Innovation is a commercially risky and legally perilous process. It is risky because large sunk costs are often required to initiate and sustain research, product development and other steps involved in the offering of the product and winning of the market. At the cusp of commercial success...

This Article examines the problem of patent hold-ups in standard setting organizations. The paper critically assesses the solutions currently used to address the problem and explains why the overlooked policy lever of patent misuse provides a best answer yet to patent hold-ups. This article is...

This paper examines the application of the essential facilities doctrine (EFD) to copyrighted works. It attempts to address three contemporary issues. First, it offers reasons why copyright has become subject to competition law regulation under the essential facilities doctrine. Second, it makes...

This paper argues that in the United States and the European Union's efforts to fine-tune the analytics of regulating innovation through antitrust or competition law, and in particular with regard to refusals to license, it would be timely to consider 'wikinomics', or peer production, as well as...

This Article discusses how the advent of genetically modified seeds challenge patent and antitrust policy norms, illustrated most vividly by the patent license restrictions employed by the chief purveyor of this seed technology – Monsanto Company – and the litigation surrounding those...

In an age of divisive politics, there has been a surprising amount of consensus on containing the cost of healthcare and ensuring adequate access to it. The Affordable Care Act's name itself indicates the aspirations of a president who campaigned for its passage through Congress. While his...

Courts, patent attorneys, and legal scholars have wrestled with operationalizing the doctrine of equivalents for nearly 150 years. A venerable exception to normal patent infringement rules, the doctrine is deceptively simple to state—it enables patentees to reach beyond the literal wording of...

Bowman v. Monsanto Co. signaled the end of an era of seed saving. Farmers must buy new seed for replanting or risk patent infringement. The familiar rhetoric of oppressed farmers belies the fact that Monsanto’s success rests in part on farmers prizing its innovations. Current trends indicate...

Few legal issues in recent years have captured the public’s attention more powerfully than litigation over standard essential patents (“SEPs”). This Article explains how SEP litigation overlaps with two other major centers of patent litigation – litigation involving smartphones and...