Mark Lemley
William Neukom Professor of Law and Senior Fellow at the Stanford Institute for Economic Policy Research
Stanford Law School
Web page: http://www.law.stanford.edu/faculty/lemley/
Bio
Mark Lemley is the William H. Neukom Professor of Law at Stanford Law School and the Director of the Stanford Program in Law, Science and Technology. He is also a Senior Fellow at the Stanford Institute for Economic Policy Research and is affiliated faculty in the Symbolic Systems program. He teaches intellectual property, patent law, trademark law, antitrust, the law of robotics and AI, video game law, and remedies. He is the author of 11 books and 218 articles, including the two-volume treatise IP and Antitrust. His works have been cited more than 300 times by courts, including 19 times by the United States Supreme Court, and more than 40,000 times in books and academic articles, making him the most-cited scholar in IP law and one of the ten most cited legal scholars of all time. He has published 9 of the 100 most-cited law review articles of the last twenty years, more than any other scholar, and is the third most cited legal scholar in the world from 2016-2020. His articles have appeared in 24 of the top 25 law reviews and in top journals in other fields, including Nature Biotechnology, the American Economic Review, the Review of Economics and Statistics, and the Harvard Business Review, and in multiple peer-reviewed and specialty journals. They have been reprinted throughout the world and translated into Chinese, Danish, Japanese, Korean, Italian, Portuguese, and Spanish. He has taught IP law to judges at numerous Federal Judicial Center and ABA programs, has testified eight times before Congress, and has filed more than 70 amicus briefs in the U.S. Supreme Court and other courts.
Mark is of counsel at the law firm Lex Lumina. He litigates and counsels clients in all areas of intellectual property, antitrust, and internet law. He has argued 30 federal appellate cases and numerous district court cases as well as before the California Supreme Court. He has participated in more than three dozen cases in the United States Supreme Court as counsel or amici. His client base is diverse and has included Genentech, Dykes on Bikes, video game companies, artists, computer scientists, and nearly every significant Internet company.
Mark cofounded Lex Machina, Inc., a startup company that provides litigation data and analytics to law firms, companies, courts, and policymakers. Lex Machina was acquired by Lexis in December 2015.
Mark has been named California Lawyer’s Attorney of the Year twice. He received the California State Bar’s inaugural IP Vanguard Award. He won the 2018 World Technology Award for Law. In 2017 he received the P.J. Federico Award from the Patent and Trademark Office Society. Back when he was young, he was named a Young Global Leader by the Davos World Economic Forum and Berkeley Law School’s Young Alumnus of the Year. He has been recognized as one of the top 50 litigators in the country under 45 and one of the 25 most influential people in IP by American Lawyer, one of the 100 most influential lawyers in the nation by the National Law Journal, and one of the 10 most admired attorneys in IP by IP360. He is a member of the American Academy of Arts and Sciences, the American Law Institute, and the IP Hall of Fame.
Mark clerked for Judge Dorothy Nelson on the United States Court of Appeals for the Ninth Circuit and has practiced law with Brown & Bain, Fish & Richardson, Keker & Van Nest, and Durie Tangri. He has previously taught at Berkeley Law School and the University of Texas School of Law. In his spare time, Mark enjoys cooking, travel, yoga, and video games (at this writing, Zelda: Tears of the Kingdom).
Academic Appointments
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Professor, Stanford Law School
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Senior Fellow, Stanford Institute for Economic Policy Research (SIEPR)
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Faculty Affiliate, Institute for Human-Centered Artificial Intelligence (HAI)
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Member, Wu Tsai Neurosciences Institute
Program Affiliations
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Public Policy
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Symbolic Systems Program
Current Research and Scholarly Interests
intellectual property, Internet, and antitrust law; law and AI/robotics
2024-25 Courses
- Introduction to Intellectual Property
LAW 4005 (Win) - Video Game Law
LAW 4029 (Aut) -
Prior Year Courses
2023-24 Courses
- Intellectual Property and Antitrust Law
LAW 4006 (Aut) - Intellectual Property: Trademarks
LAW 4012 (Aut)
2022-23 Courses
- Introduction to Intellectual Property
LAW 4005 (Spr) - Remedies
LAW 7038 (Win) - Video Game Law
LAW 4029 (Win)
2021-22 Courses
- Intellectual Property and Antitrust Law
LAW 4006 (Win) - Intellectual Property: Trademarks
LAW 4012 (Aut) - Introduction to Intellectual Property
LAW 4005 (Spr)
- Intellectual Property and Antitrust Law
Stanford Advisees
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Doctoral Dissertation Advisor (AC)
Yutang Hsiao
All Publications
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Design Patents Aren't Patents (And It's a Good Thing Too)
GEORGE WASHINGTON LAW REVIEW
2024; 92 (4): 811-850
View details for Web of Science ID 001353519300002
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Illegal interlocks among life science company boards of directors.
Journal of law and the biosciences
2024; 11 (1): lsae005
Abstract
Competition between life science companies is critical to ensure innovative therapies are efficiently developed. Anticompetitive behavior may harm scientific progress and, ultimately, patients. One well-established category of anticompetitive behavior is the 'interlocking directorate'. It is illegal for companies' directors to 'interlock' by also serving on the boards of competitors. We evaluated overlaps in the board membership of 2,241 public life science companies since 2000. We show that a robust network of interlocking companies is present among these firms. At any given time, 10-20 percent of board members are interlocked; the number of interlocks has more than doubled in the last two decades. Over half of these interlocked firms report over $5 million in historical revenue, exceeding a legal threshold that makes an interlocking directorate a violation of antitrust law. Those interlocks are only illegal if the companies compete, even in part. Using the disease categories for which companies have sponsored clinical trials, we discover that a few markets are responsible for a large fraction of interlocks. We show that in dozens of cases, companies share directors with the very firms they identify as their biggest competitive threats. We provide a data-driven roadmap for policymakers, regulators, and companies to further investigate the contribution of anticompetitive behavior to increased healthcare costs and to enforce the law against illegal interlocks between firms.
View details for DOI 10.1093/jlb/lsae005
View details for PubMedID 38623556
View details for PubMedCentralID PMC11017978
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MYTHS AND REALITY OF PATENT LAW AT THE SUPREME COURT
BOSTON UNIVERSITY LAW REVIEW
2024; 104 (3): 891-963
View details for Web of Science ID 001249075900004
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THE EXCLUSIVE RIGHT TO CUSTOMIZE?
BOSTON UNIVERSITY LAW REVIEW
2023; 103 (2): 385-473
View details for Web of Science ID 001107325400005
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Trademark Spaces and Trademark Law's Secret Step Zero
STANFORD LAW REVIEW
2023; 75 (1): 1-70
View details for Web of Science ID 001216738400001
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FIRST AMENDMENT NEGLECT IN SUPREME COURT INTELLECTUAL PROPERTY CASES
SUPREME COURT REVIEW
2023; 2023: 85-123
View details for DOI 10.1086/729397
View details for Web of Science ID 001280218900001
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THE BENEFIT OF THE BARGAIN
WISCONSIN LAW REVIEW
2023: 237-286
View details for Web of Science ID 000981457000005
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Trademark Spaces and Trademark Law's Secret Step Zero
STANFORD LAW REVIEW
2023; 75 (1): 1-70
View details for Web of Science ID 001207493100003
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Editorial: Scarcity, regulation, and the abundance society.
Frontiers in research metrics and analytics
2022; 7: 1104460
View details for DOI 10.3389/frma.2022.1104460
View details for PubMedID 36778157
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Interfaces and Interoperability After Google v. Oracle
TEXAS LAW REVIEW
2021; 100 (1): 1-54
View details for Web of Science ID 000727582100001
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DISAPPEARING CONTENT
BOSTON UNIVERSITY LAW REVIEW
2021; 101 (4): 1255-1288
View details for Web of Science ID 000708455100001
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Does Alice Target Patent Trolls?
JOURNAL OF EMPIRICAL LEGAL STUDIES
2021
View details for DOI 10.1111/jels.12275
View details for Web of Science ID 000629285800001
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THE SPLINTERNET
DUKE LAW JOURNAL
2021; 70 (6): 1297–1327
View details for Web of Science ID 000623901200003
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Abandoning Trade Secrets
STANFORD LAW REVIEW
2021; 73 (10): 1–66
View details for Web of Science ID 000616979100001
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Chief Justice Webster
IOWA LAW REVIEW
2020; 106 (1): 299–323
View details for Web of Science ID 000612478100006
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THE MEDICARE INNOVATION SUBSIDY
NEW YORK UNIVERSITY LAW REVIEW
2020; 95 (1): 75–129
View details for Web of Science ID 000523565300002
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WITHOUT PREAMBLE
BOSTON UNIVERSITY LAW REVIEW
2020; 100 (2): 357–88
View details for Web of Science ID 000521728400001
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Playing Both Sides? Branded Sales, Generic Drugs, and Antitrust Policy
HASTINGS LAW JOURNAL
2020; 71 (2): 307–58
View details for Web of Science ID 000592383700002
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YOU MIGHT BE A ROBOT
CORNELL LAW REVIEW
2020; 105 (2): 287–361
View details for Web of Science ID 000623905300001
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UNFAIR DISRUPTION
BOSTON UNIVERSITY LAW REVIEW
2020; 100 (1): 71–131
View details for Web of Science ID 000510859000002
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Pledging intellectual property for COVID-19.
Nature biotechnology
2020; 38 (10): 1146–49
View details for DOI 10.1038/s41587-020-0682-1
View details for PubMedID 33020626
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Remedies for Robots
UNIVERSITY OF CHICAGO LAW REVIEW
2019; 86 (5): 1311–96
View details for Web of Science ID 000482252000002
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THE RIGHT OF PUBLICITY: PRIVACY REIMAGINED FOR A PUBLIC WORLD (Book Review)
MICHIGAN LAW REVIEW
2019; 117 (6): 1153–78
View details for Web of Science ID 000466323300011
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The Patent Enforcement Iceberg
TEXAS LAW REVIEW
2019; 97 (4): 801–33
View details for Web of Science ID 000463693500003
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HOW ESSENTIAL ARE STANDARD-ESSENTIAL PATENTS?
CORNELL LAW REVIEW
2019; 104 (2): 607–42
View details for Web of Science ID 000474436600002
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The Sound and Fury of Patent Activity
MINNESOTA LAW REVIEW
2019; 103 (4): 1793–1877
View details for Web of Science ID 000466081300006
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INTELLIGENT DESIGN
DUKE LAW JOURNAL
2018; 68 (1): 75–139
View details for Web of Science ID 000446060100002
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LAW, VIRTUAL REALITY, AND AUGMENTED REALITY
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
2018; 166 (5): 1051–1138
View details for Web of Science ID 000439406300001
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Can a Court Change the Law by Saying Nothing?
VANDERBILT LAW REVIEW
2018; 71 (3): 765–820
View details for Web of Science ID 000430528800002
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IS PATENT ENFORCEMENT EFFICIENT?
BOSTON UNIVERSITY LAW REVIEW
2018; 98 (2): 649–67
View details for Web of Science ID 000428988000006
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FUNCTIONALITY SCREENS
VIRGINIA LAW REVIEW
2017; 103 (7): 1293–1378
View details for Web of Science ID 000417027500001
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Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP
CAMBRIDGE HANDBOOK OF ANTITRUST, INTELLECTUAL PROPERTY, AND HIGH TECH
2017: 183–203
View details for Web of Science ID 000447853800011
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Patent Licensing, Technology Transfer, and Innovation
AMERICAN ECONOMIC REVIEW
2016; 106 (5): 188-192
View details for DOI 10.1257/aer.p20161092
View details for Web of Science ID 000379341300035
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READY FOR PATENTING
BOSTON UNIVERSITY LAW REVIEW
2016; 96 (3): 1171-1195
View details for Web of Science ID 000383116400018
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If You Can't Beat 'Em, Join 'Em? How Sitting by Designation Affects Judicial Behavior
TEXAS LAW REVIEW
2016; 94 (3): 451-484
View details for Web of Science ID 000371104900001
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Do Patent Licensing Demands Mean Innovation?
IOWA LAW REVIEW
2015; 101 (1): 137-189
View details for Web of Science ID 000364800300004
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Antitrust Arbitration and Illinois Brick
IOWA LAW REVIEW
2015; 100 (5): 2115-2133
View details for Web of Science ID 000357752400010
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Our Divided Patent System
UNIVERSITY OF CHICAGO LAW REVIEW
2015; 82 (3): 1073-1154
View details for Web of Science ID 000362464300001
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Faith-Based Intellectual Property
UCLA LAW REVIEW
2015; 62 (5): 1328-1346
View details for Web of Science ID 000359825100004
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IP IN A WORLD WITHOUT SCARCITY
NEW YORK UNIVERSITY LAW REVIEW
2015; 90 (2): 460-515
View details for Web of Science ID 000354418200002
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Does "Public Use" Mean the Same Thing It Did Last Year?
TEXAS LAW REVIEW
2015; 93 (5): 1119-1136
View details for Web of Science ID 000354074200002
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ANTITRUST ARBITRATION AND MERGER APPROVAL
NORTHWESTERN UNIVERSITY LAW REVIEW
2015; 110 (1): 1-62
View details for Web of Science ID 000368285700001
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Understanding the Realities of Modern Patent Litigation
TEXAS LAW REVIEW
2014; 92 (7): 1769-1801
View details for Web of Science ID 000338092200002
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THE AUDIENCE IN INTELLECTUAL PROPERTY INFRINGEMENT
MICHIGAN LAW REVIEW
2014; 112 (7): 1251-1304
View details for Web of Science ID 000335803800002
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DOES FAMILIARITY BREED CONTEMPT AMONG JUDGES DECIDING PATENT CASES?
STANFORD LAW REVIEW
2014; 66 (5): 1121-1157
View details for Web of Science ID 000336469600003
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WHY DO JURIES DECIDE IF PATENTS ARE VALID?
VIRGINIA LAW REVIEW
2013; 99 (8): 1673-1736
View details for Web of Science ID 000328714800002
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MISSING THE FOREST FOR THE TROLLS
COLUMBIA LAW REVIEW
2013; 113 (8): 2117-2190
View details for Web of Science ID 000328440800002
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Do applicant patent citations matter?
RESEARCH POLICY
2013; 42 (4): 844-854
View details for DOI 10.1016/j.respol.2013.01.003
View details for Web of Science ID 000317877600002
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SOFTWARE PATENTS AND THE RETURN OF FUNCTIONAL CLAIMING
WISCONSIN LAW REVIEW
2013: 905-964
View details for Web of Science ID 000344641400001
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The Fractioning of Patent Law
Symposium on the Connection between Intellectual Property and the Common Law
CAMBRIDGE UNIV PRESS. 2013: 504–513
View details for Web of Science ID 000325752400023
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THE REGULATORY TURN IN IP
HARVARD JOURNAL OF LAW AND PUBLIC POLICY
2013; 36 (1): 109-115
View details for Web of Science ID 000314324600011
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PATENT HOLDUP, THE ITC, AND THE PUBLIC INTEREST
CORNELL LAW REVIEW
2012; 98 (1): 1-45
View details for Web of Science ID 000311880000001
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EXAMINER CHARACTERISTICS AND PATENT OFFICE OUTCOMES
REVIEW OF ECONOMICS AND STATISTICS
2012; 94 (3): 817-827
View details for Web of Science ID 000307127600014
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Is Pepsi Really a Substitute for Coke? Market Definition in Antitrust and IP
GEORGETOWN LAW JOURNAL
2012; 100 (6): 2055-2117
View details for Web of Science ID 000307524000006
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Contracting Around Liability Rules
CALIFORNIA LAW REVIEW
2012; 100 (2): 463-486
View details for Web of Science ID 000302275200006
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THE MYTH OF THE SOLE INVENTOR
MICHIGAN LAW REVIEW
2012; 110 (5): 709-760
View details for Web of Science ID 000300756700001
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POINT OF NOVELTY
NORTHWESTERN UNIVERSITY LAW REVIEW
2011; 105 (3): 1253-1280
View details for Web of Science ID 000209030000006
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LIFE AFTER BILSKI
STANFORD LAW REVIEW
2011; 63 (6): 1315-1347
View details for Web of Science ID 000292576100004
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Patent Quality and Settlement Among Repeat Patent Litigants
GEORGETOWN LAW JOURNAL
2011; 99 (3): 677-712
View details for Web of Science ID 000288836000001
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Who Chooses Open-Source Software?
UNIVERSITY OF CHICAGO LAW REVIEW
2011; 78 (1): 139-164
View details for Web of Science ID 000290920900008
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EARNING EXCLUSIVITY: GENERIC DRUG INCENTIVES AND THE HATCH-WAXMAN ACT
ANTITRUST LAW JOURNAL
2011; 77 (3): 947-989
View details for Web of Science ID 000308377400009
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The surprising virtues of treating trade secrets as IP rights
Workshop on Trade Secrecy/Conference of the Engelberg Center on Innovation Law and Policy
EDWARD ELGAR PUBLISHING LTD. 2011: 109–139
View details for Web of Science ID 000299771300006
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OWNING MARK(ET)S
MICHIGAN LAW REVIEW
2010; 109 (2): 137-189
View details for Web of Science ID 000283967900001
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OUR BIZARRE SYSTEM FOR PROVING COPYRIGHT INFRINGEMENT
JOURNAL OF THE COPYRIGHT SOCIETY OF THE USA
2010; 57 (4): 719-742
View details for Web of Science ID 000287280100002
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IRRELEVANT CONFUSION
STANFORD LAW REVIEW
2010; 62 (2): 413-454
View details for Web of Science ID 000275388900003
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EXTREME VALUE OR TROLLS ON TOP? THE CHARACTERISTICS OF THE MOST-LITIGATED PATENTS
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
2009; 158 (1): 1-37
View details for Web of Science ID 000272666500001
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FENCE POSTS OR SIGN POSTS? RETHINKING PATENT CLAIM CONSTRUCTION
UNIVERSITY OF PENNSYLVANIA LAW REVIEW
2009; 157 (6): 1743-1799
View details for Web of Science ID 000268432200005
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Antitrust Law and Regulatory Gaming
TEXAS LAW REVIEW
2009; 87 (4): 685-729
View details for Web of Science ID 000264904100001
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THE SURPRISING VIRTUES OF TREATING TRADE SECRETS AS IP RIGHTS
STANFORD LAW REVIEW
2008; 61 (2): 311-353
View details for Web of Science ID 000263311500003
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Categorical analysis in antitrust jurisprudence
IOWA LAW REVIEW
2008; 93 (4): 1207-1270
View details for Web of Science ID 000257834900001
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Rethinking patent law's presumption of validity
STANFORD LAW REVIEW
2007; 60 (1): 45-72
View details for Web of Science ID 000251182500002
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Grounding trademark law through trademark use
IOWA LAW REVIEW
2007; 92 (5): 1669-1701
View details for Web of Science ID 000249457200003
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Patent holdup and royalty stacking
TEXAS LAW REVIEW
2007; 85 (7): 1991-2049
View details for Web of Science ID 000249052200010
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Should patent infringement require proof of copying?
MICHIGAN LAW REVIEW
2007; 105 (7): 1525-1536
View details for Web of Science ID 000247630400010
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Should property or liability rules govern information?
TEXAS LAW REVIEW
2007; 85 (4): 783-841
View details for Web of Science ID 000245345700001
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The (unnoticed) demise of the doctrine of equivalents
STANFORD LAW REVIEW
2007; 59 (4): 955-984
View details for Web of Science ID 000245296100005
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Terms of use
MINNESOTA LAW REVIEW
2006; 91 (2): 459-483
View details for Web of Science ID 000243288300004
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UNILATERAL REFUSALS TO LICENSE
JOURNAL OF COMPETITION LAW & ECONOMICS
2006; 2 (1): 1-42
View details for DOI 10.1093/joclec/nhl002
View details for Web of Science ID 000208133400001
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What the right of publicity can learn from trademark law
STANFORD LAW REVIEW
2006; 58 (4): 1161-1220
View details for Web of Science ID 000236699400003
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Patenting nanotechnology
STANFORD LAW REVIEW
2005; 58 (2): 601-630
Abstract
Universities and companies are rushing to the patent office in record numbers to patent nanotechnology inventions. This rush to the patent office is so significant that many law firms have established nanotechnology practice groups and the U.S. Patent and Trademark Office has now created a new technology class designed to track nanotechnology products. Three big differences between the emerging science of nanotechnology and other inventions make the role of patents more significant in this arena than elsewhere. First, this is almost the first new field in a century in which the basic ideas are being patented at the outset. In many of the most important fields of invention over the past century--computer hardware, software, the Internet, even biotechnology--the basic building blocks of the field were either unpatented or the patents were made available to all users by government regulation. In others, patents were delayed by interferences for so long that the industry developed free from their influence. In nanotechnology, by contrast, companies and universities alike are patenting early and often. A second factor distinguishing nanotechnology is its unique cross-industry structure. Unlike other new industries, in which the patentees are largely actual or at least potential participants in the market, a significant number of nanotechnology patentees will own rights not just in the industry in which they participate, but in other industries as well. This overlap may significantly affect their incentives to license the patents. Finally, a large number of the basic nanotechnology patents have been issued to universities, which have become far more active in patenting in the last twenty-five years. While universities have no direct incentive to restrict competition, their interests may or may not align with the optimal implementation of building-block nanotechnology inventions. The result is a nascent market in which a patent thicket is in theory a serious risk. Whether it will prove a problem in practice depends in large part on how efficient the licensing market turns out to be.
View details for Web of Science ID 000234233000005
View details for PubMedID 16395838
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Probabilistic patents
JOURNAL OF ECONOMIC PERSPECTIVES
2005; 19 (2): 75-98
View details for Web of Science ID 000229551800005
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Property, intellectual property, and free riding
TEXAS LAW REVIEW
2005; 83 (4): 1031-1075
View details for Web of Science ID 000228148800002
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Reducing digital copyright infringement without restricting innovation
STANFORD LAW REVIEW
2004; 56 (6): 1345-1434
View details for Web of Science ID 000222433400001
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Valuable patents
GEORGETOWN LAW JOURNAL
2004; 92 (3): 435-479
View details for Web of Science ID 000224284300001
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Balancing ease and accuracy in assessing pharmaceutical exclusion payments
MINNESOTA LAW REVIEW
2004; 88 (3): 712-721
View details for Web of Science ID 000189033500006
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Ending abuse of patent continuations
BOSTON UNIVERSITY LAW REVIEW
2004; 84 (1): 63-?
View details for Web of Science ID 000220224400002
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Policy levers in patent law
VIRGINIA LAW REVIEW
2003; 89 (7): 1575-1696
View details for Web of Science ID 000186590900001
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Are the US patent priority rules really necessary?
HASTINGS LAW JOURNAL
2003; 54 (5): 1299-1333
View details for Web of Science ID 000186251100001
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Anticompetitive settlement of intellectual property disputes
MINNESOTA LAW REVIEW
2003; 87 (6): 1719-1766
View details for Web of Science ID 000183650000002
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Biotechnology's uncertainty principle
PERSPECTIVES ON PROPERTIES OF THE HUMAN GENOME PROJECT
2003; 50: 305-353
View details for Web of Science ID 000237631600016
View details for PubMedID 14714698
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The growing complexity of the United States patent system
BOSTON UNIVERSITY LAW REVIEW
2002; 82 (1): 77-144
View details for Web of Science ID 000175042100002
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The end of end-to-end: Preserving the architecture of the Internet in the broadband era
UCLA LAW REVIEW
2001; 48 (4): 925-972
View details for Web of Science ID 000168115600003
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Who's patenting what? An empirical exploration of patent prosecution
Conference on Taking Stock: the Law and Economics of Intellectual Property Rights
VANDERBILT LAW REVIEW. 2000: 2099–2174
View details for Web of Science ID 000165810300016
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Private property
Conference on Cyberspace and Privacy - A New Legal Paradigm
STANFORD UNIV, STANFORD LAW SCHOOL. 2000: 1545–57
View details for Web of Science ID 000089374800014
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Encouraging software reuse
STANFORD LAW REVIEW
1997; 49 (2): 255-304
View details for Web of Science ID A1997WT67700002