Legal Writing and Research

This page lists papers and corresponding datasets that I wrote before beginning as a professor at Stanford Law School. For my latest work, please visit my SSRN page and faculty website.

Legal Scholarship

Patent Experimentalism, 101 Va.  L. Rev. (forthcoming 2015). Empirical progress in patent law depends on greater policy diversity (rather than the current emphasis on uniformity), but unconstrained “laboratories of experimentation” are suboptimal due to spillovers from local innovation policies. Instead, policymakers should adopt a third way between uniformity and local control: centralized promotion of policy variation. I analyze how different approaches to policy experimentation—including randomized experiments and a governance structure known as “experimentalism”—should be used in different contexts, with examples ranging from PTO management to international law.

Deference Mistakes, 82 U. Chi. L. Rev. (forthcoming 2015) (with Jonathan S. Masur). It is impossible to fully understand the holding of a case without understanding its “deference regime”—the governing standard of review or burden of proof—and yet courts often make “deference mistakes” in which they confuse one deference regime for another or ignore deference entirely. We document such mistakes in areas ranging from patent law to habeas, and we develop a model of how deference mistakes, coupled with particular asymmetries in adjudication, can lead to systematic doctrinal shifts.

The Google Shortcut to Trademark Law, 102 Calif. L. Rev. 351 (2014). Online search results are often more probative of trademark distinctiveness than the evidence courts currently rely on: if a mark is either inherently distinctive or commercially strong, then many top search results for that mark (plus related terms) refer to the source it identifies. Similarly, search results can reveal when a mark has become generic.

Cultural Cognition of Patents, 92 IP Theory (forthcoming 2014). Simply making empirical progress is not always enough to influence policy, as demonstrated by the polarized public discourse over issues ranging from climate change to gun control. The current discourse over patents appears to have a similar pathology, with cultural values shaping priors and preventing advocates from acknowledging the ambiguity of existing evidence.

Beyond the Patents-Prizes Debate, 92 Tex. L. Rev. 303 (2013) (with Daniel J. Hemel). Our new taxonomy of innovation policies highlights the overlooked benefits of R&D tax incentives: like patents, they elicit privately held information about R&D projects; like grants, they reduce the social-welfare costs of frictions in imperfect capital markets. Our taxonomy also sheds new light the distributive dimension of whether all taxpayers or only users of new technology bear the cost of its development. We also explore the tax-like nature of patents, which operate as a “shadow” sales tax that is not reflected in the federal budget.

Do Patents Disclose Useful Information?, 25 Harv. J.L. & Tech. 531 (2012). Download zipped folder with Stata files. Contrary to popular wisdom, my survey of 211 nanotechnology researchers found that many do read patents and do find useful technical information in them, and that they are not concerned that reading patents will subject them to liability for willful infringement. Respondents said patents “help you from going down a road that has already been traveled” and contain information “not found in other published literature.” But disclosure is far from perfect: respondents suggested that many patents are not enabled and that the 18-month publication delay limits their ability to learn about new technologies. The benefit of patent disclosures may not be sufficient to sustain the patent system’s costs, but my survey shows that disclosures have some value, and I argue that the benefit of further improving disclosures likely outweighs any loss in innovation incentives.

The Polarizing Impact of Science Literacy and Numeracy on Perceived Climate Change Risks, 2 Nature Climate Change 732 (2012) (with Dan M. Kahan et al.). Our study found no support for the claim that apathy over climate change is due to a deficit in comprehension. The most scientifically literate were not the most concerned about climate change; rather, they were the ones among whom cultural polarization was greatest.

What Are the Sources of Patent Inflation? An Analysis of Federal Circuit Patentability Rulings, 121 Yale L.J. Online 347 (2011). Download zipped folder with Excel spreadsheet and Stata files. Jonathan Masur’s Patent Inflation argues that Federal Circuit reversals of PTO patent rejections drive doctrinal inflation of patentability. In response, I surveyed five years of patentability rulings and found that such rulings are few in number and doctrinally insignificant. Rather, rulings in infringement suits likely play an important role because of the presumption of patent validity and the higher stakes in patent litigation.

How Many Patents Does It Take To Make a Drug? Follow-On Pharmaceutical Patents and University Licensing, 17 Mich. Telecomm. & Tech. L. Rev. 299 (2010). A dataset of all FDA-approved drugs from 1988 to 2005 shows that the number of patents per drug has increased over time, and over half of drugs with patents assigned to public-sector institutions such as universities have additional private-sector patents. Universities that want their drugs to be generically produced for patients in developing countries thus must request licensing terms that prevent private-sector patents from blocking patient access.

Access to Bio-Knowledge: From Gene Patents to Biomedical Materials, 2010 Stan. Tech. L. Rev. N1. Although public and scholarly debate has focused on whether patents on DNA sequences impede innovation, empirical studies indicate that access to materials is a much more serious problem than patents are for basic biomedical researchers. I argue that the access to knowledge movement should encompass these materials within a more expansive concept of “bio-knowledge,” and I discuss ways to address this problem through reducing transaction costs and improving access to official material depositories.

Comment, Addressing the Green Patent Global Deadlock Through Bayh-Dole Reform, 119 Yale L.J. 1727 (2010). By changing licensing practices for federally funded green energy technologies, the United States could mitigate the climate change treaty deadlock while still maintaining strong IP laws for private-sector innovation. Exclusive patent licenses should only be permitted when necessary for commercialization. Even absent a Bayh-Dole amendment, I argue that federal grant agencies could use their ex ante control over funding to nudge universities toward more socially responsible patenting and licensing policies, such as by adding examples related to licensing to things that qualify for “broader impact” on NSF grants.


Other Writing

Written Description Blog (founder of blog reviewing recent scholarship on patent law, IP theory, and innovation). Selected posts:

  1. Patent Costs & Benefits (July 2, 2013).

  2. Are R&D Tax Credits the Software Patent Solution? (May 15, 2013).

  3. Galasso & Schankerman: Do Patents Impede Cumulative Innovation? (Apr. 25, 2013).

  4. When Should Universities Patent? (Feb. 15, 2013).

  5. The Federal Circuit & International Patent Law (Feb. 13, 2013).

How Will Nautilus Affect Indefiniteness at the PTO?, Patently-O (June 5, 2014) (with Jonathan S. Masur).

Research Tax Credits: An Important Tool, 343 Science 485 (2014) (with Daniel J. Hemel).

Do Scientists Read Patents?, IPWatchdog (July 18, 2013).

Patent Troll Panel at Yale Law School, Patently-O (Mar. 14, 2013).

Nanotechnology Patents Are Useful but Could Be Improved, 7 Nature Nanotechnology, 770 (2012).

Reproducible Research: Addressing the Need for Data and Code Sharing in Computational Science, Computing Sci. & Engineering, Sept./Oct. 2010, at 8 (with Victoria Stodden et al.).

License To Green: Can We Have Clean Energy and Patents, Too?, Slate (Apr. 21, 2010).