation of judges at the U.S. Court of Appeal for the Federal Circuit to control for the endogeneity of patent invalidation. We find that patent invalidation leads to a 50 percent increase in subsequent citations to the focal patent, on average, but the impact is highly heterogeneous. Patent rights appear to block follow-on innovation only in the technology fields of computers, electronics and medical instruments. Moreover, the effect is entirely driven by invalidation of patents owned by large patentees that triggers entry of small innovators, suggesting that patents may impede the ‘democratization’ of innovation.

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Patents and Cumulative Innovation: Causal Evidence from the Courts*

We study how fragmentation of patent rights and the formation of the Court of Appeals for the Federal Circuit (CAFC) affected the duration of patent disputes, and thus the speed of technology diffusion through licensing. We develop a model of patent litigation which predicts faster settlement when patent rights are fragmented and when there is less uncertainty about court outcomes, as was associated with the “pro-patent shift” of the CAFC. We confirm these predictions empirically using a data set that covers patent suits in U.S. district courts during the period 1975–2000. Finally, we analyze how fragmentation affects total settlement delay, considering both the reduction in dispute duration and the increase in the number of patent negotiations.

Patent thickets, courts, and the market for innovation

This compilation was prepared for the Dudley Knox Library, Naval Postgraduate School, Monterey, CA.

Intelligence and Policy-Making: A Bibliography

The process of European constitutionalisation is met with extensive scepticism in current national legal and political spheres and in broader circles of public opinion across Europe. By shedding light on these concerns, this book reveals a widespread misunderstanding of constitutional federalism, which permeates the Member State courts, popular media, and many academic communities. A failure to address confusion over this fundamental concept is leading us towards impoverished development of the EU's 'Second Constitution', and even ensuring that the role of both domestic and international European courts in enriching the constitutionalisation process is overlooked and undervalued. In a bid to avoid such consequences, this book explores how federalism and further constitutionalisation - rightly understood in a dialogue of the European courts - may actually change this process and allow a clearer advance toward Europe's Second Constitution for, but also with, the people of Europe.

Europe's Second Constitution: Crisis, Courts and Community

No topic in land use regulation has been more important in recent years than the issue of takings: how far can land use regulation go before courts will find it illegal or require government to pay...

Takings and Land Use Regulation: A Review of Recent Law Journal Literature:

I LEGENDS OF THE WALL A Pre-FISA B FISA 1 Applications for FISA Surveillance Orders 2 Judicial Approval of FISA Surveillance Orders 3 The Govemment's Intended and Actual Use of FISA-Acquired Information a FISA Provisions Requiring a Certification About the Purpose of Proposed Surveillance and Authorizing Limited Judicial Review of That Certification b Minimization Procedures c Section 1806 of the FISA i Section 1806(a) ii Section 1806(b) C The "Primary Purpose" Test 1 Origin of the Primary Purpose Test 2 Linkage of the "Primary Purpose" Test to the FISA D The Department of Justice's Use of the Primary Purpose Test as the Foundation for the Wall E The Patriot Act's Supposed Demolition of the Wall II IN RE SEALED CASE A How the Case Arose 1 The FISA Trial Court Adopts the Attorney General's 1995 Procedures as Required "Minimization Procedures" 2 In 2002, the Department of Justice Changes Information Sharing Procedures To Implement the Patriot Act 3 The FISA Trial Court Rejects the Department's March 2002 Information Sharing Procedures 4 The Department of Justice Creates a Route for Appealing the FISA Trial Court's Opinion B The FISA Court of Review's Opinion 1 The Court of Review's Analysis of the Original FISA 2 The Court of Review's Analysis of the Patriot Act Amendments to the FISA 3 The Court of Review's Fourth Amendment Ruling 4 Summary of Court of Review's Opinion; Description of That Court's Disposition of the Case; Later Proceedings in the Case III ANALYSIS OF STATUTORY ISSUES AND THEIR TREATMENT BY THE FISA COURTS A Importance of Statutory Rulings in In re Sealed Case B Statutory Analysis of the Original FISA 1 The Purpose Provision of the Original FISA a Text of the Original FISA's Purpose Provision i The Primary Purpose Test's Defective Textual Interpretation ii The FISA Court of Review's Erroneous Conclusion That the Original FISA's Purpose Provision Did Not Limit the Government's Intended Prosecutorial Use of Foreign Intelligence Information iii The Requirement that Achievement of a Foreign Intelligence Purpose be the Primary Purpose for Seeking a FISA Surveillance Order iv The Permissibility, Under the Original FISA, of the Government's Using FISA Surveillance for the Primary (or Even the Sole) Purpose of Investigating and Prosecuting Crime of any Type When the Government Intended the Prosecution to Serve a Foreign Intelligence Purpose v Summary of Textual Analysis of the Original FISA's Purpose Provision b Legislative History of the Original FISA's Purpose Provision i Legislative History Showing that the FISA Purpose Provision Limits the Type of Information That can be Sought as Well as the Intended Use of That Information ii Legislative History Seemingly Supporting the "Primary Purpose" Test iii Legislative History on the "Noncriminal" Standard for FISA Surveillance iv Scarcity of Legislative History Citing Primary Purpose Case Law 2 Provisions on Minimization Procedures a Text of FISA Provisions on Minimization Procedures b Legislative History of Minimization Procedures C …

The Patriot Act and the Wall between Foreign Intelligence and Law Enforcement

This paper is being prepared for a symposium sponsored by the Court of Federal Claims to recognize the twentieth anniversary of the Federal Courts Improvement Act of 1982 ("FCIA"). The paper describes the history and purposes of the FCIA and assesses whether those purposes have been met. The paper concludes that, overall, the FCIA has achieved its purposes. In addition to making that assessment, the paper uses the FCIA's history to discuss the conditions necessary for successful enactment of judicial reform legislation. The paper also discusses the directions that future judicial reform might take in order to build on the FCIA's success.

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The Provenance of the Federal Courts Improvement Act of 1982

Administrative law : examples and explanations

In Kyllo v. United States, the United States Supreme Court concluded that the thermal imaging of a home by law-enforcement officials was a "search" subject to the Fourth Amendment. The Court reached this conclusion by a five-to-four vote, with Justice Scalia writing for the majority. In reaching this conclusion, the Kyllo majority purported to rely on the well-established test of Katz v. United States, 389 U.S. 347 (1967), under which government conduct constitutes a search when it interferes with a person's reasonable expectation of privacy. This article argues, however, that the Kyllo majority actually departed from the Katz test, and that it did so to avoid the privacy-eroding effect of the test that Justice Scalia had criticized in a prior case, writing only for himself and Justice Thomas. Because Kyllo departs from the Katz test, it will be harder for the Court in future cases to use the Katz test - as Justice Scalia believes the test has been used in the past cases - to preserve what he regards as the overly broad presumption that all warrantless searches are unconstitutional. Thus, Kyllo reflects an ascendance of Justice Scalia's view of the Fourth Amendment. The ascendance is only partial, however, because it appears that a majority of the Court would still use the Katz test, rather than Justice Scalia's original-understanding approach, in some circumstances.

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Kyllo V. United States and the Partial Ascendance of Justice Scalia's Fourth Amendment

The recent decision in James v. City of Boise encapsulates the current civil rights turmoil and the legal system’s inadequate response to it. In James¸ the U.S. Supreme Court reversed a decision in which the Idaho Supreme Court (1) awarded attorney’s fees against a civil rights plaintiff despite her credible claim of excessive police force and (2) denied that it was bound by U.S. Supreme Court decisions interpreting the federal statute authorizing the award. Although the Court in James reaffirmed the state courts’ well-settled duty to obey the Court’s decisions on federal law, this article shows that the duty rests on precedent that is shallow — consisting almost entirely of dicta — and murky in defining the legal source of the duty. This article contributes to the scholarship by examining the Court’s precedent in some detail and by proposing that even if state courts need not obey the Court’s decisions interpreting the federal constitution, they do have a duty to obey the Court’s decisions interpreting federal statutes.

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Richard Henry Seamon

Papers

The Patriot Act and the Wall between Foreign Intelligence and Law Enforcement

The Provenance of the Federal Courts Improvement Act of 1982

Administrative law : examples and explanations

Kyllo V. United States and the Partial Ascendance of Justice Scalia's Fourth Amendment

Supreme Court Supremacy in a Time of Turmoil: James v. City of Boise