May 22, 2014
IP and Business Law - Some Opening Thoughts
Posted by Michael Burstein

Thanks so much to Gordon Smith and the rest of The Glom for inviting me to guest blog for a couple of weeks.  As Gordon mentioned in his very kind introduction, I’m a professor at the Cardozo School of Law in New York City, where I teach Patent Law, Corporations, and Property.  My writing focuses on the intersections between and among these fields.  My view is that the relationships between IP and business law are numerous, complex, and rich.  But in our somewhat specialized sub-disciplines, IP and corporate law scholars don’t often talk to each other.  (There are exceptions, of course, and I’m thrilled to be part of a group that is working to change this – more on that below.)  In my posts over the next two weeks, I’d like to try to jumpstart some new conversations.  I think we have a lot to learn from each other. 

In this first post, I thought I would describe a few themes that bring IP and business law together, as a way of framing the more specific problems that I’ll discuss later in the week.  So to get things started, consider the following:

  • Law and entrepreneurship.  Gordon and others (Brian Broughman, Sean O’Connor, Usha Rodrigues, to name but a few) have done tremendous work over the last several years to explain the particular roles that law plays in shaping the environment for new ventures (and to build an interdisciplinary Law and Entrepreneurship Association of scholars interested in these issues).  In today’s economy, where many such ventures are based on intellectual assets, IP laws have a tremendous impact on the shape and success of those businesses.  To take just a sampling of issues: Ted Sichelman and his collaborators find, in the Berkeley Patent Survey, that entrepreneurs seek often seek patents for reasons unrelated to the classic rationale of preventing misappropriation, such as to better attract venture finance; Colleen Chien reports that the costs of patent “trolling” are disproportionately borne by startups; and federal technology transfer policies determine how innovative ideas move from the laboratory to the marketplace. 
  • Markets for technology.  The classic economic model of innovation is simple and usually involves a lone genius inventing in a garage.  But bringing an innovative product to market requires much more.  It requires linking the idea with capital and development resources for commercialization.  Forging those links requires players to overcome a range of bargaining challenges.  I’ve argued that IP may play a smaller role in overcoming those challenges than we think (so too has Peter Lee, who focuses on tacit knowledge), and continue to explore how transactions in information take place.  But at the same time, we are seeing the rise of robust secondary markets for patents and copyrights, which raise a host of concerns with which corporate scholars are already familiar.  If patents are to be treated as financial assets (as, for example, Michael Risch suggests), what disclosure regime should we apply?  Would a patent market function like a capital market?  Would that be socially desirable?
  • Innovation and corporate performance.  The popular business press is obsessed with innovation.  And rightly so – innovation is a critical driver of corporate performance.  But the organizational drivers of innovative behavior often depend on law.  Dan Burk & Brett McDonnell, and several others, for example, draw on the theory of the firm to explain how the strength and breadth of IP affects firms’ make-or-buy decisions with respect to technology.  Other innovation incentives – prizes, grants, R&D tax credits – have similar impacts on firm behavior, as Lisa Ouellette and Brett Frischmann have begun to describe.  Later in the week, I’ll write about work that I’m doing with Fiona Murray – a management professor at MIT Sloan – about the governance of innovation prizes, a problem that we think has much in common with the governance of innovation process in other institutional settings such as corporations.

I’m really excited to engage with the community here on these and other topics.  I look forward to hearing your thoughts, and to a fun couple of weeks!

 

Innovation, Intellectual Property, Law & Entrepreneurship, Technology | Bookmark

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