My most recent article, Administrative Patent Levers was accepted for publication in the Penn State Law Review. This article looks at the U.S. Patent and Trademark Office (PTO) and how they implement rules that are technology-specific and policy-oriented. This is a major departure from the PTO’s prior role since they have historically been limited to procedural rule making by the courts. The PTO’s implementation of administrative patent levers signals a potential new era of greater policy making by the PTO.
Once a year, the legal studies group at the University of Florida’s Warrington College of Business provide an opportunity for legal studies scholars to meet and share their research at the Huber Hurst Legal Studies Research Symposium. A few weeks ago, I had the honor and pleasure of serving as a discussant at the Hurst Seminar. Papers were presented on a variety of topics, including: advertising law, the Foreign Corrupt Practices Act, corporate law, tax law, international civil procedure and the deregulation of the legal profession.
A wonderful thing about being an academic is being able to travel to interesting places, like Gainseville. My wife and I enjoyed the city from the get go, stopping to dine at eclectic, fun places like Boca Fiesta. The outdoor patio at Boca Fiesta is worth visiting and their fusion cuisine tacos are out of this world. Next door, the Palomino Pool Hall offers an opportunity to spot local pool sharks and townies out for a night of leisure.
To top things off, my wife bought me a painting from a local sidewalk artist named Bill Peglar. I immediately fell in love with the painting since, to me, it perfectly represents Florida. The artist even said that he could “feel the humidity” in the painting.
In a Wake Forest Law Review article, FSU Law professor Kelli Alces provides a novel and intriguing recommendation to re-shape how corporations are governed in America. Her recommendation is to eliminate the board of directors as the ultimate decision-maker. From a legal realism perspective, which looks at human behavior as a driver of legal outcomes, it is worth rethinking the value and efficacy of the board as the supreme governing body in Corporate America. As professor Alces mentions:
“A firm’s investors and other influential constituents use their contract rights against the firm to influence management and monitor management more carefully than the board can to protect their interests and investments in the firm.”
Delaware corporate law and other statutes, however, require that corporations be governed by a board with some independent members. Investors and entrepreneurs who want to opt out of this structure may opt for the limited liability company, or LLC. LLCs, unlike corporations, do not require a board as the ultimate overseers of business decisions. Under LLC law, the owners may delegate or assign responsibility among themselves, or to managers.
Professor Alces’ paper is accessible on the Social Science Research Network (SSRN), here.
A few days ago, I had the honor of lecturing MBA students at the Ross School of Business (U. of Michigan) about trademarks. In addition to meeting with the wonderful business law faculty at that august institution, the following recollections of that short trip vividly stand out:
Cold, bright Midwestern mornings.
Driving along the Huron River.
Walking through the crowded quadrangle.
Smartly dressed students.
Young people embracing timelessness.
To watch the trademark lecture I presented, click here.
Next week I’ll visit Munich, labeled as one of most beautiful cities in Europe to present a paper and lecture at the Max Planck’s Munich Intellectual Property Law Center (MIPLC).
The subject of the talk is patent advocacy before the U.S. Supreme Court. My co-author James Conley and I have measured the patent advocacy of various types of firms when they file briefs before the highest court of the land. In the past few years, the Supreme Court has taken a more active role in shaping patent laws and policy. This is in contrast to Congress, which has largely stalled in the area of patent reform.
What are some of the key issues facing patent reform today?
First, there is the issue of first-to-invent vs. first-to-file. The U.S. is one of the few countries that follows the first-to-invent rule. In most other countries, whoever wins the race to the patent office gets the patent (first-to-file rule). According to one senior Patent Office official I spoke with recently, there is a strong chance we might adopt the first-to-file rule. Some believe this would favor large companies over the small inventor.
Another major issue is damages. Patent infringement damages, particularly if the infringement is found to have been willful, can be extremely high. Some advocates, particularly the larger companies, want to limit damages.
Some of the theses issues have been recently addressed by the Supreme Court, the topic of our research.