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