IPSC: keynote

Keynote: The State of
IP Scholarship – Rebecca Eisenberg
When she began,
patent scholarship in the academy was minimal. 
Early 1980s, CAFC creation prolonged the ghettoization of patent law,
even though the field was poised for greater integration into the legal system
as law firms began to see the potential. Fed. Cir.’s early years provided
targets for scholarly commentary, but wasn’t interested in legal scholarship.
Not that motivating to write for them and be ignored.  Consolidation also meant that 1980s didn’t
see many patent SCt cases. So not clear who the audience was for it, and
doctrinal scholarship was out of fashion; interdisciplinary scholarship was
considered more intellectually serious.
Early years after
Bayh-Dole: people starting to get interested in patent law because it was in
their way; scientists encountering the patent system and worried about its
impact on traditional practices/norms/scientific exchange. They became an important
audience and source of info on emerging problems. They didn’t have many other
places to turn, so that worked out well for her research agenda/scholarly
impact.
Matters are much
better today: recognized that IP is important subject; our problem is one of
abundance/figuring out what to say against the backdrop of prior art.  Not a fan of articles that make the claim “this
article is the first to …” perhaps b/c she’s the benighted old guard, but also
b/c it’s distortionary of our framing. We should be in conversation w/each
other rather than w/2d year law review editors. 
[Yep. Also, there’s nothing new under the sun; I don’t believe in
originality, just better and worse (in context) ways of saying something.]  She was looking for predecessors and anybody
saying something remotely similar, not trying to stand out in an empty
field.  Rigorous backgrounds in other
fields=improvement—serious training equips high level interdisciplinary work.
That’s raised the standards for what counts as good interdisciplinary work.  New sources of data, analytical approaches—rigorous
empirical work asking good questions are more interesting/useful than what used
to exist.
Also, good doctrinal
scholarship remains important, b/c IP law is really important and we need
scholarship to guide and criticize doctrinal developments. Growing SCt interest
in patent law in recent years has been helpful in drawing attention.  And a lovely shoutout to legal blogs that
help link practitioners and scholars.
New law profs used to
start teaching w/o having done much writing; had to figure out how to become
legal scholars on the job. Other fields would scoff at amount of necessary
writing. Now
there’s fellowships and other backgrounds that mean publications are often substantial.  Fellowships do create a challenge for people
who can’t afford to live on a fellowship salary for a year and then move a
family, disproportionately women. 
[I think the change here is not necessarily to the field’s benefit, and other parts of the university still scoff and will continue to do so.] However, the old system placed inordinate
weight on law school grades, law review, and clerkships; especially people from
science backgrounds that reward terse writing could have struggles with that.
Also, interesting stuff happens in practice, and future scholars should be able
to immerse themselves in that environment before they start, then pause and reboot
in academic life. Our productivity is now great, though it’s possible to have
too much of a good thing; if you write a lot you tend to get better at it.
IP advantage: new
problems and issues are constantly coming at us.
Comments by: Jorge
Contreras: Economists like to name concepts after themselves: Coase theorem, Schumpeterian
innovation. We’re more modest; only judges get these intellectual vanity
plates. Still, theories can be intricately linked w/scholars who bring
attention to them, such as Lessig’s code as law and Eisenberg: in 1998, she
coauthored an article w/Michael Heller which brought to the biomedical and
legal academies the notion of the anticommons, drawn from Garrett Hardin’s tragedy
of the commons.
Predicted anticommons
in biotech didn’t materialize, but why?  Eisenberg
& Heller had recommendations, and NIH implemented them as early as 1999,
not as requirements but as recommendations. Other market changes have
undoubtedly had effects—changes in the patent system relating to biomedical
discoveries, such as utility and inability to patent sequences with unknown
function, as well as §101 eligibility cases. 
If the anticommons didn’t emerge, why do we still care?  It’s b/c the anticommons risk and theory is
incontrovertibly correct.  Striving to
prevent it from happening is policymakers doing their jobs.  The effects of the doctrinal change of the
sort in Mayo is probably an accident and not likely to recur. The fundamental
premise of excessive fragmentation of rights leading to underuse of resources persists.
Similarly, her insight on blockages seems correct: they’re more likely to occur
when innovation requires an affirmative step, like getting an organism from
someone, rather than when the burden is on the owner to sue—situations of
practical excludability.
Michael Mattioli:
Lovely tribute to Eisenberg as mentor from his time as a fellow.
Arti Rai: Similarly
lovely tribute, with emphasis on Eisenberg’s contributions to IP and health
law.
Tejas Narechania:
Ditto, with IP and administrative law/institutional analysis.
Moderator: Molly Van
Houweling

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