in·no·va·tion \ˌi-nə-ˈvā-shən\.  noun.   1 : the introduction of something new 2 : a new idea, method, or device

It should be obvious to anyone that innovation is crucial to our lives and to our economy.  The question some have raised is whether or not the U.S. legal system is a driver or a damper on innovation. That is, are intellectual property (IP) and antitrust laws being used most effectively to foster innovation?

innovation-21Michael Carrier, a Professor of Law at Rutgers University School of Law – Camden has now addressed this question in his new book “Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law” (Oxford University Press, 2009).

From the author:

Innovation in the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law aims to reverse this trend. It offers ten revolutionary proposals to foster innovation. The proposals address generic drugs, pharmaceutical mergers, peer-to-peer (P2P) software, statutory damages, the Digital Millennium Copyright Act (DMCA), BlackBerry devices, biotechnology research tools, valid patents, and countless other cutting-edge challenges.

The proposals cover our patent system, our copyright laws and our antitrust laws, particularly as they apply to the pharmaceutical industry.  In the introduction, Carrier first delves into just what is innovation’s role in society.  The author then weaves together the relationship between IP laws and innovation and how each may be changed to increase innovation:

Copyrights

  • Relating to P2P software and other dual-use technologies:, Prof. Carrier calls for a return to protections for technologies “capable of substantial non-infringing uses” as described in Sony v. Universal City Studios;
  • Changes to statutory damages to eliminate the remedy for technology manufacturers (presumably because under willful infringement, certain technologies could rack up damages into the billions); and
  • Limit the Digital Millennial Copyright Act (DMCA) to only the creative acts the drafters envisioned, i.e., not devices with embedded software like printer ink cartridges.

Patents

  • A post-grant opposition system that provides a quicker and cheaper determination of validity;
  • Limiting the availability of using injunctions to shut down an infringer à la eBay v. MercExchange;
  • Broaden access to patented research tools in the biotech industry (plagued by what Prof. Carrier deems a disconnect between “law on the books” and “law on the ground”); and
  • Model agreements for material transfer agreements (MTAs) to increase access to materials needed for research.

Antitrust

  • A new framework to prevent mergers between firms in “Innovation Markets” like the pharmaceutical industry where such mergers could suppress R&D when there are not products on the market yet;
  • Adoption of standards via standards setting organizations (SSOs); and
  • Making settlements between brand and generic drug companies with reverse payments deemed presumptively illegal.

As you can imagine, there is enough in this book to make sure everyone comes away peeved with something.  Whether you find some of the proposals to be pure genius or pure foolishness, we think you’ll find this publication thought provoking on many levels.

To get more insight into these proposals, the book was the subject of a blog symposium by Truth on the Market with articles by various authors on their thoughts on the book as well as Professor Carrier’s response.  Each of the participants was asked to read the book and prepare a thoughtful and engaging post.

You can purchase “Innovation for the 21st Century: Harnessing the Power of Intellectual Property and Antitrust Law” from Amazon.  If that gets your blood boiling, you may also like Richard Susskind’s The End of Lawyers?: Rethinking the Nature of Legal Services.

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