A patent is a set of exclusive rights granted to an inventor for a limited period of time in exchange for a disclosure of an invention.
Patents in the Mainstream
Patent law was once perceived as a slow-paced, esoteric specialty, isolated from the general development of law “both by virtue of the technical specialization that was required to practice it, and the sense that patents did not matter much,” according to Professor Harold Edgar ’67. Much has changed.
With an exponential increase in patent litigation and increasingly complex technology involved, Professor Edgar, a patent expert on the Law School faculty, has seen this area of the law evolve into one that law students routinely want to understand. “Patent law is the quintessential legal institution that seeks to give people property rights on information, and its expansion has made it an enormously interesting area of legal practice,” says Professor Edgar.
As chairman of The Hastings Center, a research institute focused on health care and biotechnology, Professor Edgar is interested in the intersection of patents and bioethics. He has been asking important questions for decades and in the 1970s taught what may have been the first bioethics class in any American law school. One issue he raised back then was about a “futuristic” technology now known as in vitro fertilization. Today, he is still exploring the legal aspects and morality of patenting biological material, such as stem cells.
An Interdisciplinary Approach
Taking an interdisciplinary and comparative approach to IP is Professor Clarisa Long. Long was a molecular biologist before going to law school and a patent attorney in the biotech area before going into academia. She is still a registered patent prosecutor and advises companies frequently on the strategic use of their intellectual property. Professor Long has published several articles that address the roles and costs of patents in disseminating technological information.
She pushes students to consider why, for example, the copyright code has evolved significantly over the past 100 years, while patent law has experienced little change. “They are both exciting fields of law addressing many similar problems, but they are evolving in different ways,” she says. Professor Long has also written about the way the Patent and Trademark Office has maneuvered to become more politically powerful in the past two decades, and what affect such agency politics have had on the development of patent law.
Taking a theoretical perspective, Professor Long encourages students to look at law and economics together to understand IP. “Economics is a useful tool for helping determine what the law should be,” she says.
Untangling Forms of Regulation
Bringing an economist’s perspective to bear on IP is Professor Scott Hemphill. Trained as both a lawyer and an economist, Professor Hemphill adds a critical dimension to the faculty. His current research explores the various means by which law shapes incentives to create innovative products, while constraining an innovator’s ability to restrict competition.
Professor Hemphill’s work addresses a range of legal instruments that govern innovation, including antitrust law, intellectual property law, and industry-specific regulation. These disparate forms of regulation overlap and potentially conflict in the balance they strike between innovation and price competition. His current work is an effort to untangle and critically assess their interaction.
Some of Professor Hemphill’s recent work examines “pay-for-delay” settlements, in which a brand-name drug maker pays its generic rival to abandon a suit that threatens the brand-name firm’s patents. Because such settlements could restrain trade, they have attracted the attention of antitrust enforcers, courts, and commentators. Hemphill testified before Congress that pay-for-delay settlements not only keep drug prices higher, but are getting harder to prosecute because of their growing complexity. His solution: move regulation from federal courts to the Federal Trade Commission, which is better equipped to handle these antitrust suits.
Professor Hemphill enjoys seeing what used to be considered “esoteric IP questions, of interest mainly to specialists,” entering the popular consciousness.