• The Role of IP in Industry Structure
    in: empirics, thickets  | 

    The Role of IP in Industry Structure

    I’ve long been a fan of Peter Lee’s (UC Davis) work at the intersection of IP and organizational theory. His latest article is another in a long line of interesting takes on how IP affects and is affected by the structure and culture of its creators. The latest draft, forthcoming in Vanderbilt Law Review, is titled Retheorizing the Impact of Intellectual Property Rights on Industry Structure. The draft is on SSRN, and the abstract is here:

    Technological and creative industries are critical to economic and social welfare, and the forces that shape such industries are important subjects of legal and policy examination. These industries depend on patents and copyrights, and scholars have long debated whether exclusive rights promote industry consolidation (through shoring up barriers to entry) or fragmentation (by promoting entry of new firms). Much hangs in the balance, for the structure of these IP-intensive industries can determine the amount, variety, and quality of drugs, food, software, movies, music, and books available to society. This Article retheorizes the role of patents and copyrights in shaping industry structure by examining empirical profiles of six IP-intensive industries: biopharmaceuticals; agricultural biotechnology, seeds, and agrochemicals; software; film production and distribution; music recording; and book publishing. It makes two novel arguments that illuminate the impacts of patents and copyrights on industry structure. First, it distinguishes along time, arguing that patents and copyrights promote the initial entry of new firms and early-stage viability, but that over time industry incumbents wielding substantial IP portfolios often absorb such entrants, thus reconsolidating those industries. It also distinguishes along the value chain, arguing that exclusive rights most prominently promote entry in “upstream” creative functions—from creating biologic compounds to coordinating movie production—while tending to promote concentration in downstream functions related to commercialization, such as marketing and distribution of drugs and movies. This Article provides legal and policy decision makers with a more robust understanding of how patents and copyrights promote both fragmentation and concentration, depending on context. Drawing on these insights, it proposes calibrating the acquisition of exclusive rights based on the size and market position of a rights holder.

    Professor Lee surveys six industries, looking for commonalities in how they are structured, and how IP fits in with entry and consolidation. This is not an empirical paper in the sense of, say Cockburn & MacGarvie, who found that patents reduced entry into the software industry unless the entrant had patent applications. Instead, it looks at the history of entry and consolidation in the different industries as a whole, using studies like Cockburn & MacGarvie (which is discussed in some detail) as the foundational base for the theoretical view that puts all the empirical findings together.

    The result is a sort of two dimensional axis (though Prof. Lee provides no chart, which wouldn’t have added much). He finds that, in general, IP leads to entry early in time, but as the industry (or product area) matures, then IP leads instead to consolidation, as companies find it easier to acquire IP than create it on its own in crowded areas. He also finds, however (and I think this is a key insight in the paper), that IP leads to more entry upstream (early creation stage) and more consolidation downstream (commercialization and marketing).

    This second axis is the more interesting one (there are lots of articles about development of thickets over time), but it is also the harder one to prove, and it depends a lot on your definition. For example, Professor Lee discusses video streaming services such as Netflix and Hulu but doesn’t discuss whether he views them as horizontally consolidated because there are so few of them. I’ve always thought of IP as fragmenting video streaming, because rights holders want to monetize their IP by holding on to it. Hence, we have to pay separately to get Star Trek: Discovery on CBS streaming, Hulu has many TV shows that Netflix doesn’t, and soon Disney will pull out of its exclusive deal with Netflix to create its own service. That’s 5 or more services I have to sign up with if I want to get all the shows (contrast this with the story he tells about music streaming, in which the music distributors all distribute all the music, and the distributor record labels consolidate to enhance market power against the distributor streamers). Indeed, this issue is so important that the services have (as Prof. Lee points out) vertically integrated by consolidating production with distribution (Netflix and Amazon making its own shows, Comcast and NBC/Universal, and AT&T buying Warner). Professor Lee discusses this as a penchant for consolidation, but it is not clear why IP drives it. I think it is consolidation caused by upstream entry (as he would predict) by the likes of Netflix and Amazon in the creation space, because they also happen to be distributors. But then why don’t the record labels become streamers? Why does this fragmentation work for video and not music? I’d be interested in hearing how Professor Lee breaks this down.

    As you can probably tell, this is a thoughtful and thought-provoking paper, and I recommend it, especially to those unfamiliar with the literature on the role of IP in industry organization and entry.

  • Convention On Biological Diversity Biennial Meeting Looks At How New Technologies Will Affect Its Objectives
    in: Biodiversity/Genetic Resources/Biotech, Copyright Policy, Development, English, Environment, Health & IP, IP Policies, Language, Patents/Designs/Trade Secrets, Subscribers, Themes, Trademarks/Geographical Indications/Domains, Traditional and Indigenous Knowledge, United Nations - other, UPOV, Venues  | 

    Convention On Biological Diversity Biennial Meeting Looks At How New Technologies Will Affect Its Objectives

    Member countries of the UN Convention on Biological Diversity are meeting in Egypt for its biennial conference of the parties, and the conference of the parties of its protocol on access and benefit sharing, until the end of November. New technologies …

  • Counterfeiters to target Millennial shoppers on Black Friday: How can brands fight back?
    in: advertising, Black Friday, Black Friday Shopping, brand, brand protection, Brands, counterfeit, Counterfeited Goods, counterfeiting, counterfeits, Guest Contributor, IP News, IPWatchdog Articles, IPWatchdog.com Articles, Millennials, online shopping, trademark, trademarks  | 

    Counterfeiters to target Millennial shoppers on Black Friday: How can brands fight back?

    Black Friday is one of the most important retail events of the year for brands and consumers alike. This sales event is particularly tempting for price-centric Millennials whose diverse buying habits put them at increased risk of falling for fakes. Re…

  • 形容詞+SHAPE


    $$ Also preferred sites for transducer means of substantially elliptical shapes of members hereof are off-centre and off major and minor axes. (USP6332029): 楕円形

    $$ The phase control means 6 depicted in FIG. 9 has a linear sh…

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  • Wednesday whimsies

    Forthcoming events. Regular readers need no reminder that the IPKat has a Forthcoming Events list which is frequently updated and carries details of all sorts of IP events — some of which are free or have substantial discounts for IPKat readers. However, in welcoming new readers we take this opportunity to alert them to this handy facility. 

    On the subject of forthcoming events, here’s a reminder that Scotland’s WS Society (an independent association for lawyers and one of the oldest professional bodies in the world, with over 500 years of history) is putting on “IP Law – Inside and Out” on the morning of Thursday 25 June in the Signet Library, Edinburgh. Carolyn Jameson (in-house counsel with Scotland’s first $1 billion web company, Skyscanner) is the keynote speaker; Katfriend Gill Grassie (Brodies) is in the chair. All sorts of experts are on the programme, including fellow Kat Eleonora.  Full details are just one McClick away, here.

    And while we’re about it, on 17 and 18 September 2015,  the first iClic Conference takes place in sunny Southampton, down on the English South Coast. It’s called “Enrolling Internet Intermediaries in the Law Enforcement Process: Challenges and Opportunities“, and again stars Eleonora plus a strong supporting cast. Interested? Click here for details.

    Around the weblogs. BritishBlackMusic.com/Black Music Congress and CultureTalkClub, in association with City Law School, have created a Talking Copyright forum for 19 June in order to discuss the continually contentious topic of copyright term reduction, explains Ben Challis on the 1709 Blog: with Kwaku on the panel, anything can happen — and probably will.  On the same weblog, Andy Johnstone reviews the latest developments in another long-term saga, the US debate over orphan copyright works. On the Class 46 blog, Nikos Prentoulis reminds us that the word Aspirin is not universally generic — though the Greek product of that name was not infringed by the name or packaging and get-up of the competing pain-killer SALOSPIR. Some marks are always likely to get into trouble, though: Laetitia Lagarde tells us about one of them — ‘GEL NAILS AT HOME’, for nail care products.

    One thousand up.  As is well known, the IPKat and his friends have a warm affection for the Journal of Intellectual Property Law & Practice (JIPLP), which Jeremy edits, Eleonora deputy-edits and on whose Editorial Board fellow Kats Birgit, Darren and Neil sit.  Well, JIPLP’s July issue has just been published (contents here) with a guest editorial from Neil (you can read it in full here), and the jiplp weblog — which publishes all the editorials, some of the best current intelligence case notes and news of books looking for reviewers — has this week welcomed its 1,000th email subscriber. Those of us who work with or write for JIPLP say a big thank you to our readers and also to publishers Oxford University Press for being so willing to trust us!

    Eagle-eyed readers may have spotted that this weblog has yet to report on a 21 May 2015 IP decision from the Court of Justice of the European Union, (CJEU), this being Case C‑546/12 P Ralf Schräder v Community Plant Variety Office (CPVO). The Kats’ only excuse is that this is a long, long ruling of 134 paragraphs on an abstruse issue that even the cleverest of them have problems keeping awake when they read it appreciating to the full.  In short, the CJEU — following the recommendation of the Advocate General — dismissed an appeal from the decision of the General Court, which in turn had dismissed an action against a decision of the Appeal Board of the CPVO.  This much-affirmed decision was to reject an application to annul the LEMON SYMPHONY Community plant variety right. The CJEU agreed that, in its decision, the General Court had erred in law when it held that the principle of examination of the facts by the CPVO of its own motion did not apply to proceedings before the Board of Appeal. However, that error did not necessarily mean that its judgment should be set aside. This was because, at a basic level, the General Court did not err in law in the taking of evidence when it found that Schräder had not adduced, to the requisite legal standard, the facts and evidence which made it possible to establish that the condition laid down in Article 7 of Regulation 2100/94 [“A variety shall be deemed to be distinct if it is clearly distinguishable by reference to the expression of the characteristics that results from a particular genotype or combination of genotypes, from any other variety whose existence is a matter of common knowledge on the date of application …“] had not been fulfilled in the technical examination of the variety, which would have justified a declaration of nullity for the purposes of Article 20(1) of that Regulation [which provides, inter alia, that nullity can be granted for failure to comply with Article 7]. All the other grounds of appeal were rejected. 

    AIPPI and AIPLA: comparing aspects of the US and European patent regimes. From Sam Kirsop (Freshfields) comes a note on a meeting this Monday between AIPPI (UK) and representatives of the American Intellectual Property Law Association (AIPLA) to share experiences of the patent regimes on both sides of the Atlantic. The meeting, chaired by Tom Mitcheson QC, took place at Freshfields’ offices in London and formed part of AIPLA’s European tour. AIPLA had met with CIPA and IPLA earlier in the day and will be travelling to Paris and Munich later this week.

    In the first half of the meeting, Peter Schechter (Osha Liang) and Steve Howe (Reddie & Grose) compared the inter partes review (IPR) procedure in the US and opposition proceedings before the European Patent Office (EPO). Peter explained that many of the expected benefits of the new IPR procedure had held true. However, as the Patent Trial and Appeal Board had received nearly 3,000 applications since the procedure came into effect in September 2012, it was now clamping down on the initiation of claims (particularly on the grounds of obviousness) and follow-on petitions. Peter also suggested that tight page-limits and the need to corroborate publication dates through live depositions had caused procedural difficulties. Steve described the well-established EPO oppositions procedure as relatively easy, cheap and flexible, but noted that it could be a slow process. During a lively Q&A, Peter and Steve drew further comparisons between the regimes, for example in relation to the type of claims being brought (primarily bio/pharma in the EU and electronics/telecoms in the US) and the different treatment of oral cross-examination.

    The amendments were finally made but
    the original claims were never found 

    Enrica Bruno (Steinfl & Bruno) and Chris Tunstall (Carpmaels & Ransford) then explored the US requirements of Written Description and the issue of “added matter” as outlined in Article 123(2) of the European Patent Convention. Enrica described the different methodologies used by the EPO and the USPTO to assess patent descriptions, explaining that the latter offered a clear structured methodology for assessing written description while the former only provided general guidance. Enrica highlighted the problems of drafting descriptions for both the European and US regimes and offered some practical tips for harmonising applications. Chris meanwhile focused on the “added matter” rules and explained the EPO’s strict definitive and functional approach to assessing applications, noting the need to draft amendments exhaustively to prevent the EPO from making incorrect assumptions about scope.

    Data: mine, or yours? Discovery in the Digital Age In this note, Katfriend and occasional contributor Kevin Winters writes: 
    “On 6 May this year, The Hague Declaration on Knowledge Discovery in the Digital Age was launched in Brussels.  The general argument contained within the Declaration appears to be that intellectual property laws should not protect access to the expression of ideas in a digital world and its creation follows a long-running debate on the approaches for undertaking research that are becoming available as a result of new technologies, and the ability to use these under the current IP law regime.  The main culprit under the Declaration appears to be the law of copyright: in the context of data mining, among other things, researchers may be required to seek the permission from a particular author before they make use of their works. 

    Many advocate the use of text and data mining in research, in order to identify patterns across disciplines.  This information, according to supporters of legislative reform, will allow for multidisciplinary questions to be talked more effectively.  The European Commission appears supportive of the process of data mining, having outlined in ‘A Single Digital Market Strategy for Europe’ that the use of text and date mining:

    “… may be hampered because of an unclear legal framework and divergent approaches at national level. The need for greater legal certainty to enable researchers and educational institutions to make wider use of copyright-protected material, including across borders, so that they can benefit from the potential of these technologies and from cross-border collaboration will be assessed, as with all parts of the copyright proposals in the light of its impact on all interested parties.”

    The difficulty here is that many states, having refused to legislate in favour of text and data-mining, are presumably not convinced of their merit. Alternatively, they may have significant concerns over their use.  The UK originally had similar issues with the use of data mining (here) but was able to overcome its fears by implementing a few limited exceptions to copyright law.  

    The changes made for the purposes of research (here) have been favourably received (here).  Indeed, in at least one major review of global copyright rules, researchers supported the approach that both the UK and Ireland have taken in respect of data mining.  The UK’s solution is not however foolproof in that the question of what is ‘non-commercial research’ continues to be an issue for researchers.  Further, the fact remains, as has been noted elsewhere (here), that there is a different attitude across Europe on the role of IP laws in the age of ‘Big Data’. 

    The kind of approach that the European Commission will take, in dealing with this, is as yet unknown.  It would be interesting to hear from fellow IP law enthusiasts on what they make of this latest foray into the debate on the role of copyright law in the digital age, and whether it will make any difference”.  

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  • A House bill to fight patent trolls may be falling apart at the last minute – Washington Post (blog)

    Washington Post (blog)
    A House bill to fight patent trolls may be falling apart at the last minute
    Washington Post (blog)
    The head of a powerful House committee faces a potential revolt from fellow lawmakers — some of them from within his own party — who believe a bill targeting abusive patent lawsuits is being watered down. Hours ahead of a crucial vote, the House …
    OVERNIGHT TECH: Patent fight shifts to HouseThe Hill
    House Judiciary to Markup Innovation Act this WeekIPWatchdog.com
    Rohrabacher Hammers ‘Patent Troll’ LegislationBroadcasting & Cable
    Reuters -Law360 (subscription) -R Street
    all 11 news articles »
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  • Jawbone Takes Second Bite at Fitbit in Pre-IPO Patent Suit – Bloomberg

    International Business Times
    Jawbone Takes Second Bite at Fitbit in Pre-IPO Patent Suit
    Fitbit Inc., the wearable devices maker on the verge of an initial public offering, was accused of patent infringement in a second lawsuit by Jawbone Inc. Jawbone says Fitbit’s fitness tracking devices copied technology protected by three patents owned
    Jawbone Sues Fitbit Again, This Time Over PatentsInternational Business Times
    Jawbone Hits Fitbit With Second Lawsuit in Two WeeksWall Street Journal (blog)

    all 4 news articles »

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  • Chesco biopharm firm gets patent for experimental Parkinson’s drug – Philadelphia Business Journal (blog)

    Philadelphia Business Journal (blog)
    Chesco biopharm firm gets patent for experimental Parkinson’s drug
    Philadelphia Business Journal (blog)
    The patent, awarded by the U.S. Patent and Trademark Office, covers the use of the Exton, Pa., biopharmaceutical company’s new drug candidate — called MLR-1019 — to treat dyskinesia associated with L-dopa therapy in Parkinson’s disease. Parkinson’s …
    Melior Discovery Receives Patent Approval from U.S. Patent and Trademark Digital Journal

    all 4 news articles »

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